The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception under the Criminal Attempts Act. At the time, their applications to be accorded refugee status had yet to be determined by the Home Secretary. They challenged the decisions to prosecute.
Held: The provision in the Convention which protected an asylum seeker from criminal prosecution for unlawful entry into a country in order to apply for asylum, protected such applicants also from prosecution for the use of false papers produced in order to achieve such an entry. Such proceedings should await at least determination of the application for asylum.
Simon Brown LJ said: ‘What, then, was the broad purpose sought to be achieved by Article 31? Self-evidently it was to provide immunity for genuine refugees 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 31. That seems to me helpful.
That Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees) is not in doubt. Nor is it disputed that article 31’s protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely.’
Simon Brown LJ, Newman J
Times 12-Aug-1999, [1999] EWHC Admin 765, [2001] QB 667, [2000] 3 WLR 434, [1999] Imm AR 560, [1999] 4 All ER 520
Bailii
Convention Relating to the Status of Refugees 1951 (1951) (Cmd 917), Forgery and Counterfeiting Act 1981 5, Criminal Attempts Act 1981 1(1)
England and Wales
Citing:
Cited – Rex v Rudd 1775
Mrs Rudd applied for a writ of habeas corpus, having already given evidence as an accomplice and being ready to give further evidence to assist in convicting her partners in crime.
Held: Where a co-accused gave evidence for the crown and . .
Cited – Regina v Boyes 27-May-1861
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he . .
Cited – Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons PC 19-Feb-1992
(Trinidad and Tobago) There had been an insurrection, and many people were taken prisoner by the insurrectionists. To secure their release, the President issued an amnesty to all the insurgents, including the applicant. After surrendering, the . .
Cited by:
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Regina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
Cited – Regina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Cited – Kola and Another v Secretary of State for Work and Pensions HL 28-Nov-2007
The claimant said that the 1987 Regulations were invalid, in making invalid any claim for benefits by an asylum seeker who had not made his application exactly upon entry to the UK.
Held: The appeals were allowed. Section 11 of the 1971 Act is . .
Cited – Regina v Fregenet Asfaw HL 21-May-2008
The House considered the point of law: ‘If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 . .
Cited – LM and Others v Regina; Regina v M(L), B(M) and G(D) CACD 21-Oct-2010
Each defendant appealed saying that being themselves the victims of people trafficking, the prosecutions had failed to take into account its obligations under the Convention.
Held: Prosecutors had ‘a three-stage exercise of judgment. The first . .
Cited – Al-Sirri v Secretary of State for The Home Department SC 21-Nov-2012
The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .
Cited – Regina v Mohamed CACD 19-Oct-2010
The court considered the defence available to a refugee under the 1999 Act when charged with the offence of having in his possession or under his control an identity document that either to his knowledge or belief is false, or to his knowledge or . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Immigration, Crime
Leading Case
Updated: 11 November 2021; Ref: scu.140029