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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

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JurisdictionEngland & Wales
Judgment Date29 July 1999
Date29 July 1999
CourtQueen's Bench Division
[QUEEN'S BENCH DIVISION] REGINA v. UXBRIDGE MAGISTRATES' COURT and Another, Ex parte ADIMI REGINA v. CROWN PROSECUTION SERVICE, Ex parte SORANI REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte SORANI REGINA v. SECRETARY OF STATE FOR THE HOME DEPARTMENT and Another, Ex parte KAZIU 1999 July 13, 14, 15; 29 Simon Brown L.J. and Newman J.

Immigration - Illegal entrant - Application for asylum - Applicants carrying false documents on arrival in United Kingdom - Applicants arriving after third country transit or using United Kingdom as transit to another country - Delay in seeking asylum after arrival in United Kingdom - Applicants prosecuted for possession of false documents - Whether protected from prosecution - Convention and Protocol relating to the Status of Refugees (1951) (Cmd. 9171) and (1967)(Cmnd. 3906),

art. 31

The three applicants, A., S. and K., came to the United Kingdom at different times as asylum seekers. To evade the restrictions imposed by visa requirements and the consequences of carrier liability on their right to seek asylum, all were in possession of false passports and were prosecuted for possession or use of false documents contrary to section 5 of the Forgery and Counterfeiting Act 1981 or for attempting to obtain air services by deception contrary to section 1(1) of the Criminal Attempts Act 1981. A. came via Italy, where he had spent 10 days but he made his application for asylum upon arrival in the United Kingdom. S. came directly to the United Kingdom intending to fly on to Canada and (although it was disputed by the Secretary of State) claimed to have applied for asylum on being detained for document irregularities at Heathrow airport. K. came to the United Kingdom via Greece, where he had stayed for three days. He also intended to fly on to Canada but was stopped at Heathrow. His claim for asylum was made more than seven weeks after his arrival. A. was eventually granted asylum but the claims for asylum of the other applicants remained undetermined. A. applied for judicial review of the decision to prosecute him and of a stipendiary magistrate's refusal to grant a temporary stay of his prosecution pending determination of his asylum claim. S. and K. applied for judicial review of decisions to prosecute in their cases and of the policy of prosecuting the holders of false papers even when they were claiming asylum and, in S.'s case, of a refusal to allow an asylum claim to be made until after prosecution for the documents offence. In each case, the grounds relied on included the prohibition in article 31(1) of the Convention and Protocol relating to the Status of RefugeesF1 on the imposition of penalties against illegal entrants who came directly from a place of persecution, presented themselves without delay to the authorities and showed good cause for their illegal entry or presence.

On the applications: —

Held, granting the applications, (1) that the self-evident purpose of article 31(1), broadly construed in the light of the Convention as a whole, was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching domestic law; that where illegal entry, use of false documents or delay could be attributed to a bona fide desire to seek asylum, whether in the United Kingdom or elsewhere, that conduct should be covered by article 31(1); that the requirements to come directly and to present himself without delay did not preclude a refugee from exercising some element of choice as to where and when he claimed asylum and the exercise of such choice was not to be characterised as forum shopping; and that, accordingly, neither a short term stopover en route to such intended sanctuary, nor a failure to present his claim immediately upon arrival, should justify a refugee's forfeiting the protection of article 31 where good cause was made out (post, pp. 443E–444C, 453F).

(2) That, in the absence of incorporation of article 31(1) of the Convention into domestic law, the United Kingdom's accession to the Convention nevertheless created a legitimate expectation in the minds of asylum seekers that they would be accorded the immunity from penalty conferred by article 31(1) in the circumstances indicated; that the obligation of meeting that expectation fell on the Secretary of State for the Home Department as representing the executive arm of state and not on either the Director of Public Prosecutions or the courts; and that, therefore, it was for the Secretary of State to institute a policy appropriate to meet that obligation and against him that relief should be sought in respect of any alleged contravention (post, pp. 449E–450A, 451G–452A, 453F, 456H–457A).

Reg. v. Secretary of State for the Home Department, Ex parte Ahmed [1998] I.N.L.R. 570, C.A. applied.

Reg. v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958, H.L.(E.) considered.

(3) That whether or not A. travelled through Italy, and whether he claimed asylum on the night of his arrival or not until the following morning, he satisfied the conditions both of coming directly to the United Kingdom and of presenting himself without delay within the meaning of article 31(1); that, in the cases of S. and K., the fact that when found to be in possession of false papers they were transit passengers intending to fly on to Canada and did not intend to present themselves as asylum seekers in the United Kingdom did not preclude them from the benefit of article 31(1); that, therefore, none of the applicants should have been prosecuted; but that in the circumstances, and given the respondents' evident intention of ensuring the future application of article 31(1), it would not be appropriate to grant substantive or declaratory relief (post, pp. 452D–E, 453A–B, 462B–D).

Per Simon Brown L.J. The Secretary of State rather than the Crown Prosecution Service should assume responsibility for deciding when asylum seekers should be prosecuted in this class of case. Decisions should depend more upon considerations arising out of the proper administration and control of immigration and asylum than upon the need to suppress and punish criminal activity generally. Provided that the respondents henceforth recognise the true reach of article 31 and put in place procedures to ensure that those entitled to its protection are not prosecuted, at any rate to conviction, for offences committed in their quest for refugee status, the abuse of process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted (post, pp. 449E–450A).

Per Newman J. The protection contemplated by article 31 is, if afforded, in the nature of a pardon or grant of immunity from suit. Such relief lies with the executive to grant and is not within the class of immunity granted by the Director of Public Prosecutions. A legitimate expectation that the executive will consider whether to afford protection requires no request from the refugee for the duty upon the Secretary of State to consider the position to arise. He should do so whenever the facts disclosed to him give rise to an arguable case for consideration. His decision will be capable of challenge by judicial review, but if protection is not accorded, subject only to any defence of necessity or duress, the refugee can only raise the facts in mitigation (post, p. 461E–G).

The following cases are referred to in the judgments:

Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293; [1998] 2 W.L.R. 702; [1998] 2 All E.R. 453, H.L.(E.)

Attorney-General of Trinidad and Tobago v. Phillip (1995) 1 A.C. 396; [1994] 3 W.L.R. 1134; [1995] 1 All E.R. 93, P.C.

Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273

Phillip v. Director of Public Prosecutions [1992] 1 A.C. 545; [1992] 2 W.L.R. 211; [1992] 1 All E.R. 665, P.C.

Rayner (J. H.) (Mincing Lane) Ltd. v. Department of Trade and Industry [1990] 2 A.C. 418; [1989] 3 W.L.R. 969; [1989] 3 All E.R. 523, H.L.(E.)

Reg. v. Abdul-Hussain [1999] Crim.L.R. 570, C.A.

Reg. v. Boyes (1861) 1 B. & S. 311

Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 W.L.R. 175; [1999] 4 All E.R. 801, D.C.

Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138, H.L.(E.)

Reg. v. Ministry of Defence, Ex parte Smith [1996] Q.B. 517; [1996] 2 W.L.R. 305; [1996] 1 All E.R. 257, C.A.

Reg. v. North and East Devon Health Authority, Ex parte Coughlan [2000] 2 W.L.R. 622, C.A.

Reg. v. Secretary of State for the Home Department, Ex parte Ahmed [1998] I.N.L.R. 570, C.A.

Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514; [1987] 2 W.L.R. 606; [1987] 1 All E.R. 940, H.L.(E.)

Reg. v. Secretary of State for the Home Department, Ex parte Launder [1997] 1 W.L.R. 839; [1997] 3 All E.R. 961, H.L.(E.)

Reg. v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958; [1988] 2 W.L.R. 92; [1988] 1 All E.R. 193, H.L.(E.)

Rex v. Rudd (1775) 1 Cowp. 331

Thomas v. Baptiste [1999] 3 W.L.R. 249, P.C.

The following additional cases were cited in argument:

Attorney General's Reference (No. 1 of 1990) [1992] Q.B. 630; [1992] 3 W.L.R. 9; [1992] 3 All E.R. 169, C.A.

Khaboka v. Secretary of State for the Home Department [1993] Imm.A.R. 484, C.A.

Reg. v. Blandford Justices, Ex parte G. (An Infant) [1967] 1 Q.B. 82; [1966] 2 W.L.R. 1232; [1966] 1 All E.R. 1021, D.C.

Reg. v. Boal [1992] Q.B. 591; [1992] 2 W.L.R. 890; [1992] 3 All E.R. 177, C.A.

Reg. v. Chief Constable of Kent, Ex parte L. [1993] 1 All E.R. 756, D.C.

Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.Rep. 164, D.C.

Reg. v. Martin (Alan) [1998] A.C. 917; [1998] 2 W.L.R. 1; [1998] 1 All E.R. 193, H.L.(E.)

Reg. v. Secretary of State for the Home Department, Ex parte Jahangeer [1993] Imm.A.R. 564

Reg. v. Secretary of State for the Home Department, Ex parte Mehari [1994] Q.B. 474; [1994] 2 W.L.R. 349...

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