B e f o r e :
(Lord Phillips of Worth Matravers)
MR JUSTICE McCOMBE
MR JUSTICE GROSS
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Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
MR GRAHAM LODGE appeared on behalf of THE CROWN
Crown Copyright ©
Tuesday, 21st March 2006
THE LORD CHIEF JUSTICE:
The background to section 31
"Refugees unlawfully in the country of refuge
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."
"What then was the broad purpose sought to e achieved by article 31? Self-evidently it was to provide immunity for genuine refuges whose quest for asylum reasonably involved them in breaching the law. In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum, whether here or elsewhere, that conduct should be covered by article 32. That seems to me helpful."
"I propose to deal with these two applicants together since both were arrested as transit passengers embarking for Canada and, in my judgment, no material distinction can be drawn between them. I use the term transit passenger here not in a technical sense to mean only passengers who throughout have remained airside of United Kingdom immigration control (even then, if discovered with false documents, they will be brought landside for that reason) but rather to mean passengers who have been in the United Kingdom for a limited time only and are on the way to seek asylum elsewhere. I understand the respondents to argue that such passengers can never be entitled to article 31 immunity because, having been apprehended whilst attempting to leave the United Kingdom rather than enter it, it follows that they never intended to present themselves, least of all without delay, to the immigration authorities here. Mr Kovats further submits that, having chosen not to claim asylum here despite the United Kingdom clearly being a safe country for the purpose, these passengers will in addition be unable to satisfy the coming directly condition.
Neither of these arguments are in my judgment sustainable. If I am right in saying that refugees are ordinarily entitled to choose where to claim asylum, and that a short term stopover en route in a country where the traveller status is in no way regularised will not break the requisite directness of flight, then it must follow that these applicants would have been entitled to the benefit of article 31 had they reached Canada and made their asylum claims there. If article 31 would have availed them in Canada, then logically its protection cannot be denied to them here merely because they have been apprehended en route."
"Much though I prefer the applicant's proposed solution, it cannot I think be imposed upon the state as the only lawful way forward. Provided that the respondents henceforth recognise the true reach of article 31 as we are declaring it to be and put in place procedures to ensure that those entitled to its protection (ie travellers recognisable as refugees whether or not they have actually claimed asylum) are not prosecuted, at any rate to conviction, for offences committed in their quest for refugee status, I am inclined to conclude that, even without enacting a substantive defence under English law, the abuse of process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted."
"Defences based on Article 31(1) of the 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 country.
(3) In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under --
(a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
(b) section 24A of the 1971 [Immigration] Act (deception); or
(c) section 26(1)(d) of the 1971 Act (falsification of documents)
and any attempt to commit any of those offences."
"We have reached the clear conclusion from the application of well-known principles and our consideration of the language of the 1999 Act that the scope of the defence available to the claimant is that set out in section 31 and not in Article 31. Parliament has decided to give effect to the international obligations of the UK in a narrower way, but that is, on the authorities that are binding on us, the law which must be applied in the UK. The decision on the first issue in Adimi is therefore, in effect, no longer relevant to persons such as the claimant when faced with a criminal prosecution in the UK."
"The courts must ensure that people are deterred from using forged documents in a way which undermines the whole system of immigration control and these offences and others like it are very prevalent [so] that public interest requires deterrent sentences for them and for that reason only a custodial sentence can be justified."