Thursday 14 June 2012 by Yewa Holiday

The Criminal Cases Review Commission (CCRC) is concerned that potentially hundreds of asylum seekers and refugees have been wrongly convicted after being advised to plead guilty to offences relating to their entry to the UK.

In the last 12 months, the CCRC, the statutory body responsible for reviewing alleged miscarriages of justice, has referred four cases for appeal where people were prosecuted and imprisoned when, the CCRC believes, they had a defence available to them. The CCRC is warning that there may be many more people caught up in what it is calling 'a significant and potentially widespread misunderstanding or abuse of the law'.

The four cases have common features. They involved people who:

  • entered the UK as asylum seekers/refugees;
  • were prosecuted for offences such as not having a passport;
  • were advised to plead guilty;
  • were not advised of potential defences; and
  • were sentenced to terms of imprisonment.

Three of the convictions have been quashed; the fourth is outstanding.

In November 2004, two Cameroonians, Shuale-Mongoue and Djeumeni, were arrested together trying to board a flight to Canada from Heathrow Airport. They pleaded guilty to the possession of false passports and attempting to obtain air services by deception, and were sentenced to eight months' imprisonment. They were recognised as refugees in 2007.

The case of R v Uxbridge Magistrates Court and another ex parte Adimi [1999] EWHC Admin 765 held that the prosecution of asylum seekers for offences arising from the use of false documents or deception was unlawful where the prosecution had occurred without regard to the protection from the imposition of penalties contained in article 31 of the Refugee Convention. The High Court noted that there were three limitations: refugees must have come directly from the country of origin to the UK; they must have presented themselves to the authorities without delay; and they must show good cause.

The government responded to Adimi by enacting section 31 of the Immigration and Asylum Act 1999 (the 1999 act) which provides a defence based on article 31 of the Refugee Convention to a limited range of offences, including the possession of false passports. However, the Cameroonians were advised to plead guilty. Shuale-Mongoue's barrister considered that, as he had not come directly to the UK and was leaving the UK, he did not come within the section 31 defence.

Adimi stated that article 31 of the Refugee Convention applied to those in transit. An argument made by the CPS and the Home Office in Adimi that article 31 did not apply to transit was roundly dismissed by the court. The application of article 31 and also section 31 of the 1999 act to transit was confirmed by the House of Lords in R v Asfaw [2008] UKHL 31.

The Cameroonians had entered the UK via the Ivory Coast where they could not have obtained de facto or de jure protection from persecution because there was a civil war there. This highlights the need for thorough research of countries of origin and transit countries. In a case referred by the CCRC in 2010, a Somali had spent three months in the United Arab Emirates (UAE) before arriving in the UK. The CCRC decided that he had nevertheless 'come directly' because the UAE is not a signatory to the Refugee Convention. He could not therefore have obtained protection there.

It is important to realise that there is an element of choice when interpreting 'coming directly' and that factors such as the length of stay, family reunification and the presence of an agent need to be considered. This purposive or liberal interpretation was confirmed in the House of Lords case of Asfaw.

Attempting to obtain air services by deception is not an offence listed in section 31 of the 1999 act (although it was among the offences which asylum seekers had been convicted in the Adimi case). However, Asfaw concluded, in identical circumstances, that the addition of a second charge in these circumstances was an abuse of process. The House of Lords also noted that the list in section 31 was not closed and therefore raised the possibility that article 31 could be relied on in relation to other offences which had not been included in section 31 of the 1999 act.

The other two CCRC cases concerned convictions for failing to produce a passport contrary to section 2 of the Immigration and Asylum (Treatment of Claimants) Act 2004 (the 2004 act). Tesfagabir, an Eritrean, pleaded guilty in November 2005 and was sentenced to three months' imprisonment. Adan, a Somali, pleaded guilty in September 2006 and was sentenced to five months' imprisonment.

In Soe Thet v Director of Public Prosecutions [2006] EWHC Admin 2701, the high court concluded that Thet was unable to obtain a passport in his country of origin, Burma, because he had been a political prisoner. He therefore had a 'reasonable excuse' for not providing a genuine passport as the Burmese authorities would not have provided him with one.

Tesfagabir, who was persecuted on religious grounds would not have been able to obtain a passport from the Eritrean government. As Adan originated from Somalia, he would not have been able to obtain a passport because there has not been a passport issuing authority in Somalia since 1991. As a result, they were both entitled to rely on the defence of 'reasonable excuse' in the 2004 act. The CCRC also considered that Adan's prosecution was an abuse of process because the UK government does not recognise Somali passports.

The CCRC observes that prosecutions for these types of offences appear to take place without adequate advice by lawyers who may not be familiar with the intersection of crime and international law, and also that these applicants can experience substantial injustice. For example, Shuale-Mongoue trained to be a teacher but he was unable to get a job because of his convictions. As part of its work with vulnerable applicants, the CCRC is seeking to raise awareness of these issues.

Yewa Holiday is a barrister and a case review manager at the CCRC

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