2 – THE s31 DEFENCE

Introduction

1. The Refugee Convention was signed in 1951 in the aftermath of, and as a response to the atrocities of, the Second World War. At that time, although there had been a huge amount of mass migration from displaced people, commercial air travel was still in its infancy.

2. Nowadays, someone fleeing persecution in their home country is often forced to take an irregular route to safety, for obvious reasons. This will often entail using people smugglers (euphemistically called ‘agents’) to get them across international borders.

3. This presents, particularly at times of mass migration during a conflict, problems for states who have a legitimate concern about, and interest in, checking the identities of those who enter the country.

4. As border controls have got tighter, the role of agents has increased and the only realistic option for many asylum seekers is to travel on false documents. This has created a tension between the interest of the authorities in controlling their borders whilst not penalising those refugees who are effectively forced into committing criminal offences in their quest for safety.

5. The Refugee Convention tried to balance these competing interests in the following way (Art 31(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 authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

6. This was never incorporated into English law. The issue had seemingly never arisen until Adimi (R v Uxbridge Magistrates’ Court, ex parte Adimi [2001] QB 667) when an attempt was made to challenge the prosecution of asylum seekers for using a false passport.

7. The Divisional Court gave guidance on the meaning of Art 31, essentially giving it the wide meaning that the s31 defence now has (see below).

Legislation

8. As a consequence of the Adimi judgment, s31 Immigration and Asylum Act 1999 was enacted to provide a statutory defence for someone in the position of Mr Adimi :

(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 other country.

(7 )If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.”

9. This applies to the following offences :

the following false documentation offences (depending on when committed) :

• s25 Identity Cards Act 2006 – 21^st January 2011 onwards

• s4 Identity Documents Act 2010 – between 7^th June 2006 and 20^th January 2011

• Part 1 of the Forgery and Counterfeiting Act 1981 – before 7^th June 2006

and

• s24A of the Immigration Act 1971 (leave to enter by deception)

• s26(1)(d) of the Immigration 1971 Act (alteration or falsification of an entry clearance document, work permit, or similar)

10. The s26(1)(d) Immigration Act is summary only, with a maximum sentence of 6 months. It is very rarely charged, not least because wherever it is committed it is likely that a more serious offence will also have been committed.

11. The defence can be broken down in to the following six elements. It will apply to a defendant who is a :

1. refugee; who

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

3. did not stop in any country along the way; 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

(1) Refugee

12. The question of ‘who is a refugee’ is, at the margin, an incredibly complex one.

13. The definition in Art 1(1) Refugee Convention :

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..”

14. It is not possible to give a reading list of cases that give a brief and concise overview of the law as it relates to refugee status. What follows is a brief summary of the law. For more detail, the Immigration and Refugee Board of Canada has probably the best, concise but complete, summary. The caselaw is obviously Canadian, which does differ to that of the UK, but is similar enough in most cases. Given the Refugee Convention’s status as an international Convention, the Courts have been more willing than in other areas of law to draw inspiration from higher court decisions of other countries.

Persecution

15. Ill treatment must reach a certain level before it can be considered to be persecution. Clearly matters such as execution, imprisonment, or torture satisfies this threshold.

16. As a rule of thumb, if there is treatment that would amount to a breach of Arts 2, 3 or 4(1) ECHR, or to a ‘flagrant denial‘ of the other ECHR rights, then there is likely to be persecution.

17. Although persecution is usually at the hands of the state, treatment from non-state actors can amount to persecution if the state is unwilling or unable to provide protection (the failure of state protection being the important part). This could be from groups that are quasi-state like (such as ISIS), or other groups (such as skinhead gangs).

18. Persecution is distinct from prosecution, although it is possible that a prosecution for a ‘normal’ crime can amount to persecution in certain circumstances. For example, a prosecution for fraud that was politically motivated would be persecution.

19. Likewise, a prosecution for behaviour that is covered by the convention (for example for homosexuality) may also be persecutory.

Well-founded

20. There must be an objective risk of persecution. The burden of proof has been variously expressed as ‘a real and substantial risk‘, ‘a reasonable degree of likelihood‘, ‘a reasonable chance‘. This is a lower threshold than a balance of probabilities (R v Home Secretary, ep Sivakumuran [1987] UKHL 1).

Convention Reason

21. It is not sufficient that there is persecution, it needs to be persecution that has occurred for a ‘convention reason’. There are five reasons that will engage the Refugee Convention :

• Race

• Religion

• Nationality

• Political belief

• Membership of a particular social group

22. The first four are fairly uncontentious and will tend to be what is commonly understood by the terms. If there is doubt, then it should be remembered that they should be interpreted widely.

23. What is important is what the agents of persecution perceive to be the case, rather than the actual state of affairs.

24. The fifth is a bit more complicated. There have been a multitude of cases as to what is, and what is not, a social group.

25. The following is taken from the UNHCR Guidelines. Whether somebody is a member of a particular social group is a very fact specific question that depends on the situation in the defendant’s home country. “A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights” .

26. In Evans [2013] EWCA Crim 125, Evans was a Jamaican who had come to the UK in 2000 and was deported in 2009 as a result of a conviction for supplying drugs. He returned in 2011 on a false passport. After a brief attempt to pass himself off as the person in the passport, he accepted that he was using false documents and claimed asylum two days later.

27. The grounds for the asylum claim were that he was targeted on his return by a gang on the belief that as someone returning from the UK, he had money.

28. There was a trial and after E’s evidence the Judge withdrew the defence on the basis that there was no convention reason – he was one of many people who were targeted by Jamaican gangs. The Court of Appeal upheld this, and declined to hold ‘migrants of Jamaican origin returning to Jamaica after having been resident in the USA, Canada or UK’, or some such similar definition, as there was no persecution independent of the group.

29. Although this decision is correct on its facts, a Court should be very wary about withdrawing a defence from a jury.

30. In YY [2016] EWCA Crim 18, YY was an Iranian man accused of committing an adultery. The Court of Appeal relied on ME Iran CG [2003] UKIAT 166 to hold that this cannot be a Particular Social Group (which may no longer be sustianable in light of caselaw since then). This should be approached with caution and should not be binding on a Crown Court considering a similar case.

31. In practice, a criminal court is not the place to determine complicated questions of asylum law. It is only in a clear cut case that a Judge should withdraw a case from a jury on the basis that a defendant is not a refugee.

32. On general principles, a Judge would not be entitled to withdraw a defence when the issue over refugee status was one of credibility.

(2) Come Directly / (3) Did not stop

33. These two elements are inter-linked. They have also historically caused the most problems of application and have featured in almost all the appeals to the Court of Appeal.

33. The Courts have not made a clear distinction between the two elements of the defence, and have approached them together. It will be looked at here through the prism of ‘coming directly’ before looking at where there is, in fact, anything added by s31(2).

34. It was stated by Simon Brown LJ in (R v Uxbridge Magistrates’ Court, ex parte Adimi [1999] EWHC Admin 765): “I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing”.

35. This interpretation was upheld (by a 3-2 majority) in Asfaw [2008] UKHL 31.

‘Coming Directly‘

36. What is the test as to whether someone has ‘come directly’ and not ‘stopped’? There is no simple answer to this question, and no one factor that will be determinative. One question to ask (quoting Lord Williams, the then Attorney General) is whether the defendant is “still running away” from persecution (per Lord Bingham in Asfaw [2008] UKHL 31).

37. An alternative formulation (per the current LCJ) is – “The real question is, looking at all the circumstances: is the person in the course of a flight? Is he making a short-term stop over? Is he in transit? Whichever phrase is used, one has to see whether at the material time the person was here, not having come to this country either temporarily or permanently seeking to stop here, but was going on. That is a question of fact” (SK [2010] EWCA Crim 1335).

38. This means that even long periods of time in a third country does not, of itself, preclude reliance on the defence. Neither will a period of time in transit in the UK.

39. A quest for asylum is often an irregular journey, and can take place over many months (and even years). Although people born and brought up in the UK are well aware of which countries are safe, and which are not, it may not be as clear to an asylum seeker (who additionally may not even know which country they are in).

40. Finally, a refugee has an element of choice as to which country they wish to settle in. Therefore a period of time in transit, even in the UK, is not sufficient to lose the protection of the defence. As was simon by Simon Brown J “some element of choice is indeed open to refugees as to where they may properly claim asylum” (R v Uxbridge Magistrates’ Court, ex parte Adimi [1999] EWHC Admin 765).

41. There are many reasons, good and bad, why someone would pass through other safe (including safe EU) countries in order to get to the UK – knowledge of English and family members already present here being two obvious ones. Similarly, these may be reasons why somebody would be in transit in the UK and not claim asylum.

42. A failure to claim asylum elsewhere may provide good ammunition for a prosecutor when cross-examining a defendant, but does not necessarily mean that the defence is excluded.

43. A summary of all the Court of Appeal cases that have considered the s31 defence and allowed the appeal since AM & Others [2010 EWCA Crim 2400 follows, along with a brief summary of the journey taken :

• AM & Others [2010] EWCA Crim 2400 –

  • MV – Iranian who went by land to Turkey, then by plane to Syria (1 week) before flying to Spain (3 hours spent in the airport).

  • RM – Somali. Left Somalia by lorry through ‘various African countries’ before flying to the Netherlands (3 days) and on to the UK.

  • MN – Iranian. Left Iran on a lorry for 25 days, ending up in Greece (2 weeks locked in a flat) before flying to the UK.

• Dastjerdi [2011] EWCA Crim 365 – Iranian, came to UK via Turkey and ‘two other countries’ (length of stay unknown) – was going to Canada but nobody met him at the UK, so claimed asylum.

• Jaddi [2012] EWCA Crim 2565 – Iranian who had previously unsuccessfully claimed asylum in the UK and returned. Came to UK with the help of an agent through Turkey (1 month), Greece (2-3 days), Italy (3-4 days) before flying to Gatwick. There he produced two false documents before being arrested (although there was some factual dispute as to exactly what happened).

• Adom [2013] EWCA Crim 384 – Ghanian, flew to Egypt (in transit for a few hours), then to UK. Presented passport on arrival then claimed asylum after he was fingerprinted.

• Mateta [2013] EWCA Crim 1372 –

  • Mateta – national of the DRC, came to the UK via an overnight stay in Belgium, on way to Canada to claim asylum. Arrested at airport when leaving to go to Canada (length of stay in UK unknown)

  • Adukwa – Cameroonian national. Flew to Kenya (where he remained in the airport at all times) then to Heathrow. Arrested trying to leave Manchester airport the next day on a flight to Canada where he was intending to claim asylum).

  • Bashir – Somali. Travelled via Kenya (1 month), Dubai and Greece (length unknown). Claimed asylum after arrest.

  • Amir Ghavami & Saeideh Afshar – Iranian husband and wife. Came to UK via Thailand (2 months, flying there on their own passports with a valid visa), Tanzania (20 days), Kenya (7 days) and Spain (20 days). Flew to Gatwick, before getting a bus to Heathrow to fly to Canada where they intended to claim asylum. Arrested whilst trying to board the plane to leave the UK.

• Zondo [2014] EWCA Crim 1501 – Zimbabwean, came to the UK via South Africa and Qatar (length of time unknown). Non-counsel application, so very little detail.

• Hussein [2014] EWCA Crim 1978 – Somali, left Somalia and spent 2 years in Kenya. Didn’t claim asylum there as “he did not wish to be held in a refugee camp where he could not earn a living in order to support his family”. Came to UK via Tanzania (with a stop of about 3 weeks), not stopping there as he “did not come across any refugee camps, and in any event did not know how to apply for asylum”.

• Sidiqi [2014] EWCA Crim 2479 – Iranian husband and wife. Came to UK via Turkey and then by air to Spain (length of stay unknown), intending to travel to the USA to claim asylum there.

Claimed asylum in the UK after arrest when trying to leave the country.

• Sadeghi [2014] EWCA Crim 2933 – Iranian. Left via Turkey, before flying to Tanzania, then going to Zambia by train, before flying to the UK (length of time in those countries unknown). Intending to go on to Canada to claim asylum. Spent 7-8 days in UK before being arrested trying to board a flight to Canada. Claimed asylum 23 days after arrival in the UK.

It is worth noting some comments from the Court of Appeal :

“he could not reasonably have been expected to claim asylum in Turkey, Tanzania or Zambia. Indeed it is clear that in any event he was under the control of an agent at that time who was conducting his intended transit to Canada, which provides a perfectly sensible explanation, on his part, as to why he did not seek asylum in any of those places”

• Mulugeta & others [2015] EWCA Crim 6 –

  • Issa – Somali, came to the UK via Dubai (some weeks), then transiting through Holland.

  • Firouzi – Iranian, came via Thailand and Uganda (total of 6 weeks). Spent 14 days in the UK before being arrested trying to board a flight to Canada where he was intending to claim asylum.

• Shabani [2015] EWCA Crim 1924 – Iranian. Left via Turkey, before flying to Spain (for 11 days), then to the UK.

44. None of these are ‘factual precedents’, and should not be considered as such, but they give an overview of just how wide the defence is.

45. Each case will be decided on its own facts; generally speaking, EU countries are safer than non-EU countries, and the longer the stay in a third country the weaker the defence is. It will be an exceptional case however where a Judge would be entitled to withdraw the defence from the jury as this limb would inevitably fail.

Did not stop

46. The existence of s31(2) shows that ‘coming directly‘ for the purposes of s31(1) does not literally mean directly without stopping.

47. Any country that is not a signatory to the Refugee Convention can be discounted for the purposes of s31(2). A list of all signatories is available online¹ along with a map which may be easier to navigate².

48. It was confirmed in MMH [2008] EWCA Crim 3117 that s31(2) must be read in the spirit of Art 31, so that somebody who was in transit for a short period of time can be considered to have not ‘stopped’ for the purpose of the legislation (rather than saying that he could not reasonably have been given protection). In essence, there is no longer any real difference between these two limbs of the defence.

(4) Present without delay

49. The rationale for this aspect of the defence is that a genuine refugee who comes to a safe country should co-operate with the host country and not hide their presence. The idea being that someone who is a ‘genuine’ refugee would not go to ground.

50. ‘Present’ does not mean ‘present and claim asylum’. Given that, it is likely that it will be only be an issue in cases where there is a clandestine, rather than an irregular, entry.

51. Somebody who enters the UK and presents a false passport intending to claim asylum as a later stage will be able to avail themselves of the defence; “The appellant did present himself to the authorities as soon as he arrived in the United Kingdom on 11 May 2009 and proceeded through immigration control, albeit that at that time he did not claim asylum. This appellant entered the United Kingdom with false documentation. His physical entry was not concealed from the authorities.” (Firouzi [2015] EWCA Crim 6).

52. This interpretation would appear to undermine the purpose of the legislation – everyone who enters the UK on a false passport would then be covered – and it may be revisited in a later case.

53. But even if this conclusion is revised by the Court of Appeal, it will still be a question of fact. Presumably there will be an element of latitude to an asylum seeker who is arriving in an unfamiliar country, and who may have a history that means that they have an undertandable mistrust of uniformed border guards.

54. It is common for asylum seekers to be told, erroneously, that if they are intercepted at the airport, then they will be deported. Although this is completely incorrect, it seems to have gained currency (presumably as people smugglers feel that this is the best way of hiding their involvement from the authorities).

55. Someone who is in transit in the UK and who does not state that he is travelling on a false passport on arrival, will not be deprived of the defence; “… it was explicable that he did not present himself to the authorities in the UK. As will be evident from the facts which we have set out above, he was, at the time of being in the UK, in transit to Canada having been told he was not able to claim asylum in the United Kingdom … having accepted that the appellant had good reason not to claim asylum in the United Kingdom prior to his arrest and whilst still in transit, he did in fact claim asylum, on 3 February 2012, not long after the criminal proceedings in his case had been concluded” (Sadeghi [2014] EWCA Crim 2933).

(5) Claimed asylum as soon as reasonably practicable

56. There is an overlap with ‘presenting without delay’ and this aspect of the defence.

57. It is common for asylum seekers to hand over their false documents and then only claim asylum after these have been discovered as being forged. Whether this precludes the defence from being relied on will again be a question of fact in every case.

58. In Jaddi [2012] EWCA Crim 2565, Mr Jaddi had claimed asylum in the UK in 2006, having been a student here for several years. This claim was rejected and he left the UK in 2008 (before being deported).

59. In 2012 he returned to claim asylum, armed with a false French passport and ID document. He undoubtedly handed over his false passport to an immigration officer rather than claim asylum, but there was an element of uncertainty as to what the exact sequence of events were.

60. The Court held that :

“26 … In the great majority of cases there will simply be no excuse for a genuine refugee not to make himself known immediately he arrives in the safe place — that is to say the arrivals immigration hall at a United Kingdom airport …

29 As it seems to us, the question of whether section 31(1(c) is satisfied or not must be a question of fact in every case … The question of whether it was reasonably practicable to make a claim for asylum sooner than was done is an objective one for the jury to decide but, in deciding it, the jury will certainly have to take account of the defendant’s state of knowledge, intention and mind …

30 … it is certainly open to a tribunal of fact to conclude and in many cases it may be the right conclusion, that there is simply no reason for such a traveller not to identify himself the moment he is in friendly official hands”

61. The jury will be directed to look at all the surrounding factors; age of the defendant, whether an agent was used and present, and so forth.

62. The defence can only apply to actions taken before the claim of asylum (s31(5) and Mulugeta).

(6) Show good cause

63. This is likely to be relatively uncontentious and has not featured in any of the Court of Appeal cases to date. A genuine claim for asylum is a good reason to be illegally present in the UK.

Burden of Proof

64. It is for the Prosecution to first prove that a defendant was in possession of the false passport, or practiced a deception as the case may be.

65. The Court of Appeal determined in Makuwa [2006] EWCA Crim 175 that apart form the question of whether someone is a refugee, the burden is on the defendant with the standard being the usual one of the balance of probabilities.

66. In relation to the question of whether the defendant is a refugee, the position is more complicated and will depend on whether there has been a decision on the defendant’s claim for asylum.

67. If there has not been, then there is an evidential burden only on the defendant to raise the issue that he is a refugee. When this has been done, the burden is then on the prosecution to disprove this, to the usual criminal standard.

68. If the Home Secretary (the person in who’s name all the decisions on Refugee status is made) has refused an asylum claim, then by virtue of s31(7), the burden will be on the defendant, again to the usual ‘balance of probabilities’ standard (confirmed in Sadighpour [2012] EWCA Crim 2669).

69. The statute is silent on what the situation would be if the Home Secretary either grants asylum to a defendant, or the defendant successfully appeal to the First-Tier Tribunal before the criminal trial. Although as a matter of law this would not be binding on the CPS, it is likely that they would accept that that element of s31(1) would be satisfied.

70. Decisions by the Home Office tend to be a lot quicker now than they were a few years ago. For that reason, it is quite possible that this decision will have occurred before the trial. If it is adverse to the defendant, it may take a long time before an appeal is heard, certainly longer that the average wait for a Crown Court trial. Whether or not to adjourn a trial pending an appeal is a matter for the trial Judge’s discretion in all the circumstances.

Duress / Necessity

71. In theory both the common law defences of ‘duress’ and ‘necessity’ are available. In practice, these are very difficult defences to run.

72. They are both wider than the s31 defence, and could apply in cases where that defence is not available (for example for someone who would otherwise be a refugee but for the fact that they there was no Convention reason). In practice however, it is very unlikely that it could succeed.

Offences not covered by s31

73. The s31 defence only applies to the offences set out above.

74. In Asfaw [2008] UKHL 31, Ms Asfaw was an Ethiopian lady arrested whilst trying to leave the UK on a flight to the USA with a false passport, having been in transit here. She was charged with an offence under the Forgery and Counterfeiting Act 1981 for using the false passport, and also an offence of Attempting to Obtain Services by Deception, this being the flight. She was later recognised as a refugee.

75. At trial she was acquitted of the passport offence. As there was no defence to the other offence, she had pleaded guilty after an application to stay the proceedings as an abuse of process had failed before the jury was sworn.

76. The House of Lords allowed the appeal as, once Ms Asfaw was acquitted of the first charge, it was wrong to proceed with the second.

77. In future, if there are several counts on the indictment, only some of which attract the s31 defence, then a trial should proceed on those latter ones. If there is an acquittal, then the other count(s) should not be proceeded with.

78. If an individual is charged with only an offence(s) where Art 31 would apply, but the s31 defence does not, then the situation is more complicated. If there is an alternative charge that could be indicted on the facts, then the CPS should be invited to add that, and the situation proceed as above.

79. If for some reason the CPS decline, that an application to stay the proceedings would probably follow.

80. If there is no such charge that is possible on the facts, then an application to stay the proceedings could be made. There is no authority as to how the Courts should approach this.

Impact on Sentence

False Passport

81. The case of Kolawole [2004] EWCA Crim 3047 still sets the ‘tariff’ for people entering the UK on a false passport. For someone of good character on a plea of guilty, the guidance is a sentence in the range of 12-18 months (although in practice Crown Courts that are in the catchment area of an international port that see many such cases will tend to impose sentences lower than that).

Leave to enter by Deception

82. Notwithstanding the fact that the maximum sentence is 2 years, similar sentencing levels apply to this offence Ding [2010] EWCA Crim 1979 as to false passport offences.

83. It is an open question as to whether, if a defendant is a refugee who cannot bring himself within the s31 defence, account should be taken of his refugee status as a matter of mitigation. In Kishientine [2004] EWCA Crim 3352, it was held that the criminal courts should not involve themselves in an assessment of the genuineness of an asylum claim.

84. However, if refugee status has been granted, then this would appear to be something that should properly mitigate the sentence (the fact that someone had been trafficked into the UK was a proper matter to take into account in mitigation in a sham marriage case – G [2011] EWCA Crim 491).