Two cases from the Court of Appeal that have surfaced in the last week Sadighpour  EWCA Crim 2669, from Crimeline, Jaddi  EWCA Crim 2565 highlight the importance for criminal practitioners of the ‘s31 defence’ for refugees asylum seekers. This sets out a bit more about what this is, and what to look for. We covered Sadighpour with a comment piece earlier this week.
Why is this important to know?
There is nothing worse, as a criminal lawyer, than going off to Bexley Magistrates’ Court on a wet and dreary Monday morning. A close second to that however is the experience of having to justify to the Court of Appeal, potentially by going there to give evidence and be cross-examined, as to why you advised someone to plead guilty when they actually had a defence. It sounds like a true ‘brown trouser’ moment and one to be avoided.
The Refugee Convention was signed in 1951 in the aftermath of the atrocities of the Second World War. In brief, it obliged the signatories to provide refuge to those fleeing persecution for one of a list of specific reasons. Since then, the rise of air travel has led to a massive increase in asylum seekers coming to the UK, who claim to be fleeing persecution.
The government has a legitimate concern and interest in checking the identities of those arriving in the UK. There is however a tension between that and the fact that, for obvious reasons, someone fleeing persecution may well not be in a position to apply for a visa and leave their country in an orderly manner on their own documents. For these reasons, asylum seekers will frequently have to use a false passport (both so that they can safely leave their country of origin and that they can access the UK).
In order to come to the UK, an asylum seeker will typically have to engage the services of an agent. There is much money to be made for people traffickers and there is a great incentive on the traffickers/agents to cover their tracks. Partly because forged/stolen passports do not always come cheap and the agents will demand them back and partly because asylum seekers are often (erroneously) told that they will be more likely to be returned if they have the passport that they travelled on. It is not uncommon for asylum seekers to arrive without documents (which may constitute a different offence).
Who is a refugee?
A refugee is someone who cannot return to their home country due to a well-founded fear of persecution for a ‘convention reason’. This means that there is a ‘reasonable likelihood’ (much lower than the balance of probabilities) that if returned they will be persecuted (not defined but roughly covers torture, inhumane and degrading treatment and imprisonment) due to their race, religion, ethnicity, political beliefs or ‘membership of a particular social group’, the ‘convention reasons’ (defined widely, but not gaping).
What offences do this apply to?
The most common offence will be a false passport (or other identity document) offence. Since 21st January 2011 this is contained in s4 Identity Documents Act 2010.
The original list of other offences where the defence is available is here.
What is the s31 defence?
On the face of it, there is no defence to any asylum seeker caught at a port of entry with a false passport – they had it and they were using it. There is however the s31 defence (contained in s31 Immigration and Asylum Act 1999) that mirrors (in part) Art 31 Refugee Convention:
“(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he —
(a) presented himself to the authorities in the United Kingdom without delay;
(b) showed good cause for his illegal entry or presence; and
(c) made a claim for asylum as soon as was reasonably practicable after his arrival in
the United Kingdom.
(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.
(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.”
This is a defence that is often overlooked and for this reason has lead to various appeals to the Court of Appeal following guilty pleas being entered. This is partly because it is not contained within the body of s4 (or its predecessors). Blackstones refers to the defence, but not in the same section as that dealing with ID cards offences. Archbold refers to the existence of the defence in the section on ID Card offences, but very briefly, and then points the reader to another part of the book.
Also, from a Common Law/English perspective, the defence is a strange one, because it is not based on the usual common law defences that exist, but on International Law. The breadth of it is also surprising due to the fact that the Courts have interpreted it according to international law.
The mechanics of how the defence operates was set out in Makuwa  EWCA Crim 175. In essence, it is for the defendant to raise the issue of whether he is a refugee and then for the Prosecution to disprove this beyond a reasonable doubt. For the remaining issues, the burden is on the Defence on the civil standard. If s31(7) applies then it would appear that there is a legal burden on the defendant.
The leading case on the interpretation of s31 is Asfaw  UKHL 31. By a narrow (3-2) majority, the House of Lords held that s31 must be read in line with Art 31 Refugee Convention and be given a wide interpretation. Further, it applies to offences (such as Obtaining Services by Deception, in that case the services being the onward air travel to Canada) that are not specifically named in the statute. It is unclear how the Court should proceed if someone is charged with offences where the s31 defence does not apply to any of them, but it is accepted that that individual would be covered by Art 31.
The significance of the defence is that if the asylum seeker has spent time in a third country, or is in transit in the UK, or presents a false passport without claiming asylum, this will not preclude him from raising the defence (which has been the cause of various appeals from guilty pleas when lawyers have adopted too ‘criminalistic’ a view of the defence).
The question of the interpretation of s31(2) was left open by the House of Lords and was considered in MMH  EWCA Crim 3117. Here it was concluded that s31(2) should also have a wide meaning and that someone who spent time in (in that case Norway) transit or in a third country may not have been considered to have ‘stopped’. This was another example of a successful appeal following a guilty plea. This was confirmed in Mohamed  EWCA Crim 2400 where the Court of Appeal considered four conjoined cases from guilty pleas and did not doubt this interpretation. This was confirmed in the Court of Appeal in Jaddi. Further guidance was given on the importance of taking care before guilty pleas are entered and a warning that duty solicitors working in areas where this may be relevant must be familiar with the provisions of the defence.
How do you know if this defence is relevant?
In the case of anyone arrested at the airport (or another port of entry) then it is always worth checking their account against the defence.
So, for example, consider someone who leaves Iran by land to Turkey and stays there for a few weeks, before flying to the UK with a few days in Greece or Italy. They then get through passport control at Heathrow and claim asylum a day or so later. On the face of it, they would not comply with any of the defence as set out above. Because of the way that the defence has been interpreted however, all of these are live issues and that person may well get acquitted.
- People can have different reasons for leaving a country – if they have a fear of persecution in their home country, they may be a refugee even if it is not immediately obvious that there is a ‘convention reason’.
- The fact that time has been spent in other countries is not fatal to the defence.
- The fact that the defendant claimed asylum after being arrested, or in the days after coming into the country, is not fatal to the defence.
- Claiming asylum is a ‘good reason’ for the defence.