R v Uxbridge Magistrates' Court, ex parte Adimi
| Jurisdiction | England & Wales |
| Judge | Simon Brown LJ,Newman J |
| Neutral Citation | [1999] EWHC (Admin) 765 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 1999 |
([1999] EWHC Admin 765)
England, High Court, Queen's Bench Division.
(Simon Brown LJ and Newman J)
Treaties — Interpretation — Convention relating to the Status of Refugees, 1951 — Purpose of Refugee Convention — Article 31(1) — Scope of protection — Applicants in possession of false documents when entering United Kingdom — Applicants seeking asylum — Whether applicants immune from prosecution for possession of false documents — Whether coming directly from country of persecution — Whether presenting to authorities without delay — Whether showing good cause for illegal entry or presence — Whether applicants entitled to protection of Article 31(1)
Relationship of international law and municipal law — Treaties — Convention relating to the Status of Refugees, 1951 — United Kingdom signing and ratifying Refugee Convention — Purpose of Refugee Convention — Article 31(1) — Whether Refugee Convention incorporated into English law — United Kingdom's obligations under Article 31 of Refugee Convention — Whether applicants entitled to benefit from Article 31 — Doctrine of legitimate expectations — British law and practice in connection with Refugee Convention — How protection of Article 31 best achieved
Aliens — Refugees — Convention relating to the Status of Refugees, 1951 — Article 31(1) — Interpretation — Applicants in possession of false documents when entering United Kingdom — Applicants seeking asylum — Whether applicants protected by Article 31 — Whether entitled to relief — The law of England
Summary:2The facts:—The applicants, Messrs Adimi, Sorani and Kaziu, sought asylum in the United Kingdom at different times, having fled from persecution in their respective home countries of Algeria, Iraq and Albania. They were prosecuted for being in possession of false passports under Section 5 of the Forgery and Counterfeiting Act 1981 and/or Section 1(1) of the Criminal Attempts Act 1981 for possession of false passports, Messrs Sorani and Kaziu having been arrested en route to seeking asylum in Canada. The applicants applied for judicial review of the decisions to prosecute them, claiming that they had been denied the protection of Article 31(1) of the Convention relating to the Status of Refugees, 1951 (“the Refugee Convention”)3 to which they were entitled.
The applicants contended that all refugees apprehended with false documents, whether on entry or in transit, should not be prosecuted regarding those papers until their asylum claim had been examined by the Secretary of State, who should at the same time determine whether Article 31(1) of the Refugee Convention was applicable. The respondents asserted that the prosecuting and judicial authorities were responsible for ensuring compliance with Article 31.
Held:—The applications were granted.
Per Simon Brown LJ: (1) Article 31(1) was included in the Refugee Convention since those fleeing persecution were rarely in a position to comply with legal entry requirements. The need for Article 31 had increased since States Parties to the Convention increasingly strove to prevent the arrival of asylum seekers (paras. 1–3).
(2) In order to rule authoritatively on the construction of the Refugee Convention, in the absence of an international tribunal able to do so, it was necessary to assess the broad purpose of Article 31, which was to provide immunity for those whose genuine seeking of asylum reasonably involved breaking the law (paras. 13–16).
(3) Article 31 covered illegal entry or use of false documents or delay which could be attributed to a bona fide desire to seek asylum in the United Kingdom or elsewhere. It extended to presumptive refugees and applied to those using false documents or entering clandestinely. To enjoy protection, the refugee had to have come directly from the country of persecution, present
himself to the authorities without delay, and show good cause for his illegal entry or presence (para. 16)(4) Refugees had some element of choice as to where they claimed asylum. They could be taken to have come “directly” when they had transited an intermediate country. The length of stay in the intermediate country, the reasons for delaying there, and whether the refugee sought or found protection there were relevant factors in determining whether refugees should be excluded from protection. This view was supported by the travaux préparatoires, conclusions adopted by the United Nations High Commissioner for Refugees and academic writings. The UNHCR's guidelines, which had considerable weight by virtue of Article 35(1) of the Refugee Convention, also supported the view that strict time limits could not be applied to the concept of “coming directly” and that each case had to be judged on its merits (paras. 17–20).
(5) A person whose intention was to claim asylum within a short time of his arrival in a country, even if he had successfully secured entry on false documents, did not breach the condition of presenting to the authorities without delay. The UNHCR guidelines supported this view. A genuine refugee showing that he was reasonably travelling on false papers had good cause for his illegal entry or presence (paras. 21–6).
(6) The responsibility for deciding on whether to prosecute asylum seekers in these cases lay with the Secretary of State. Considerations arising out of proper administration and control of immigration and asylum were more pertinent than the need to punish criminal activity. The respondents were obliged henceforth to recognize the true reach of Article 31 and institute procedures to protect those entitled to protection from prosecution for offences committed in their quest for refugee status (paras. 27–51).
(7) Although the Refugee Convention, apart from Article 33, had not been incorporated into English law, refugees generally had become entitled to the benefit of Article 31 in accordance with the developing doctrine of legitimate expectations by the time of the applicants' prosecutions. Parliament could not have intended that those entitled to claim asylum under the Immigration Rules be prosecuted in contravention of the Refugee Convention (paras. 52–8).
(8) Mr Adimi was exempt from penalty under Article 31 of the Refugee Convention. Whether or not he travelled through Italy, he probably satisfied the condition of coming directly to the United Kingdom and presenting himself without delay, irrespective of whether he claimed asylum on the night or following morning of his arrival. The outstanding prosecution should be quashed (paras. 59–62).
(9) Messrs Sorani and Kaziu should have been recognized as refugees who were exempt from penalty under Article 31 of the Refugee Convention. They were entitled to Article 31 protection in the United Kingdom since they would have been entitled to its protection in Canada, their destination country. Their status was not regularized in their short stopover in the United Kingdom and the requisite directness of flight was unbroken. Irrespective of whether refugee status had been claimed, their eligibility for asylum was clear. Since both applicants had already served their sentences, this judgment had to ensure that past mistakes were not repeated and Article 31 honoured henceforth (paras. 63–7).
Per Newman J: (1) The Refugee Convention was a living instrument designed to afford meaningful protection to refugees currently seeking asylum; a strict linguistic interpretation of Article 31(1) was not appropriate. It was necessary to use false documents when seeking asylum and a worldwide network of air travel gave a choice of refuge beyond the first safe territory. Given different State responses to asylum requests, a rational basis existed for exercising choice of country (paras. 69–72).
(2) The Refugee Convention was designed to afford protection to asylum seekers. Although ratification of that Convention might be insufficient to afford that protection, there had been a large measure of incorporation; there were ministerial statements of compliance with its terms and a practice of compliance. British law and practice in connection with the Refugee Convention had assumed that it should be given practical effect (paras. 73–85).
(3) Asylum seekers had a legitimate expectation that their protection would be given due consideration. Whether a person was entitled to benefit from the protection of Article 31(1) of the Refugee Convention had to depend upon an executive decision granting or refusing protection; it was for the Secretary of State to determine the claim for protection and whether to consider it at the same time as the claim to refugee status. Recognition of refugee status would be highly relevant to the decision on protection. The court would rarely be required to consider whether there was an arguable case for Article 31 if the Secretary of State had no cause to do so and the refugee asserted a claim (paras. 86–101).
(4) Both Mr Sorani and Mr Kaziu had a case for eligibility for refugee status and Article 31 protection but had served their prison sentences. There was no clear case for quashing the decision to prosecute. With respect to Mr Adimi, the Secretary of State would be expected to follow the conclusion of the judgment and require the discontinuation of the prosecution (paras. 102–3).
The following is the text of the judgments delivered in the Court:
Lord Justice Simon Brown
1. 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...
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