Immigration Solicitors

The Convention and Protocol Relating to the Status of Refugees (Refugee Convention) allow for individuals to seek international protection on the basis of race, nationality, imputed political opinion, religion and membership of a particular social group.

The main route taken by refugees seeking international protection is by way of illegal entry into the country of refuge or even attempting to leave through the UK to a third country in the hope of seeking protection elsewhere. Upon entry to the UK, however, most of refugees risk being prosecuted for immigration-related offences such as using false documentation, having no passport at all, or using deception to gain entry.

It was very common after the coming into force of the Identity Cards Act 2006 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, for refugees, who fled their war-torn countries, to be convicted and imprisoned immediately after arrival.

Although article 31 of the Refugee Convention incorporated into the domestic law provides for statutory defence, criminal practitioners had been taking too criminalistic an approach to the available defence provisions. They often gave incorrect advice to the confused new arrivals as the practitioners were mainly unfamiliar with the availability of any defence to the offences.

In some cases the criminal courts made a recommendation for deportation of the refugee following the service of his sentence. In one case, defence counsel conceded that recommendation for deportation was inevitable given the seriousness of the offence (using a false passport to enter the UK to seek asylum).

Many genuine refugees have spent time in prison following their convictions and have subsequently had their asylum claims refused on the basis of credibility issues derived from the very fact that they had criminal convictions. The simple reason for these is that refugees who are arrested and charged with possession of false documents is wrongly advised to plead guilty without being advised of the protection offered to them under Article 31 of the Refugee Convention.

The recent influx of convictions came about despite the fact that the decision in Adimi in 1999 had exposed a serious lacuna in our domestic law, which had failed to provide any meaningful protection for refugees against criminal penalties. Lord Justice Simon Brown carried thorough examinations of the scope of article 31 of the Refugee Convention, and this judgement prompted the enactment of the Immigration and Asylum Act 1999 incorporating article 31 of the Refugee Convention into section 31 of this Act.

However the above did not safeguard the rights of vulnerable asylum seekers, and many of them were caught in the net of new legislation primarily designed to prevent terrorism and ID fraud for other criminal purposes. Even victims of trafficking were further victimised by our government and some ineffectual practitioners.

A new phase of rather repeated development in this area of law began with the case of Asfaw in the House of Lords where Lord Bingham held:

“I am of opinion that section 31 should not be read (as the respondent contends) as limited to offences attributable to a refugee's illegal entry into or presence in this country, but should provide immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit.

This interpretation is consistent with the Convention jurisprudence to which I have referred, consistent with the judgment in Adimi, consistent with the absence of any indication that it was intended to depart in the 1999 Act from the Convention or (subject to the exception already noted) Adimi, and consistent with the humanitarian purpose of the Convention.

It follows that the jury in the present case, on finding the conditions in section 31 to be met, were fully entitled to acquit the appellant on count 1, as the respondent then accepted, even though the offence was committed when the appellant was trying to leave the country after a short stopover in transit”.

The young appellant in MMH [2008] EWCA Crim 3117 initially pleaded guilty to the offence of possessing a false passport and was sentenced to 10 months imprisonment. As he had not been advised on the availability of statutory defence under which he could have succeeded, his conviction was quashed by the Court of Appeal. This case also gave a wide interpretation of section 31(2)* . If someone who spent time in transit or in a third country may not have been considered to have ‘stopped’. This interpretation was confirmed by the Court of Appeal in Mohamed [2010] EWCA Crim 2400 considering four conjoined cases from guilty pleas. The Court held that ‘if the circumstances and instructions generate the possibility of mounting a defence under s. 31 of the 1999 Act, there is simply no excuse for a failure to do so’.

More recently the Court of Appeal in R -v- Mateta & Others [2013] EWCA Crim 1372 allowed the appeals and quashed the convictions of the defendants as it was accepted that they had not properly been advised in relation to Section 31 of Immigration and Asylum Act 1999.

It should, however, be noted that the statutory defence does not provide refugees with an absolute defence against the potential offences. In Jaddi, R. v [2012] EWCA Crim 2565, the Court of Appeal concluded that

“It is certainly open to a tribunal of fact to conclude and in many cases it may be the right conclusion, that there is simply no reason for such a traveller not to identify himself the moment he is in friendly official hands. Whether that applies to this defendant or not remains to be decided. The point has never been investigated and nor has the transit question where his case is rather stronger. We are satisfied that there was a defence under section 31(2) which was available to him to advance and which was not advanced because of the conscientious but in the end over summary advice which he received. For those reasons, the conviction must be quashed.

Although this is an issue that has been going on for a number of years, there are people still affected by this. Even if the individuals are subsequently granted refugee status they will still have the criminal conviction on their record which in turn adversely affect their prospects of applying for settlement, citizenship, or even employment. Therefore, in the recent months the Criminal Cases Review has referred a number of cases of refugees convicted for possession of false documents contrary to Section 25 of the Identity Cards Act 2006.

It is therefore highly advisable to immigration practitioners to look into the cases of those clients who have immigration-related convictions with a view to referring them to criminal practitioners for possible appeal against the convictions.

*“If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, [the defence] only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.”

About the author:Public Law Solicitor Bahar Ata

Bahar joined Duncan Lewis & Co in November 2011 and is an accredited Supervisor and Senior Immigration caseworker under the Law Society's Immigration and Asylum Accreditation Scheme. Bahar is a member of the Chartered Institute of Legal Executives.

Bahar has over 6 years experience specialising in Immigration and Asylum, representing clients in all types of immigration and asylum matters from initial applications through to appeals at the Tribunal and the higher courts. Bahar has in depth experience of representing clients at the High Court in their judicial review matters.

She also has a very good knowledge of the procedures involved within the Court of Appeal and the Supreme Court having represented clients in matters where the decision of the Supreme Court changed the jurisprudence in relation to the Immigration Rules in the UK.

Most notable cases Bahar has been extensively involved with are:

Ahmed Mahad & Others -v- ECO [2009] UKSC 16; in which the Supreme Court held that individuals sponsoring family members to join them in the UK can rely on third party support.

AM (Jamaica) -v- SSHD [2008] EWCA Civ 1408; the Court of Appeal remitted the matter back to the Tribunal to consider the Article 8 rights of children in deportation appeals.

Other notable cases include:

R (on the application of QB) -v- SSHD [2010] EWHC 483

Odawey -v- ECO [2011] EWCA Civ 840

Muse and others (by their litigation friend Ali) v Entry Clearance Officer [2012] EWCA Civ 10

Bahar is fluent in Farsi.