Public Law Solicitors

You’re fleeing your country, being persecuted for your political beliefs. You arrive in the United Kingdom to claim asylum: a place of safety and a firm advocator of human rights. You believe that you will be treated with dignity and respect. Instead you are arrested at the port you entered and charged with having no documentation. You are imprisoned; something you had sought to avoid in your own country. You have had limited access to your solicitor and your asylum application is running concurrent to a criminal charge against you for entering the Untied Kingdom without papers. This is, unfortunately, not an uncommon scenario.

Under Section 2 of the Immigration and Asylum Act (Treatment of Claimants) 2004, it is an offence to enter the United Kingdom without official documentation that is in force and that satisfies the UKBA of your identity and nationality or citizenship. For many asylum seekers, perhaps the last item you may think to flee your country with is your passport or national identity card; this may identify you to the authorities that you are fleeing. Your main thought is to reach a place of safety and cross over the border to claim asylum.

Our case

We acted for a client who, having fled Syria, stayed in Turkey for 11 months, though realising that as a Kurd he was not safe there either, until with the help of an agent he fled to the United Kingdom. The agent, as they always do, handled the passport and papers. Having landed at Heathrow, the client was left airside and told to wait for the agent to come back. He did not return.

The client was questioned by the immigration officials. From the outset it was clear that the client was going to be making a claim for asylum. Of Kurdish ethnicity and from Syria, it was clear that at the very least he had an arguable claim for asylum. In collaboration with, and upon advice from the UKBA, the CPS charged the client with an offence under S2 of the 2004 Act. He was remanded in custody.

The client is now in the ridiculous predicament where he may be serving longer on remand prior to his trial than he will once he is sentenced. This is because unless he pleads guilty, he is likely to spend longer on remand before trial than the sentence imposed if he is indeed found guilty. Thus if the matter proceeds to a full trial, whatever the verdict, the client will be released immediately into immigration detention.

In the meantime the client also has to concentrate on his claim for asylum. Despite this seemingly no win situation Article 31 of the Refugee Convention. S31 of the Immigration Act 1999 is a defence available for asylum applicants in the above scenario. This provides that, provided you have come directly from a country where your life or freedom is threatened and present yourself to the authorities without delay, show good cause for your illegal entry and presence in the United Kingdom and make a claim for asylum as soon as reasonably practical – this defence is available to you. It has been held that an applicant comes ‘directly’ to the UK for these purposes, even if he passes through a third country on route, if he can show a good reason for not claiming asylum in that country.

However the CPS has refused to drop the prosecution, and have further refused to stay the prosecution’s case pending the outcome of the client’s asylum application. This appears to be a further waste of resources, time and money for both the CPS and the client’s criminal representatives - should the client’s asylum application be successful, then their own guidelines state that it is very doubtful that it is in the public interest to prosecute the client. Despite several attempts at negotiation and threats of Judicial Review, the CPS refused to concede and continued with the prosecution.

A Judicial Review was lodged, and a temporary stay of the prosecution’s case was granted.

In dealing with this scenario, there has been a lack of transparency by the UKBA in identifying their processes and procedures used to deal with undocumented asylum seekers. Despite requests for this information, the UKBA have not been forthcoming. It is hoped that a Judicial Review will force the UKBA to disclose their procedures and practices, if any, and rectify them in order to establish full and frank procedures available for disclosure, so that future asylum seekers are not put in the same predicament as this client.

Update

Since writing the first draft of this article, the application for judicial review was refused permission at the renewal hearing on 17 October 2011.

In the judicial review, SSHD relied upon the fact that our client had not come ‘directly’ from the country from which he was claiming he was at risk of persecution in the first instance, as he had spent 11 months in a second country where he theoretically could have claim asylum. If the client had come ‘directly’ from his country of origin, then, they accepted, no prosecution should have been pursued.

As noted above, the word comes ‘directly’ has been held to apply where there is a good reason for not claiming asylum in a third country on route. However, Collins J held that this amounted to a defence which should be raised in the Criminal Courts and not be dealt with by way of judicial review.

It was therefore the judgement of Collins J that the client had an alternative remedy: i.e. that he could argue his point in the Magistrates’ Courts. With respect to the learned judge it is hard to follow the logic of this position, as the claim was that his prosecution was oppressive, especially as it would inevitably result in substantial time spent on remand. An acquittal would not in itself resolve that issue justly, nor does the Magistrates’ Court have the power to consider whether prosecution is oppressive on these grounds.

The client has subsequently been granted full refugee status. It is anticipated that his prosecution will now be discontinued. Although this is good news for our client, it is a missed opportunity for the higher courts to consider S2 and Article 31 in a comprehensive manner.