England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd February 2001

LORD JUSTICE HENRY:

1. This is the judgment of the Court. This is an interlocutory appeal with leave granted under Section 35 of the Criminal Procedure and Investigation Act, 1996 from a preliminary ruling given by His Honour Judge Crush sitting at the Crown Court at Maidstone.
2. Here a judge (we know not who) had ordered a preparatory hearing under Section 29(1) of that Act. This empowers the judge to order such a hearing where it appears to him that the indictment

"... reveals a case of such complexity, or a case whose trial is likely to be of such length that substantial benefits [identified in sub-section 2] "

are likely to accrue from such a hearing. As will be seen, in our opinion this is not a complex case, nor could it be considered a long case, so we question whether the order should ever have been made. But it was made for a good (if legally insufficient) reason - namely to clarify a point of law which is causing difficulty. So we will determine the point, whilst emphasising that Section 29 should not be used to introduce interlocutory appeals into cases which are neither complex nor long.

3. The Crown's case is that the appellant, Mr Alps, attempted to facilitate the illegal entry to the United Kingdom of his nephew. He now appeals against the judge's refusal to stay the proceedings against him on the ground that:

a) he should have immunity from prosecution under Article 31 of the Geneva Convention of 1951; and

b) that the decision to prosecute him under Section 25(1)(a) of the Immigration Act, 1971 rather than 25(1)(b) of that Act amounts to an abuse of process which the Court should prevent.

4. The appellant, Mr Alps, was born in Turkey in 1961 and is of Kurdish origin. He arrived in the United Kingdom in 1987, claimed asylum and was granted full refugee status in 1991. He became a British Citizen in 1995, and has changed his name by deed poll.
5. He is now charged on an indictment with one count:
"STATEMENT OF OFFENCE

KNOWINGLY CONCERNED IN CARRYING OUT ARRANGEMENTS FOR FACILITATING ENTRY OF ILLEGAL ENTRANTS, Contrary to Section 25(1)(a) Immigration Act 1971.

PARTICULARS OF OFFENCE

RUDOLPH ALPS on the 29th day of August 1999 was knowingly concerned in carrying out arrangements for facilitating the entry into the United Kingdom of Emram Gotzas whom he knew or had reasonable cause for believing to be an illegal entrant."

6. Emram Gotzas was the appellant's nephew. He had just left school in Turkey. Expressing his intentions ambiguously but neutrally, he wished to come to the United Kingdom from Turkey. The appellant went to meet him in France. He took with him a British passport belonging to another nephew (Gozdas Rifat), already settled in the United Kingdom. He used it in an attempt to secure the entry of Emram Gotzas. Gozdas Rifat did not know that his passport had been borrowed. Emram Gotzas had his own valid Turkish passport with him, but it was Gozdas Rifat's British passport which was used to attempt to secure his entry. That was clearly an attempt to deceive the immigration officer.
7. The Crown's case as we understand it is this. Mr Alps and his nephew drove into the United Kingdom Immigration Control Zone for the Channel Tunnel in Coquelles, France. They handed the two British passports to the immigration officer. That officer was not satisfied that Emram Goztas was the rightful holder of the British passport that he had presented, in the name of Gozdas Rifat. Emram Goztas was interviewed. He said he had come to the United Kingdom for one month. When asked where he had got the British passport presented on his behalf, he said he did not know but his uncle knew. He was asked when he was going back to Turkey, and he said one month later. He was asked why he did not use his Turkish passport to get into the United Kingdom and he said "I do not know this, my uncle knows this". He did not claim asylum in that interview, but he did say that he was frightened to go back to Turkey, and had left because he had left school and: "I didn't get on well with the police because I am Kurdish".
8. He was subsequently served with a Notice to an Illegal Entrant, authorising his detention and return to France. Another Immigration Officer interviewed Mr Alps, who admitted providing the British passport which Emram Goztas had shown to the Immigration Officer in his attempt to seek entry. Mr Alps was asked why he had done this and replied: "He wants to UK for political asylum seekers". The Crown accept that Emram Gotzas claimed political asylum. The claim was rejected and he was returned to France.
9. Mr Alps was charged under Section 25(1)(a) (facilitating the entry of an illegal immigrant), cautioned and interviewed. He admitted that he went across to France with the sole intention of bringing his nephew back into the United Kingdom. He alleged that his nephew was in political trouble with the government in Turkey, and said that there had also been a catastrophic earthquake in Turkey, which was, a reason additional to his nephew's political problems for seeking to get him into the United Kingdom. He had taken his other nephew's passport for this reason; he did this in order to get Emram Gotzas into the United Kingdom, albeit illegally. He said that he had not done this for money but for humanitarian purposes.
10. Those were the facts that caused the appellant to be charged under the above indictment. The offence was committed on 29th August 1999. The significance of that date is that the 1999 amendments to Section 25(1)(a) of the Immigration Act, 1971 contained in the Immigration and Asylum Act, 1999 had not come into force.
11. Accordingly, Section 25(1)(a) and (1A) of the Immigration Act, 1971 then read as follows:

"Assisting illegal entry and harbouring

(1) Any person knowingly concerned in making or carrying out arrangements for securing or facilitating

(a) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant;

(b) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an asylum claimant; or

(c) the obtaining by anyone of leave to remain in the United Kingdom by means which he knows or has reasonable cause for believing to include deception,

shall be guilty of an offence, punishable on summary conviction with a fine of not more than the prescribed sum or with imprisonment for not more than six months, or with both, or on conviction on indictment with a fine or with imprisonment for not more than seven years, or with both.

(1A) Nothing in subsection (1)(b) above shall apply to anything which is done-

(a) by a person otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees; or

(b) in relation to a person who has been detained under paragraph 16 of Schedule 2 to this Act, or has been granted temporary admission under paragraph 21 of that Schedule;

and in that provision 'asylum claimant' means a person who intends to make a claim for asylum (within the meaning of the Asylum and Immigration Appeals Act 1993).

Note the definition of "asylum claimant".

12. Section 33 of that Act defines "entrant" as "... a person entering or seeking to enter the United Kingdom" and "illegal entrant" as "... a person a) unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws or b) entering or seeking to enter by means which include deception by another person.".
13. Lord Slynn applied those definitions in his leading speech in R -v- Naillie & Kanesarajah [1993] AC 674 at 680C:

"It is said however that 'illegal entrant' includes a person seeking to enter in breach of the immigration laws. However, a person in my opinion is not seeking to enter within the meaning of the Act when he disembarks. He seeks to enter when he presents himself to the immigration officer or when he tries to pass out of the area of immigration control without presenting himself to the immigration officer. Thus if he presents himself to the immigration officer and produces a forged passport or lies in a material way he is seeking to enter in breach of the immigration laws. If he is discovered to have forged documents he is an 'illegal entrant' within the definition set out in the Act. If he succeeds and is allowed in on the basis of forged documents he is also an 'illegal entrant'.

On the other hand if he presents himself to an immigration officer and asks for political asylum and does not produce a forged document or otherwise seek to deceive or deceive the immigration officer he is not a person entering or seeking to enter in breach of the immigration laws.

He may not succeed in getting political asylum; even after temporary admission he may be refused leave. But he is not an illegal entrant for the purposes of the Act since he has not entered or sought to enter in breach of the immigration laws whether or not he has a passport."

14. On the authority of Naillie, it seems plain to us that Emram Gotzas did not seek to enter the UK in breach of the immigration laws until Gozdas Rifat's passport was presented by him (or on his behalf) in an attempt to deceive the immigration officer. He then became an illegal entrant. But he would never have been an illegal entrant if he had simply presented himself to the immigration officer, stated that he had no permission to enter, and claimed asylum. He would then have been an "asylum claimant" as defined in Section 25(1A). At the time when he illegally entered the UK, he was not claiming asylum, but was a party to the attempted deception of the immigration officer, seeking to convince him that, as a British passport holder, he did not require asylum. We should not lose sight of the privilege we extend to refugees under our immigration laws: only refugees and those who satisfy immigration officers that they have the right of abode in the United Kingdom may enter without documentation: all other travellers to the United Kingdom must be in possession of some sort of documentation to obtain entry under the Rules (see HC 395, paragraph 11, and Macdonald's Immigration Law & Practice 4th Edition at p59).
15. With that introductory outline, we come to the authority that has provoked the debate and the issue we have been asked to resolve: R-v- Uxbridge Magistrates' Court and Another ex parte Adimi [2000] 3 WLR 434. In that case three asylum seekers were prosecuted under the criminal law (as distinct from the relevant sections of the Immigration Act, 1971) for the possession or use of a false passport and other documents to obtain entry. One was granted asylum and the cases of the other two had yet to be heard. They succeeded in their application for judicial review of the initiation of criminal proceedings against them because the immigration authorities had not taken into account the protection afforded them as refugees by Article 31(1) of the Geneva Convention which provides:

"The contracting states shall not impose penalties, on account of their illegal entry, 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."

16. The Divisional Court (Simon Brown LJ presiding) found that the prosecuting authorities had not considered the immunity provided by Article 31 before initiating criminal proceedings against asylum seekers. This was clearly a most unsatisfactory state of affairs, and counsel told the Court (442H - 443A) that a multi-agency group was to be set up to examine the whole issue. The Court, while not laying down how Article 31 could secure the intended immunity, favoured the Secretary of State instituting a policy to meet that obligation.
17. We emphasise that there is no reference either in Article 31 or in ex parte Adimi to any immunity being given to those who facilitate or secure entry that is illegal under Section 25. On the facts of this case, Adimi's case is irrelevant. Mr Alps' nephew was not charged and that decision was clearly right.
18. Adimi's case was decided on 29th July 1999, but was not reported in the Weekly Law Reports until a year later. On 11th November the Immigration and Asylum Act, 1999 was passed and came into force, too late to affect this offence. Section 29 amended Section 25 of the Immigration Act, 1971 by, inter alia, increasing the maximum penalty for facilitating illegal entry from seven years to ten years, but did not come into force until 2nd October 2000. Section 31 expands and defines the defences open to refugees charged with an offence under the 1971 Act.
19. The multi-agency group has met, under the auspices of the CPS, but has not reached agreement. The Court was provided with a document for discussion prepared for that group. Having had the parties' written submission on that document we are satisfied that it has no relevance in the resolution of this case. Against that legal background we examine the appellant's case.
20. The appellant effectively concedes that for the purposes of this appeal Emram Gotzas is an illegal entrant, and the appellant facilitated his attempts at entry. The Crown accepts that Emram Gotzas is an asylum seeker. But Mr Owen Davies QC contends that the would-be entrant is both an illegal entrant and an asylum seeker, but cannot be proceeded against because of the Article 31 protection. While that is, or may be, in proper cases, true of the aspirant asylum seeker, it is not true of the facilitator, nor is there any policy reason why it should be true of him - quite the reverse. We know from recent legislation that Parliament has shown its disapproval of facilitators who break the law by increasing the maximum penalties under Section 25(1)(a) from seven to ten years.
21. Mr Davies submits that no offence is committed under Section 25(1)(a) of this Act where the defendant facilitates what would otherwise be the illegal entry of someone who subsequently becomes an asylum applicant, provided he does not do it for reward.
22. Let us examine this. The words of the section are plain. It is an offence under Section 25(1)(b) for any person knowingly to facilitate the entry into the United Kingdom of anyone whom he knows or has reasonable cause to believe to be an asylum claimant unless the defendant can rely on the statutory defence provided by Section 25(1A):

"(1A) Nothing in subsection (1)(b) above shall apply to anything which is done-

(a) by a person otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees"

Mr Davies submits that that defence applies equally to those (such as Mr Alps) charged under Section 25(1)(a) being:

"... knowingly concerned in carrying out arrangements for facilitating the entry of someone who he knows or has reasonable cause to believe is an illegal entrant"

23. To put the matter at its simplest, he submits that the plain words of sub-section 1A should be read: "Nothing in sub-section (1)(a) or (b) above" (emphasis added), and that this should be done to licence such facilitators to use forged documents and deception in the case of those who they know or have reasonable cause to believe to be illegal entrants provided those illegal entrants claim asylum, and provided the facilitator does not act for reward. That is an impossible submission.
24. The wording of the Act is quite clear and quite unambiguous. Mr Alps is properly charged under Section 25(1)(a). The statutory defence under Section 25(1A) is available only to those charged under Section 25(1)(b). He was not charged under Section 25(1)(b) and rightly so, as there is no evidence that he was acting for reward. But the question as to whether or not he was acting for gain in committing the sub-section (1)(a) offence (facilitating the entry of anyone he knows to be an illegal entrant) is nothing to the point. Gain is not relevant to the question as to whether or not he has committed the offence under Section 25(1)(a) charged in the indictment.
25. The effect of those provisions is to make it an offence to facilitate the entry of an asylum claimant (one who intends to claim asylum) into the UK unless the facilitator does not do it for gain, or does it in the course of his employment by a bona fide organisation whose purpose it is to assist refugees. But that statutory defence is not given to those charged with facilitating the entry into the United Kingdom of anyone who he knows or has reasonable cause for believing to be an illegal entrant. Mr Alps must have known that trying to get his nephew into the United Kingdom on a British passport that was not his made him an illegal entrant. That he accepted in the course of his interview. He was an illegal entrant before he claimed asylum. No subsequent acquisition by the nephew of asylum seeker status could cancel or annul the fact that Mr Alps had (on the facts as set out by the Crown) attempted to get his nephew into the country by deception on a passport that was not his. That is the offence under Section 25(1)(a) alleged in the indictment.
26. Accordingly, in our judgment, there is no case for staying these proceedings as an abuse of the process of the court, and this appeal must be dismissed.
27. One further point remains. His Honour Judge Crush was invited to express his view of the construction to be given to the word "gain". That is not an issue that arises on the facts put before the Court. It is entirely hypothetical and academic at present. We do not think it right to deal with it in the abstract.