s31 Defence for asylum seekers – a practical guide

Overview

This is a defence available to some asylum seekers who commit a crime in the course of a journey from their home country to a place of safety.

It has caused a lot of problems, and appeals to the Court of Appeal from pleas of guilty, due to the failure to advise defendants as to the availability of this defence.

Why do I need to know this?

Back in 2010, the Court of Appeal gave judgment in AM [2010] EWCA Crim 2400. After this, I gave a few lectures about immigration offences, and one thing that I said was that everyone needed to know the law in this area, as a failure to give and record proper advice could lead to a brown trouser moment being cross-examined in the full glare of the Court of Appeal.

Since then, the ante has been upped. The Lord Chief Justice in Shabani [2015] EWCA Crim 1924 reported the two solicitors involved to the SRA. It is likely that this will not only be repeated in future cases, but the questions of getting costs out of those lawyers who do not advise properly will also be considered…

It is vital that anyone who deals with an offence where the defence may apply is aware of the defence.

Why are you interested in this?

It’s an area that I’ve always been interested in. Since pupillage I’ve done both criminal and immigration law, and this was a natural overlap. I represented two of the Appellants in AM & Others [2010] EWCA Crim 2400, Mateta [2013 EWCA Crim 1372 (the current leading case in this area of law) as well as in Shabani and plenty of other cases in this area of law.

Why is there such an issue with the s31 defence?

The main problems are :

1) It’s not clear from a quick look at the legislation in Archbold/Blackstones that this defence even exists.

2) As the defence comes from an international convention, the words used don’t always mean what they appear to mean.

As an example, it’s a requirement for the defence that someone comes ‘directly’ to the UK and claim asylum as soon as was reasonably practicable.

So, take someone who leaves Iran with the following journey :

• 2 months in Thailand

• 3 weeks in Tanzania

• 1 week in Kenya

• 3 weeks in Spain

Before flying to Gatwick. They are finally arrested at Heathrow trying to leave the country to go to Canada.

In addition, the asylum claim is logged on the Home Office system as being recorded 3½ months after they were arrested.

To someone reading this as an English statute, it is obvious – the defence would not apply, it wouldn’t even be close. However, in the above factual scenario the defence is not only runnable but, according to the Court of Appeal, it would ‘quite probably have succeeded‘ (given the underlying facts).

One other example. The 2 years spent in Kenya by Mr Hassain (a Somali) was not enough (of itself) to deprive someone of the defence, when there were reasons that he could not reasonably access protection in Kenya (Hassein [2014] EWCA Crim 1978).

I have done a compilation of the facts of the journey and immigration history (where relevant) of all the cases that have gone to the Court of Appeal in the last 5 years. Each case is fact specific of course, and none of these are ‘factual precedents’, but it shows just how wide the defence can be.

If you only read one case, read Mateta [2013] EWCA Crim 1372. If you work in an area where there is an international airport, at the very least remember paras 21 and 24.

What offences does it apply to?

It will come up most often in relation to possession of a false passport at a port of entry (probably an airport). Nowadays this will be under s4 Identity Documents Act 2010.

It also applies to :

• s24A Immigration Act 1971 – leave to enter or remain by deception

• s26(1)(d) – alteration of falsification of documents

• an offence under the Forgery & Counterfeiting Act 1981

However, it may be an abuse of process to prosecute in cases where a different offence is charged, if the defence would apply (Asfaw [2008] UKHL 31).

Purpose of the defence

The defence recognises that people fleeing persecution often aren’t able to leave their home country on their own passport and get a visa for where they’re going.

The s31 defence recognises this, and excuses a refugee for offences committed in the course of their flight from persecution.

Test for the defence

The defendant will need to show that (s)he :

1. is a refugee, who

2. came ‘directly’ from their home country, and

3. did not stop in any country along the way for more than a short stopover and/or stopped in a country where she could not reasonably have been expected to be given protection under the Refugee Convention; and

4. presented himself to the authorities in the UK “without delay”; and

5. claimed asylum as soon as was reasonably practicable after arrival; and

6. had good cause for his illegal entry or presence in the UK

Inevitably, it’s slightly more complicated than this, but this is a good starting point.

Burden of Proof

For the first one – whether the person is a refugee – the defendant has the evidential burden, then the burden is on the Prosecution to disprove this to the criminal standard.

The other matters are all for the defendant to show on the balance of probabilities.

Full details of this are in Makuwa [2006] EWCA Crim 175.

How does this work in practice?

The requirements are not particularly onerous. It will generally be a question for the jury, but it is worth remembering that when advising clients, don’t think like a common law lawyer. The terms have been widely interpreted.

The key question in all the cases will be whether the explanation for the journey and actions in the UK was reasonable (whilst giving due latitude to the difficulties experienced by someone in such a persons circumstances).

Refugee

A statement that someone is at risk in their home country is generally enough to shift the burden to the Prosecution. The evidential burden is only likely to fail in a clear cut case – someone claiming asylum from the USA, or where there is clearly no ‘convention reason’. See Evans [2013] EWCA Crim 125 for an example, but even then it may be necessary to make further enquiries before ruling out a defence at a Preliminary Hearing.

Come Directly / Did not stop

This has been the cause of many of the problems historically. The key question to ask is “was the person ‘still running’ from persecution”? If they were intending to come to the UK to claim asylum, then stop overs in countries along the way may be understandable. This is so, even if they are ‘safe’ (or even EU) countries.

Also, many people rely on an agent, and it is recognised that such people may not even know which country they are in and are dependent on the agent to get them to a safe country. Further, there is often a lot of misinformation spread about (‘you can’t claim asylum in Spain‘, etc) that asylum seekers rely on.

Present without delay

Likewise, this is wider than it may seem.

Someone in transit who is arrested on exit, may still have ‘presented themselves without delay’.

Similarly, it may well be reasonable for someone to come in to the UK on a false passport, find someone from their home community, and claim asylum a day or so later.

Show good cause

This will almost never be in issue. A quest for asylum will be a good cause for an illegal presence.

Claimed asylum as soon as reasonably practicable

Again, this does not mean ‘immediately’.

There are many reasons why someone may not claim asylum straight away – natural distrust of border authorities, a misguided fear of being returned if they claim asylum at the airport, language problems, etc. It will come down to what explanation is given. The fact that someone does not formally claim asylum for days, weeks, or even months is not of itself a barrier to the defence to succeed.

Likewise, a stop in the UK, for someone who is intending to go on to a country such as the USA to claim asylum is not a barrier.

At the police station, then if there has not been an aslyum claim (and one is intended) make a note on the Custody Record and/or raise in the interview that client wants to claim asylum

Pleading Guilty

If there is a guilty plea, then it’s important to cover yourself. Mateta is clear as to what is expected :

• Make a note of the instructions given in some detail. This should include :

– the reason for leaving the home country

– does the client have a fear of returning home?

– the journey to the UK, including timings and which countries passed through (if known)

– mode of transport

– why intending to come to the UK?

– what the final destination was

– when arrived in the UK

– when arrested

• Make a note of what advice was given. In particular, has the client been advised :

  • that there is a possible defence of s31?

  • what the different aspects/requirements of it are (see above)?

  • How the client’s case fits in with each of the parts of the defence?

It is only in extreme cases that advice can be given that a defence will not succeed (as opposed to it being a defence with difficulties).

In either case, full instructions should be noted, and it is sensible to get a client to sign an endorsement that the advice has been given, and the client is pleading guilty notwithstanding being aware of the defence.

Further details

I am currently in the (very slow) process of putting together lectures I’ve given, and other notes and advices that I’ve done, to one resource on immigration offences. Amongst other things, this will look at the s31 defence in more detail.

In all cases though, it is a question of fact. None of the authorities provide a definitive answer to questions such as “how long a stay in a 3^rd country still provides a defence”, but I’ve set out the caselaw to show that the defence is a wide one.

As always, none of this is legal advice, it shouldn’t be relied on for legal advice, it’s hopefully accurate but do your own research, etc etc. Feel free to contact me if there are any questions about any of this.