Guest post by Yewa Holiday. Yewa teaches criminal law and land law at Queen Mary University of London. Her PhD thesis explored the compatibility of the criminalisation of refugees in England and Wales with article 31(1) of the 1951 Refugee Convention. You can follow her on twitter @yyadiloh. This is the final instalment of Border Criminologies’ themed posts on wrongful convictions of asylum seekers organized by Ana Aliverti.

This post looks at article 31(1) of the Refugee Convention and the prosecution of refugees in England and Wales via the case of Mr Nori in R v YY and Nori [2016] EWCA Crim 18. Mr Nori’s case, which was referred to the Court of Appeal by the CCRC, illustrates how the criminal justice system and the Home Office have failed refugees (this post does not consider the separate case of YY). The analysis draws on my research on article 31(1) and the criminalisation of refugees in England and Wales.

Article 31(1) prohibits the penalisation of refugees (including asylum seekers) for offences of unlawful entry and presence provided that certain criteria are met. It recognises that asylum seekers and refugees find it difficult to flee due to the requirements for passports and visas. They may not be able to obtain passports or they may have to leave suddenly. Those with genuine documents may be required to hand these over to ‘agents’ who demand them as part of the price of arranging the escape (eg, in the case of Asmeron).

The UK criminal justice system deals with article 31(1) by providing two defences which refugees can use when faced with prosecution; first, the refugee defence which is based on article 31(1) (used mainly for false passport type offences), and second the reasonable excuse defence (used mainly for failing to produce a passport). While, the intention behind the former is to ensure that refugees are not penalised for offences of unlawful entry and presence, the latter aims to deter people from hiding their identity by disposing of identity documents or from claiming asylum when they had been recognised as refugees elsewhere.

The CCRC's response to cases where these defences should have been available to defendants is to frame them as miscarriages of justice because of inadequate legal advice. However, the problem with the criminalisation of refugees is of a more fundamental nature. This has begun to be recognised, for example by Colin Yeo who has asked whether the CPS are more responsible than ‘allegedly incompetent defence lawyers’ and by Aliverti and Hoyle and Sato, in this series. However, refugees who have committed offences of unlawful entry and presence ought not to be prosecuted at all. The reason they should not be prosecuted is due to the 'fundamental principle' of non-penalisation in article 31(1). If article 31(1) is to operate to protect refugees, the asylum claim must take precedence over any criminal prosecution. If refugee status or other protected status is granted, that should be an end of the matter. If the person cannot show that she or he merits international protection, only then should the CPS consider whether or not it would be in the public interest to prosecute.

The Nori case concerned an Iraqi asylum seeker who was prosecuted for failing to produce a passport. At a screening asylum interview on arrival he stated that he had handed his genuine passport to an agent in Ankara, Turkey and he did not know whether he had travelled on his genuine or false passport to the UK because the document had been held by the agent. A pre-sentence report stated that Mr Nori had said that his genuine passport had been used to reach the UK (this was disputed by Mr Nori who stated that there must have been an issue of miscommunication). The author of the report continued,

He could not explain why, if that was the case, he did not use it and purchase his own air tickets, once in Syria, as opposed to paying another extortionate amount. During his interview, I was not totally convinced by [his] explanation with regards to events surrounding his arrival in the UK. I am of the view that [he] was fully aware of the consequences of entering the UK without a passport.

The author’s  failure to understand why Mr Nori did not buy his own tickets and arrange his own travel was accepted by the Court of Appeal. Although the Court said that a jury might have accepted Mr Nori’s account rather than the report’s account, the Court then went on to accept it because there was no evidence which ‘satisfactorily addressed’ why Mr Nori had not used the family passports to purchase their own tickets ‘or why he was prepared to pay a very substantial amount of money to an agent’. This shows the criminal justice system’s lack of knowledge and understanding about the 'peculiar situation' of asylum seekers when fleeing persecution.

Mr Nori clearly did not travel to the UK on his own passport. He was an Iraqi national and therefore would have required a visa. In 2007, when Mr Nori entered the country, the UK refused 40-45% of visa applications from Iraqi nationals. Iraq had a far higher rate of visa refusals than any other country in the Middle East, including Iran and the Yemen. Since he was an asylum seeker, he would have found it virtually impossible to obtain a visa since a visa national has to show that she or he will return to the country of origin. This an asylum seeker is evidently unable to do.

A further difficulty with the offence with which Mr Nori was charged (failing to produce a passport on entry) is that if identity and nationality may be determined by other documents in the possession of the asylum seeker such as identity cards, driving licences or even copies of the genuine passport, or if the asylum seeker can establish his or her country of origin, this does not undermine the aim of the legislation. None of the reported cases or those considered in my research at the CCRC involve asylum seekers trying to disguise their identities. However, in virtually all cases, refugees were convicted, usually on a guilty plea.

Mr Nori was prosecuted in 2007 despite the fact that he was a person entitled to humanitarian protection. Neither the CPS nor the Home Office ensured that Mr Nori’s asylum claim was determined before prosecution was considered. The CPS and Home Office have issued guidance on article 31(1). Although guidance is not law, it is relied on by criminal lawyers who may not be used to interpreting or applying international refugee law or the patchwork of domestic protection enacted to give effect to article 31(1). The guidance produced by these bodies, however, fails to recognise fully the principle of non-penalisation in article 31(1), does not treat the refugee defence and the reasonable excuse together in the context of article 31(1) and has a prosecutorial rather than a protective focus.

Prosecuting asylum seekers before the asylum claim is at variance with what the Court in Adimi wanted to happen and what Parliament intended. The priority of the asylum claim is recognised in the Scottish prosecution guidance which states that there is a balance to be struck ‘between consideration of offences which in ordinary circumstances would be considered serious …. and respecting the rights of refugees and the underlying principles of the Convention’. Scotland’s Crown Office Procurator Fiscal Service therefore requires all such cases to be dealt with by Crown Counsel, senior prosecutors within COPFS. The effect of such guidance is that Scottish prosecutors take seriously the principle of non-penalisation.

The CCRC might be thought to function as a form of protection for refugees as it is a body which is established to 'bring justice to the wrongly convicted'. However, the protective functions of the refugee defences and the CCRC do not – and cannot - succeed in preventing prosecutions from occurring or give effect to the principle of non-penalisation in article 31(1). The function of the defences and the CCRC is akin to a sticking plaster function. The refugee defences are not a bar to prosecution and since they seem to be rarely used, they are not able to protect refugees. The CCRC cannot prevent the prosecution of asylum seekers but ameliorates their situation by correcting a miscarriage of justice. This may be many years after the initial prosecution. The injustice in these cases lies in the fact that they should never have been prosecuted at all.

Note: Yewa’s thesis will be published as a monograph by Brill in 2017.

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How to cite this blog post (Harvard style)

Holiday, Y. (2017) The Problem with the Prosecution of Refugees. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/problem (Accessed [date]).