England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		19 October 2006

Thursday 19 October 2006

THE LORD CHIEF JUSTICE:

1. This is an appeal by way of case stated. On 14 March 2006, following a trial before District Judge Hunter, the appellant was convicted of an offence contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and sentenced to three months' imprisonment.
2. The questions for the opinion of this court were specified by the district judge as follows:

"(i) Is the defence under section 2(6)(b) available to a defendant in relation to a genuine document, as defined by section 2(1), where no such document exists?

(ii) If so, can section 2(6)(b) provide a defence in relation to a genuine document where the accused has travelled to and entered the United Kingdom using a false document which he has not provided in accordance with section 2(3) and has no reasonable excuse for not having done so?"

3. Section 2 of the 2004 Act so far as relevant provides as follows:

"Entering United Kingdom without passport, &c.

(1) A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which --

(a) is in force, and

(b) satisfactorily establishes his identity and nationality or citizenship.

....

(3) But a person does not commit an offence under subsection (1) or (2) if --

(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and

(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.

(4) It is a defence for a person charged with an offence under subsection (1) --

(a) to prove that he is an EEA national,

(b) to prove that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,

(c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1),

(d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or

(e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document.

....

(6) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom --

(a) subsection (4)(c) and (5)(c) shall not apply, but

(b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (3).

(7) For the purposes of subsections (4) to (6) --

(a) the fact that a document was deliberately destroyed or disposed of is not a reasonable excuse for not being in possession of it or for not providing it in accordance with subsection (3), unless it is shown that the destruction or disposal was --

(i) for a reasonable cause, or

(ii) beyond the control of the person charged with the offence, and

(b) in paragraph (a)(i) 'reasonable cause' does not include the purpose of --

(i) delaying the handling or resolution of a claim or application or the taking of a decision,

(ii) increasing the chances of success of a claim or application, or

(iii) complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.

....

(12) In this section --

'EEA national' means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),

'immigration document' means --

(a) a passport, and

(b) a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport, and

'leave or asylum interview' means an interview with an immigration officer or an official of the Secretary of State at which a person --

(a) seeks leave to enter or remain in the United Kingdom, or

(b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c42) as being incompatible with his Convention rights.

(13) For the purposes of this section --

(a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and

(b) an immigration document is a false immigration document if and in so far as it is used --

(i) outside the period for which it is expressed to be valid,

(ii) contrary to provision for its use made by the person issuing it, or

(iii) by or in respect of a person other than the person to or for whom it was issued."

4. For the purpose of the case stated the district judge stated the facts found in this succinct but adequate form:

"1. On 8 May 2005 the appellant, a Burmese national, entered the United Kingdom on a false passport supplied by a facilitator.

2. Once he had cleared Immigration Control he handed the passport back to the facilitator as instructed.

3. He subsequently attended an asylum screening interview in Croydon initially on 13 May 2006 and then on subsequent dates.

4. At no time did he produce either a genuine passport or the document he had used to gain entry to the United Kingdom.

5. He had been unable to obtain a genuine passport in Burma as he was a former political prisoner."

5. Before the district judge the appellant sought to rely on a defence provided by the combination of section 2(3)(b) and (6)(b). His primary submission was that these subsections applied solely to the production of a genuine immigration document and that he fell within this defence because he had been unable to obtain such a document.
6. The alternative defence advanced by the appellant was premised on the assumption that the two subsections also referred to a false immigration document used for the journey. In that event the appellant contended that he had a reasonable excuse for not providing the false passport by virtue of the provisions of subsection (7)(b)(iii) in that he had handed the false passport that he had used to his facilitator in circumstances where it would have been unreasonable to expect non- compliance with his instructions to do so. In the skeleton argument prepared for this appeal Mr Michael Thomas advanced the same alternative case.
7. In dealing with the first limb of the defence advanced, the district judge held that both subsections (3) and (6)(b) applied only to an immigration document that the immigrant had used on the voyage; they had no application where no such document had ever existed. Thus he ruled that it was not open to the appellant to rely upon the fact that he had been unable to provide a genuine immigration document within three days of his interview.
8. In dealing with the second limb, the district judge went on to hold that the two subsections also applied to a false immigration document that had been used on the journey. The appellant's alternative case failed, however, because he had not demonstrated that it was unreasonable to expect him not to comply with his facilitator's instructions to return the false passport.
9. Before this court Mr Chalk for the respondent, who has argued a difficult case with admirable clarity and eloquence, did not seek to uphold the district judge's reasoning in relation to the first point. He sought to uphold the decision, however, on the basis of a novel argument in relation to the true interpretation of subsection (6)(b). His submission was that this subsection should be read as follows:

"It is a defence for the defendant to prove that he has a reasonable excuse for not providing a document within three days of the interview."

Thus he gives the last few words of the subsection, in accordance with subsection (3), the limited "adverbial" meaning that the only relevant provision of subsection (3) is that the document should be provided within three days.

10. As for the document, he submits that where a false document has been used, the document in question will be the false document. Mr Chalk accepted that this interpretation was perhaps not the natural one, but submitted that the section as a whole was sufficiently ambiguous to introduce Parliamentary material under the rule in Pepper v Hart [1993] AC 593. That Parliamentary material, he submitted, demonstrated clearly that an important object of this section was to discourage the destruction of false documents. If the primary defence advanced by the appellant was a sound one, then this would to a large extent undermine the object of preventing the destruction of false documents.
11. In support of Parliament's intention, Mr Chalk also relied upon two decisions of the Criminal Division of the Court of Appeal. The first is that of R v Da Hua Weng and Guo Xing Wang [2005] EWCA Crim 2248, which was an appeal against sentence. In that case the court held that it was appropriate to consider the mischief against which the offence was aimed. Collins J giving the judgment of the court said:

"7. The reason that lay behind the Parliamentary decision to create this offence was not in order to deal generally with those who arrived here seeking asylum without documentation, or who presented false documentation, but to deal with the problem that that created by disabling the authorities from establishing precisely where they came from. The guidance from the Home Office is referred to in the case of Bei Bei Wang [2005] EWCA Crim 293. What is there said in the guidance is as follows:

'The offence is intended to discourage persons from destroying or disposing of their immigration documents en route to the United Kingdom. In particular, to discourage them from doing so in order to conceal their identity, age or nationality in an attempt to increase the chances of success of a claim or application or to make consideration of their claim or application more difficult and/or to thwart removal....'"

12. The other decision relied upon by Mr Chalk was that of R v Fraydon Navabi and Senait Tekie Embaye [2005] EWCA Crim 2865. In giving the judgment of the Court Kennedy LJ said this:

"8. In section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the section with which these appeals are concerned, Parliament sought to address directly the problem of those seeking asylum or leave to enter without documentation to establish their identity, nationality or citizenship. It was recognised that some of those seeking assistance may never have had documentation, or may have only had false documentation, but even false documentation might assist immigration authorities, and the aim was at least in part to prevent wilful disposal or destruction of documents which ought to be produced, and which would assist the immigration authorities if they were produced, so the section created a new offence ...."

Kennedy LJ then went on to refer to the section.

13. It may be that those decisions accurately represent the object of the section, as deduced from the Parliamentary material. Neither of those decisions, however, binds the court to accept the interpretation of subsection (6)(b) advanced by Mr Chalk, the first because it was a decision simply in relation to sentence; the second because no issue was raised as to the correct interpretation of the section. The issue was essentially one of fact as to whether the appellants had demonstrated that they fell within the proviso to subsection (7)(b)(iii): "unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice" of the facilitator. It seems that the premise upon which this issue was raised was that if false documents had been disposed of or destroyed in circumstances where it would have been unreasonable to expect non-compliance with a facilitator's instruction, that would provide a defence. If my conclusion about the section are correct, that was a false promise.
14. In reaching my conclusions I have found section 2 ill-drafted but not ambiguous. Nor does the interpretation I would give to that section produce an absurdity. In those circumstances, however broad the test for introducing Parliamentary material, that test is not satisfied.
15. I would, however, question the use of Pepper v Hart in the context of a criminal prosecution. Mr Chalk was not able to refer the court to any case in which Pepper v Hart has been used in that context. If a criminal statute is ambiguous, I would question whether it is appropriate by the use of Pepper v Hart to extend the ambit of the statute so as to impose criminal liability upon a defendant where, in the absence of the Parliamentary material, the court would not do so. It seems to me at least arguable that if a criminal statute is ambiguous, the defendant should have the benefit of the ambiguity.
16. I come to my conclusion as to the interpretation of this difficult section. The starting point in construing the provisions with which this appeal is concerned is to note that the section defines both an "immigration document" and a "false immigration document". Subsection (12) defines "immigration document". Mr Chalk accepted, rightly in my view, that the natural meaning of that definition relates to genuine documents of the description of the definition. If there were doubt about that it would be resolved by subsection (13), which draws a distinction between an "immigration document" and a document which purports to be or is designed to look like an immigration document, but which is a false immigration document. A false immigration document is a forgery.
17. Subsection (13)(b) deals with a document which would normally fall within the definition of an immigration document, namely a genuine passport, but states that that is to be treated as a false immigration document if it has expired or relates to a person other than the person using it.
18. Subsection (1) creates an offence if a person at a leave or asylum interview does not have in his possession an immigration document as defined in subsection (12). Having regard to the provision of subsection (13), it seems to me that reference to the document being "in force" is surplusage. The document must be both genuine and in force.
19. Subsection (3) recognises the fact that, if an immigrant has been in this country for a period before his first asylum interview, he may for good reason not have his immigration document with him and therefore the subsection gives him three days to produce it before he is guilty of a criminal offence. It is, however, quite clear -- and this Mr Chalk accepted -- that the document in question must be an "immigration document" within the meaning of that phrase in subsection (1), ie a genuine document that relates to the immigrant, and is in force.
20. I turn next to the defence afforded by subsection (4)(c). Once again it is quite clear that this defence applies where the immigrant has a reasonable excuse for not possessing an immigration document of the kind specified in subsection (1), that is an immigration document as defined in subsection (12) -- a genuine document referring to the immigrant that is in force.
21. Why does this defence not apply to an interview that takes place after the immigrant has entered the United Kingdom? The answer is obvious, I suggest. In that situation the offence is not committed by not being in possession of the immigrant document when the interview takes place, but in failing to provide it within three days of the interview. Subsection (6) adapts the subsection (4)(c) defence to that situation.
22. What, in my judgment, is quite clear is that subsection (6) deals only with the immigration document that subsection (3) requires should be provided within three days of the interview, that is, a genuine document that identifies the immigrant and is in force. Neither subsection (3) nor subsection (6) has any reference to a false immigration document. Mr Chalk's ingenious suggestion that the last words of subsection (6)(b) simply deal with the three day period provided for by subsection (3) does not accord with the natural meaning of the language; nor, so it seems to me, does it produce a statutory scheme which makes sense because the scheme does not make provision for producing a false document within three days.
23. Subsection (4)(d) deals with the defence that arises where a false immigration document is produced. It is not possible to read subsection (3) as restricting this defence to circumstances in which such a document is produced within three days of the interview. On the contrary, the natural meaning of subsection (4)(d) is that the defence arises where the immigrant produces the false document after charge, and it is at least possible that the immigrant will not be charged with an offence under section 2 until the three day period has elapsed.
24. In this case the appellant succeeded in satisfying the tribunal of fact that it was impossible for him to obtain a passport in his country of origin. In these circumstances he clearly had a reasonable excuse for not providing an immigration document, that is a genuine document, within three days of his asylum interview. In these circumstances he had a valid defence to the charge.
25. As to the submission made by counsel for the respondent that this interpretation will undermine the object of section 2, I fear that to some extent it may do so. Insofar as it does not achieve the object with which it was enacted, the reason is that the draftmanship of the section leaves much to be desired. But the result reached by my interpretation is not an absurdity in as much as the section, as I would read it, is nonetheless calculated to assist the immigration authorities to determine the country from which an immigrant has come and to deal with the problem of the immigrant who simply destroys all documents and declines to give any information as to his country of origin. The reason for this is that to rely on the defence of reasonable excuse for not being in possession of a valid immigration document, the immigrant is likely to have to establish the country from which he has come. This case is an example of that requirement being satisfied. The defence under (4)(d) requires not merely the production of a false immigration document, but again proof that that document has been used for all purposes in connection with the journey from beginning to end, and again that latter requirement, coupled with the production of the document, will assist to determine the country of origin.
26. Finally, I turn to subsection (4)(e). If the "immigration document" is to be given its natural meaning -- and as Mr Chalk observes that question does not arise expressly on this hearing -- this subsection provides a defence where the immigrant proves that from beginning to end of the journey he has not possessed a valid immigration document and on its face would appear to provide that defence even if he has entered on false documents which he has subsequently disposed or destroyed. Even in that situation, however, in order to prove that from beginning to end of the journey he has not had a valid passport, it is likely to be necessary for him to establish the country where the journey began.
27. For the reasons that I have given I would allow this appeal. The answer to the district judge is "Yes", albeit that the second question wrongly assumes that section 2(3) applies to false documents.
28. MR JUSTICE RODERICK EVANS: I agree.