“It was like some false hearing. I was a political prisoner and I escaped to save my life. How can I be treated as a criminal for that?” ~ quoted in Liz Hales
My research explores the prosecution of refugees for offences relating to entry to or presence in the UK without any―or insufficient―reference to article 31(1) of the Refugee Convention. These offences include using a false passport or deception to enter or exit the UK or failing to produce a passport on entry. Article 31(1) prohibits the penalisation of refugees for such offences provided that certain criteria are met. The plight of refugees wrongfully prosecuted for these offences was first highlighted by Liz Hales and Richard Dunstan in the 1990s. Shortly afterwards, in R v Uxbridge Magistrates Court ex parte Adimi  EWHC Admin 765 (29 July 1999), the High Court held that the prosecution of asylum seekers for offences arising from the use of false documents or deception was unlawful where the prosecution had occurred without regard to the protection from the imposition of penalties contained in article 31(1) of the Refugee Convention. The government then enacted section 31 of the Immigration and Asylum Act 1999 which provides a defence, based on article 31(1), to a specific list of offences. When section 31 was debated in the House of Lords, the government assured the House that it would be a rare case that was prosecuted as most could be dealt with administratively. In rare cases, section 31 would provide a safety net.
Despite the enactment of section 31, prosecutions continue (see recent newspaper and blog reports). Ana Aliverti has shown in her research how refugees prosecuted for not having a passport are dealt with by those they come into contact with in a way which is bureaucratic, cursory and mechanical. Of those who are prosecuted, defence lawyers routinely advise guilty pleas. These cases are also characterised by a failure of investigation by the police and the Crown Prosecution Service (CPS). Prosecutors do not appear to consider the question of refugee status as part of the process of considering whether it is in the public interest to pursue a prosecution. It is striking that in the analogous cases of offences committed by victims of human trafficking (related to their status as trafficked victims), the CPS has worked proactively and produced excellent guidance for prosecutors. All the cases I have come across have involved claims for asylum on entry or in transit and have involved people suffering trauma as a result of their flight from persecution. They later recount persecution such as torture (including rape) which they or their families have suffered. While it can take time for refugees to open up about their experiences, the signs are clear on arrival, from the claim of asylum to the use of false documents. There is nevertheless a failure by prosecutors, lawyers and courts to identify those who are protected under article 31(1) of the Convention. Criminal prosecutions seem not only to precede the refugee determination but also to exclude any reference to the refugee context, other than as mitigation.
There are also a number of difficulties concerning section 31 itself. The defence only applies to a limited number of offences unlike article 31(1) of the Convention which covers any offence relating to entry or presence. For example, the offences of failing to produce a passport under section 2 and failing to assist in one’s own removal under section 35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, although caught by article 31(1) are not listed in the UK defence.
The section also appears to require a person to show, in a criminal court, that she is a refugee if she has had a negative asylum determination (section 31(7)) whereas article 31(1) applies to ‘presumptive refugees’, that is asylum seekers or those who need humanitarian protection, as well as those who have been recognised to be refugees. Confusingly, section 31(6) states that ‘refugee’ has the same meaning as the Refugee Convention, which for article 31(1) purposes includes asylum seekers…
Another section provides that a refugee falls outside the defence if she has committed a relevant offence after making a claim for asylum (section 31(5)) even though this situation also falls within article 31(1). Imagine that a person has made a claim for asylum and been rejected. An appeal is dismissed. In desperation, she gets hold of a false passport and uses it to try to escape to a place of greater safety so fearful is she of being returned to her country of origin. She is stopped at the airport, arrested, pleads guilty to a false passport offence, and is imprisoned. On release, she is helped to make a new asylum claim. Eventually, she is recognised to be a refugee. She is recognised to be the refugee that she was when she arrived in the UK and first made a claim for asylum. Had the authorities recognised her to be what she in fact was when she arrived, she would not have committed the offence. In a case such as this, a refugee would have a potential argument based on abuse of process that her conviction was unsafe notwithstanding the wording of section 31(5).
There was no safety net for the Syrian man who was prosecuted just over a year ago for arriving at Gatwick airport with a false passport. Like the vast majority of these cases, he pleaded guilty and was sentenced to 12 months’ imprisonment. While he was in prison, the Home Office recognised him as a refugee. Fifteen years after assurances made in Parliament and 16-18 years since these cases were first highlighted, these wrongful prosecutions persist.
How to cite this blog post (Harvard style): Holiday Y (2014) A Place of Greater Safety: The Prosecution of Refugees for Passport Offences. Available at: http://bordercriminologies.law.ox.ac.uk/a-place-of-greater-safety (accessed [date]).