R v Asfaw (United Nations High Commissioner for Refugees intervening)
| Jurisdiction | UK Non-devolved |
| Judge | LORD MANCE,LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD HOPE OF CRAIGHEAD,LORD BINGHAM OF CORNHILL |
| Judgment Date | 21 May 2008 |
| Neutral Citation | [2008] UKHL 31 |
| Court | House of Lords |
| Date | 21 May 2008 |
[2008] UKHL 31
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Carswell
Lord Mance
HOUSE OF LORDS
Appellants:
Edward Fitzgerald QC
Raza Husain
Richard Thomas
(Instructed by Moss & Co)
Respondents:
Clare Montgomery QC
Julian Knowles
(Instructed by Crown Prosecution Service)
Intervener (UNHCR)
Michael Fordham QC
Shaheed Fatima
(Instructed by Baker & McKenzie LLP)
My Lords,
The Criminal Division of the Court of Appeal (Lord Phillips of Worth Matravers CJ, McCombe and Gross JJ: [2006] EWCA Crim 707) certified the following point of law of general public importance as involved in its decision now under appeal:
"If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 United Nations Convention Relating to the Status of Refugees?"
Differently expressed, the question is whether, to the extent that the protection given to a defendant by section 31(3) of the 1999 Act does not match that which the United Kingdom is bound in international law to give by article 31 of the Refugee Convention, our domestic law gives a defendant any remedy. The formulation of the question clearly assumes that the offence charged against the defendant is not within the scope of section 31(3) of the 1999 Act but is within the scope of article 31 of the Convention.
According to her evidence, the appellant is an Ethiopian national who had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father also was persecuted and died in police custody. She decided to leave Ethiopia and travel to the United States to claim asylum. With the help of an agent she left Ethiopia by air, travelling on a false Ethiopian passport. They stopped in an unknown Middle Eastern country and remained in the airport for about three hours. They arrived in the UK on 14 February 2005 at Heathrow Airport and passed through immigration control, with the agent presenting the passport on her behalf. The agent then left her in the airport for about an hour, after which he returned and gave her a false Italian passport, in the name of Hanams Gebrele, a false driving licence in the same name and a ticket to Washington DC. He then left.
It is agreed that on 14 February 2005 the appellant (then aged 28) checked in for a Virgin Atlantic flight from Heathrow to Washington. She presented the false Italian passport. She said she was Ethiopian. The official on the desk (Mohammed Hussan) recognised the passport as false and informed the police, but said nothing to the appellant and allowed her to check in. When she attempted to board the aircraft at the departure gate she was stopped. Her passport was examined and found to be false. She was arrested and taken to the police station. There she was questioned but gave no answers. Through an interpreter she told her legal representative at the police station that she wished to claim asylum and he gave evidence that he communicated this claim to the police at 5.00 pm on the day of her arrival. On 11 April 2007 the appellant was formally recognised by the Home Secretary as a refugee.
The appellant was charged with two offences on which she was later indicted and stood trial at Isleworth Crown Court before His Honour Judge Lowen and a jury. Count 1 charged her with using a false instrument with intent contrary to section 3 of the Forgery and Counterfeiting Act 1981, the particulars being that on 14 February 2005 she used an Italian passport which she knew to be false, with the intention of inducing another (identified as Mohammed Hussan, the official on the check-in desk) to accept it as genuine. In count 2 the appellant was charged with attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. The particulars were that she had dishonestly attempted to obtain air transport services from Virgin Atlantic by falsely representing that she was authorised to use the Italian passport in the name of Hana (sic) Gebrele. Both these counts related to the appellant's attempt to leave this country on a Virgin Atlantic flight to Washington, and both, it seems, were based on presentation of the false Italian passport at the check-in desk.
The appellant pleaded not guilty to count 1 and relied on the defence provided by section 31 of the Act. Directing the jury, His Honour Judge Lowen, said:
"There is available a defence to such a charge [as count 1] which the law has provided for persons who genuinely seek asylum. Because the law recognises that refugees may inevitably have to commit such offences as a means of seeking safe refuge. It would, you may think, be quite unjust for genuine refugees to be faced with the prospect of inevitable conviction of crime in relation to the process by which they seek to enter a safe haven. And that is why the law recognises that common sense proposition and that is why the law provides that if a person, on the balance of probability, fulfils the criteria provided for in law, then the law says they have a complete defence to a charge of this kind."
In the light of the evidence at trial, prosecuting counsel accepted that the appellant was a refugee, but disputed that the other requirements of section 31 were met. The jury, however, acquitted, and must therefore have found that they were.
Before the trial began, counsel for the appellant (Mr Richard Thomas) resisted further prosecution of count 2 on the ground that the offence charged, although not within section 31 of the Act, was within article 31 of the Convention. The judge rejected the submission. He ruled:
"The prosecution have decided to proceed in this case and take the view that those offences, catered for in section 31, are all offences which a refugee may commit involving the process of entering a safe haven. Once within the United Kingdom a person who then goes on to commit a further offence should not have a defence available to protect him or her from prosecution and conviction. That is the justification for the prosecution proceeding in this case. The logical distinction is clear."
He went on to refer to
"the real distinction between offences which are necessary and reasonable in the quest for asylum on the one hand and those which arise as a matter of choice or convenience and it is into the latter category that the prosecution put this offence of obtaining or attempting to obtain services by deception."
In response to this ruling the appellant pleaded guilty. After her acquittal on count 1, the judge sentenced the appellant to nine months' imprisonment (most of which she had already served) on count 2. He said that offences of this kind undermined the whole system of immigration control and were so prevalent as to call for deterrent sentences. It is not clear what factual (as opposed to legal) difference the judge saw between the two counts.
The appellant appealed against conviction and sentence on count 2. In the Court of Appeal prosecuting counsel did not question the correctness of the appellant's acquittal on count 1, and implicitly accepted its correctness. He accepted that on the facts of this case article 31 required that the appellant should have a defence, even if charged with attempting to obtain the service of the airline by deception (see [2006] EWCA Crim 707, para 21). He accepted that both article 31 and section 31 could apply to an asylum seeker seeking to use this country as a transit post in a journey to a preferred place of refuge (para 21). He accepted that the appellant's attempt to fly to Washington in order to seek asylum should attract no punishment if the UK were fully to comply with article 31 (para 26). He accepted that he could not support the reasoning which led the judge to impose the custodial sentence he did (para 27). Thus the issue in the Court of Appeal was a narrow one. Counsel for the appellant submitted that it was improper for a different charge, not falling within section 31, to be brought in respect of precisely the same facts (para 20). The Crown's reply was that section 31 listed the offences to which the statutory defence should apply, that the list did not include attempted deception, and the duty of the Crown Prosecution Service was to apply the law (para 21). The court expressed its concern about some aspects of the case. It considered that if the second count had been added in the interests of immigration control, in order to prevent the asylum seeker from invoking the defence that section 31 would otherwise provide, there would be strong grounds for contending that the practice would be an abuse of process (para 24). The court dismissed the appellant's appeal against conviction, but allowed her appeal against sentence, quashed the sentence of imprisonment and ordered that the appellant should be absolutely discharged. The certified question set out in para 1 above relates, of course, to the legal issue which then fell for decision. In the House, however, the respondent contended, for the first time, that the offences allegedly committed by the appellant fell outside both article 31 of the Convention and section 31 of the Act because they were committed in the course of trying to leave the country and not in the course of entering it or as a result of the appellant's illegal presence here. Thus the central issue now is whether these offences, or either of them, fell within the scope, first, of article 31 and, secondly, of section 31.
Article 31
During the 1920s and 1930s the League of Nations sought to address the...
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