R (Pepushi) v DPP
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 2004 |
| Neutral Citation | [2004] EWHC 798 (Admin) |
| Date | 11 May 2004 |
| Court | Queen's Bench Division (Administrative Court) |
QUEEN'S BENCH DIVISIONAL COURT
Before Lord Justice Thomas and Mr Justice Silber
Immigration - statutory protection available to refugee narrower than under treaty - statute takes precedence
Where the protection available to a refugee in an English statute purporting to give effect to an international treaty was narrower than that afforded by the treaty, the statute took precedence.
The Queen's Bench Divisional Court so held in a reserved judgment, dismissing an application for judicial review by Gjovalin Pepushi of the decision of the Crown Prosecution Service on January 7, 2004 to prosecute him for using a false instrument contrary to sections 3 and 6 of the Forgery and Counterfeiting Act 1981.
Mr Andrew Nicol, QC and Mr John Walsh for Mr Pepushi; Mr David Perry and Mr Simon Ray for the Crown Prosecution Service.
LORD JUSTICE THOMAS, giving the judgment of the court, said that the claimant was stopped by immigration officers at Heathrow airport for attempting to board a flight to Canada using a false Swedish passport. Prior to the arrival in the UK he had stopped in Italy and France.
It was his intention to claim asylum in Canada, and had not claimed asylum in France or Italy because he had been told that Canada was better and that European immigration laws were getting tougher.
Under article 31 of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd) 3906), ratified by the UK on March 11, 1954, contracting states were obliged not to impose penalties on refugees who entered without authorisation when coming directly from a territory where their lives were threatened. The UK enacted article 31 by section 31 of the Immigration and Asylum Act 1999.
The questions for the court were whether the enactment of section 31 of the 1999 Act left any scope for the reliance on article 31 of the Convention in the manner decided by the Divisional Court in R v Uxbridge Magistrates Court, Ex parte AdimiELR ( (2001) QB 667) and whether the Divisional Court was the proper forum in which to raise the issue in criminal proceedings brought against the claimant. The court followed Adimi on the interpretation of article 31.
As to the position after the enactment of section 31 of the 1999 Act it was clear that the section did not cover the entire scope of the application of article 31; the scope of section 31(2) was narrower than...
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...of Alberta (1995) 128 DLR (4th) 440 at 449), 'very rare indeed' R (on the application of Pepuski) v Crown Prosecution Service [2004] EWHC 798 (Admin), [2004] Imm AR 549 at para [49], and 'very rarely' ( R (on the application of Bermingham) v Director of Serious Fraud Office [2006] EWHC 200......
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[1] Henry Liu [2] Feng Huang Appellants v [1] Attorney General of the Commonwealth of Dominica [2] DPP [3] Comptroller of Customs Respondents [ECSC]
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