Post by Ana Aliverti, Associate Professor, School of Law, University of Warwick. Ana is an Associate Director of Border Criminologies. She is on Twitter @a_aliverti. This is the first instalment of Border Criminologies’ themed posts on wrongful convictions of asylum seekers organized by Ana.

Border Criminologies have published a number of posts analyzing a disturbing legal trend whereupon asylum seekers arriving in the UK or in transit are prosecuted under a range of immigration-related crimes despite being guaranteed immunity by Article 31 of the 1951 Refugee Convention. This article prohibits the penalization of refugees on account of their illegal entry or presence in the contracting state provided certain conditions are met.  In this series of posts, we revisit the issue by looking closely at the work of the Criminal Cases Review Commission in raising awareness on the underlying legal problem. In this post, I provide a brief contextual background to the series, review one of the latest decisions by the Court of Appeal on wrongful immigration-related convictions and reflect on the importance of the Crown Prosecution Service (CPS) as a bulwark against miscarriages of justice in these cases.  

Context

In 1998, an officer at Amnesty International-UK reported a sharp increase in arrests for document-related offences at Heathrow airport: from 53 (1994) to 126 (1995) to 376 (1996). This trend was first uncovered by the judiciary in the ground-breaking case of Adimi. In that case, Lord Justice Brown noted the lack of knowledge of Article 31 by criminal justice operators: ‘So far as the police and CPS are concerned, no consideration had ever been given to the immunity provided by art 31’ (at p.526).

In response to the Divisional Court’s ‘Adimi’ decision, in 1999, the law was reformed to incorporate the terms of Article 31 in domestic legislation –in section 31 of the Immigration and Asylum Appeals Act 1999. Despite this change, since 2005, the Criminal Cases Review Commission (CCRC) had a growing number of cases in its dockets involving refugees convicted of document offences who had a defence under section 31 available. By the end of 2015, it received around 90 cases –of which more than 30 were referred to the Court of Appeal (all but one of them had been quashed). In the CCRC 2012/2012 annual report, it diagnosed that the number of such cases referred to it revealed a ‘significant and potentially widespread misunderstanding or abuse of the law’.

These cases may be considered the tip of the iceberg though. The vast majority of defendants are not aware of the existence of this route to challenge a conviction and they might not have the right legal advice available to pursue this route. Sharon Persaud, a CCRC Commissioner, estimated that around 50 cases of wrongful convictions of refugees had occurred during a 10-year period in the Heathrow courts alone –Uxbridge Magistrates’ Court and Isleworth Crown Court.

Following the CCRC referrals, the Court of Appeal established parameters in the operation of the defence in section 31. In Mateta and Others, it clarified burden of proof rules, and reiterated that refugees have some choice where to seek protection and that a short stopover en-route to the chosen destination does not necessarily preclude protection. It also established a duty upon legal representatives to advise their clients on the existence of a possible section 31 defence and explain to them its parameters.

As a response to the judgement in Mateta, new guidance to CPS prosecutors and immigration officers were issued incorporating the legal parameters established there. These guidelines (here and here) acknowledged their crucial role as gatekeepers for preventing wrongful convictions and miscarriages of justice. Given that the CPS relies on the initial assessment by the immigration service, immigration case-workers should ensure that this is done according to the law. Referrals to the CPS should normally be done once the asylum screening is completed: ‘If you believe a section 31 defence does or might apply you must put the criminal investigation on hold and wait for the outcome of the asylum claim.’ Even if the asylum case is pending, the decision to refer the case should be based on whether the requirements in section 31 are met.

Similarly, the CPS guidelines advise prosecutors that ‘it would normally be appropriate to await the outcome of the asylum proceedings before making a decision on charge’ if the suspect complies with all the conditions in section 31. Even if the suspect does not satisfy all the elements of the defence, and provided the evidential test is passed, prosecutors may not pursue a prosecution. In certain circumstances, for example because of the suspect’s age or physical or mental situation, the Crown might consider that the prosecution of the case is not in the public interest.      

R v Arash Zaredar

In May 2016, the Court of Appeal was once again asked to rule on an appeal against the conviction of a person who had a potential refugee defence. The facts of the case, as relayed in the judgement, are as follow: Mr Zaredar, an Iranian citizen, was convicted of possessing a false document by the Liverpool Crown Court in June 2012 and sentenced to 12-month imprisonment. He was found in the ferry terminal with a false French passport. He was initially interviewed by immigration officers through a Farsi interpreter. His lawyer was not present then. Neither did he raise any defence based on section 31. Even though the lawyer had information to raise that defence and contest the charge, he advised his client to plead guilty to the charge.

Mr Zaredar left Iran after being persecuted and detained for his political activities. He flew to Thailand where he met an agent who provided false documents to travel to Italy. He was bound for Australia but was detained en route and sent back to Italy where he then boarded a flight to Dublin and made his way into England, through Liverpool. He successfully claimed asylum and was granted refugee status in November 2013 -17 months after his criminal conviction. The CCRC referred this case to the Court of Appeal for consideration.

In contrast to other cases, in Zaredar, the CPS conceded that the applicant was not afforded an adequate legal representation and did not argued that the conviction was safe. The Court of Appeal declared Mr Zaredar’s conviction unsafe and quashed it. In conveying his unease, Lord Justice Gross suggested that the judgement should be part of lawyers’ professional training, adding:

With respect, there really is no excuse for continuing professional failures in the regard. The statutory defence should be raised and, if need be, disputed as soon as possible. It should not need to be left to appeals out of time or the Criminal Cases Review Commission to remedy matters after the event.

This case is remarkable because of the position adopted by the prosecutor in not contending that the conviction of the appellant was safe. It may signal a broader change within the CPS in relation to immigration prosecutions involving refugees and trafficking victims. In its most recent report, the CCRC noticed a steady decline in its immigration case docket which may herald an end to this disturbing trend.

Conclusion

While the law in this area remains complex and obscure, a copious body of jurisprudence has developed to clarify its scope. This jurisprudence is important to ensure that at least some refugees are immune from criminalization and punishment, and sets limits to the use of criminal law for immigration enforcement.

By itself, it is not enough. It should trickle down to the very first stages of the criminal process.

Photo: AFP Photo/Justin Tallis
The treatment of cases involving asylum seekers accused of illegal entry by the criminal justice system may be characterized as assembly-line ‘justice’, where cases are processed at high speed, evidence is superficially looked at, and legal issues overlooked. Arguably, these are not exclusive to immigration related cases but they reflect general features of the lower courts. In the context of austerity, cuts to legal aid, increase pressure to settle cases through early guilty pleas and the introduction of other summary justice initiatives will put more pressure on courts to handle cases quickly and increase the likelihood of mistakes. Against this backdrop, it is crucial to develop robust filters to prevent that cases progress through the criminal justice system. The ball is on the CPS. 

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How to cite this blog post (Harvard style)

Aliverti, A. (2017) Prosecuting Refugees: Wrongful Convictions, Unlawful Practices. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/prosecuting (Accessed [date]).