Guest post by Yewa Holiday, PhD Candidate at Queen Mary, University of London. She teaches criminal law. Follow Yewa on Twitter @yyadiloh. This post is the fifth installment of the Border Criminologies Themed Week on Migration, Criminal Law and Criminal Justice organised by Ana Aliverti.

My research is on the prosecution of refugees for offences of unlawful entry and stay in England and Wales without any―or insufficient―regard to article 31(1) of the 1951 Refugee Convention. Article 31(1) prohibits the penalisation of refugees, subject to certain conditions, who’ve committed offences such as the possession of a false passport to enter a country as a consequence of their flight from persecution. The UK offences used against refugees include immigration offences (for example, section 2 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (AI(TC)A 2004) which criminalises failing to produce a passport) and criminal offences (for instance, section 6 of the Identity Documents Act 2010 (IDA 2010) which criminalises the possession of identity documents which are false or belong to another person).

There’s literature on the substantive criminalisation of migrants in an EU context (see Valsamis Mitsilegas) and the failure of the role of the criminal law in relation to immigration offences (see Lucia Zedner and Juliet Stumpf). However, this literature doesn’t consider the role of the criminal law in relation to criminal law offences or immigration offences directed at refugees. The offences with which refugees are convicted don’t seem to conform to basic principles of criminalisation of the criminal law. This blog post considers the harm principle and the wrongfulness criterion by looking at a recent case under the UK’s Vagrancy Act 1824 (VA 1824) and at the nature of possession offences. I suggest that refugees are prosecuted for who they are rather than the acts they commit.

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It was reported last year that three men were charged under section 4 of the VA 1824 for absconding with food from the dustbins behind a branch of Iceland Foods. The Crown Prosecution Service (CPS) maintained that there was ‘significant public interest’ in such a prosecution. However, it reversed the decision to prosecute after a public outcry, including concerns from Iceland’s chief executive. The CPS took into account the seriousness of the offence and the level of harm in reaching this decision although the initial decision and, in particular, the workings of the CPS’ public interest test have been criticised (see, for example, David Allan Green’s dissection of the case). The case has been described by Joe Hermer as ‘a crime of character rather than conduct.’ The three men were charged under an Act which is directed at rogues and vagabonds. The problem with an offence such as section 4 of the VA 1824 is that the individual is criminalised not as a result of his or her conduct but rather because of the kind of person s/he is, or because of the situation in which s/he finds her or himself.

The Iceland Food case raises issues which are also relevant to the offences of unlawful entry and stay used in relation to refugees. What is the harm which refugees cause when they enter a country with a false passport? What is the wrongful act committed? Markus Dubber has argued, in relation to the possession of drug offences, that the US policing regime focuses on the threat, rather than the occurrence, of harm. This is both communitarian, because it seeks to eliminate threats not to persons, but to communities, and authoritarian, because the victim is the state itself. Dubber’s analysis has relevance when applied to the prosecution of refugees. The offences relating to unlawful entry and presence, at least when committed in connection with a flight from persecution (as opposed to, for example, in connection with organised crime or terrorism), aren’t ones that harm individuals. They are, however, perceived by magistrates and crown court judges as being offences which threaten. The possession or non-possession of false passports are victimless crimes. The community, which is protected in relation to unlawful entry and stay offences, must be the community constituted by those within the border. This doesn’t necessarily mean citizens (as is sometimes assumed) as all within the border are subject to the criminal law whether citizens or not. However, there’s an implication that the community constitutes not only those who are within the border but also that those within the border are lawfully within the border. This is supported by sentencing remarks in the magistrates’ and crown courts because the threats which these courts are focused on are threats to the integrity of UK borders and the state’s passport system.

Offences directed at organised crime and terrorism have caught refugee possessors of false identity documents who are fleeing persecution. This criminalisation even extends to the non-possessors of identity documents under section 2 of the AI(TC)A 2004. Ana Aliverti has found that it’s rarely those who take advantage of the ‘illegality’ of immigrants who are prosecuted. Moreover, it’s difficult to identify the wrongful conduct committed by refugees. Situational offences, such as the possession of a false passport, reflect a state of affairs which is sufficient to make the refugee liable. These types of offences don’t refer to the way in which the person has reached his or her situation. When a refugee is found to be in possession of a false passport or to have no identity document to produce on arrival, how the refugee got to be in that situation is usually deemed to be unimportant. Dubber has observed that nearly all defendants charged with possession offences plead guilty. This is true also of refugees prosecuted with possession offences in the UK.

Unlike vagrancy offences, possession offences make no reference to the type of person, such as ‘vagabond’ or ‘rogue’ status. Dubber has argued that this makes these laws extremely flexible and more successful than vagrancy offences in controlling the undesirable. Like the use of section 4 of the VA 1824, the use of possession―and non-possession―offences against refugees fleeing persecution raises significant questions about whether they conform to principles of criminalisation and the rule of law, and thereby whether refugees are being prosecuted for these offences because of who they are rather than for what they’ve done.

Themed Week on Migration, Criminal Law and Criminal Justice:

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How to cite this blog post (Harvard style):

Holiday, Y. (2015) The Function of the Criminal Law in the Prosecution of Refugees. Available at: http://bordercriminologies.law.ox.ac.uk/prosecution-of-refugees/ (Accessed [date]).