R v Uxbridge Magistrates' Court and Another, ex parte Adimi ; R v Crown Prosecution Service, ex parte Sorani ; R v Secretary of State for the Home Department, ex parte Sorani ; R v Secretary of State for the Home Department and Another, ex parte Kaziu
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,Mr Justice Newman |
| Judgment Date | 29 July 1999 |
| Neutral Citation | [1999] EWHC J0729-6 |
| Judgment citation (vLex) | [1999] EWHC J0729-24 |
| Docket Number | CO/2533/98, CO/3007/98, |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 July 1999 |
[1999] EWHC J0729-24
IN THE SUPREME COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
(DIVISIONAL COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon Brown
and
Mr Justice Newman
CO/2533/98, CO/3007/98,
CO/2472/98 & CO/1167/99
MS F WEBBER (instructed by Chistian Fisher, London WC1A 1LY) appeared on behalf of for Mr Adimi.
MR R HUSAIN (instructed by BM Birnberg & Co, London SE1 1NN) for Mr Kaziu
MISS S HARRISON (instructed by Stewart Miller, London N22 7DN) for Mr Sorani
MR S KOVATS & MR S GRODZINSKI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Secretary of State.
MR D PERRY (instructed by Crown Prosecution Service, Brent/Harrow/Uxbridge Branch, Middlesex HA1 1YH) appeared on behalf of the Director of Public Prosecutions and the Crown Prosecution Service.
Thursday, 29th July 1999
The problems facing refugees in their quest for asylum need little emphasis. Prominent amongst them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterised by subterfuge and false papers. As was stated in a 1950 Memorandum from the UN Secretary-General:
"A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge."
Thus it was that Article 31(1) found its way into the 1951 UN Convention relating to the Status of Refugees (the Convention):
"31(1) The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."
The need for Article 31 has not diminished. Quite the contrary. Although under the Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier's liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents. Just when, in these circumstances, will Article 31 protect them? The precise ambit of the impunity lies at the heart of these challenges.
Each of these three applicants has fled from persecution in his home country. Each has been prosecuted for travelling to, or attempting to travel from, the UK on false papers. Each now claims to have been wrongly denied the protection conferred by Article 31.
The following brief summary of the individual cases must suffice.
Mr Adimi is an Algerian aged 31who on 1 October 1997 fled Algeria in fear of persecution by the GIA (an Islamic terrorist group). On 27 November 1997 he arrived at Heathrow by air from France (having, he says, reached France from Italy on 16 November) with a false Italian passport and identity card. The immigration officer was not deceived by these documents and Mr Adimi was refused leave to enter. He then claimed asylum (whether that night or the following morning is in dispute) but, that notwithstanding, he was arrested and charged. Initially he was charged under s.5(1) of the Forgery and Counterfeiting Act 1981 (possession of false documents with intent, maximum sentence 10 years) but later those charges were replaced by charges under s.5(2) of the Act (simple possession, maximum sentence 2 years). Unusually, as it appears, perhaps even uniquely, those representing Mr Adimi recognised the possibility of invoking Article 31 and on 24th January 1998 his case was adjourned for legal argument. On 15th April 1998, however, the Stipendiary Magistrate at Uxbridge refused his application for a stay and this challenge followed. Shortly afterwards the Secretary of State recognised Mr Adimi as a refugee and granted him indefinite leave to enter. The CPS nonetheless propose to continue the prosecution against him.
Mr Sorani is an Iraqi Kurd from the Kurdish "safe haven" in Northern Iraq. He is a 27 year old accountant and claims to have been detained and tortured by the Iraqi authorities because of his political opinions. Support for his account is to be found in a report from the Medical Foundation for the Care of Victims of Torture. He says that he fled Iraq for Turkey on 15 June 1997 and, it being unsafe for him to remain there, arranged to travel to Canada where he has family. His case is that on 16 August 1997 he flew from Istanbul to Heathrow on a false Greek passport and, whilst in transit here, was provided by an agent with a false Dutch passport and an airline ticket. This ticket was purchased in the UK on 14 August and, in large part because of this, the respondents reject the applicant's account and believe that he had spent some time in the United Kingdom rather than flown in on 16 August. At all events, whilst checking in that day for the onward flight to Canada, he was stopped by airline officials and, his documents being found to be false, he was arrested and charged. On 18 August he pleaded guilty at the Uxbridge Magistrates Court to two offences: possession of the false Dutch passport with intent to use it as genuine, contrary to s.5(1) of the 1981 Act, and attempting to obtain air transport services by deception, contrary to s.1(1) of the Criminal Attempts Act 1981. He was sentenced to two concurrent terms of three months imprisonment. He claims that as soon as he realised that he would be unable to travel on to Canada he made it plain to an immigration officer that he was an asylum seeker but that the officer refused to entertain his claim. The Secretary of State does not accept this but acknowledges that in any event "it is likely the police would still have charged him with a passport offence." Following his release from Wormwood Scrubs on 30 September 1997, the applicant through solicitors made a formal application for asylum. Despite having been interviewed on 22 October 1997, his claim remains undetermined.
Mr Kaziu is a 27 year old Albanian who, until President Berisha's Democratic Party's fall from power in 1997, was the President's second bodyguard. He says that in September 1998 he discovered that he was wanted by the police for organising a military uprising against the new regime. On 18 December 1998 he and his wife (aged 20) fled to Greece on false Greek passports and then, three days later, came to England. They were intending to travel on to Canada to claim asylum there. On 21 December they successfully gained entry at Gatwick but, the next day, whilst attempting to board an aircraft at Heathrow for the onward flight to Canada, were discovered to be holding false documents and were promptly arrested and charged. On 23 December 1998 each pleaded guilty at Uxbridge Magistrates Court to the same two charges as Mr Sorani had faced. In their case, however, the sentences imposed were ones of six months imprisonment. Mr Kaziu accepts that he made no claim for asylum until 15 February 1999. He asserts, however, that the authorities had sufficient information to recognise his eligibility for refugee status, and points out that in any event an immigration officer, Mr Murphy, to whom he spoke on the night of his arrest, has deposed to "saying to him that he should go to the Home Office after the police and courts had dealt with him. As a Kosovan I assumed he would claim asylum." He was not, of course, a Kosovan but that apparently had been the officer's understanding. At all events, on 9 April 1999, about a fortnight after their release from prison, Mr and Mrs Kaziu submitted through solicitors a "self-completion questionnaire" in connection with their asylum claim. It remains undetermined.
As I understand the essential challenges before the court, they are these:
1. A challenge by Mr Adimi to the CPS's decision to continue the prosecution against him (a) once it became clear that the Secretary of State had accepted responsibility for determining his asylum claim, and a fortiori (b) now that asylum has been granted.
2. A challenge by Mr Adimi to the Magistrates' refusal to grant a temporary stay of the prosecution pending the Secretary of State's determination of his asylum claim.
3. A challenge by Mr Sorani to what he contends was the immigration officer's refusal to allow him to claim asylum until after the prosecution had taken its course.
4. Challenges by Mr Sorani and Mr Kaziu to the CPS's decisions to prosecute them.
5. Challenges by Mr Sorani and Mr Kaziu (a) to the Secretary of State's adoption of a policy whereunder refugees are prosecuted in false document cases irrespective of whether they have claimed asylum, alternatively (b) the Secretary of State's failure to adopt a policy preventing such prosecutions at any rate until refugee status has been determined.
6. I understand the applicants to seek in addition various forms of declaratory relief.
At this stage, however, rather than address these specific issues, it seems to me altogether more profitable to stand back from the detail of the individual cases and to look instead at the position in the round. It must be appreciated that these three cases—grouped...
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