| CRIME — Failed asylum seeker — Travel documentation — Failed asylum seeker refusing to provide information for travel documentation to facilitate deportation — Whether fear of return to country of origin capable of constituting reasonable excuse — Asylum and Immigration (Treatment of Claimants etc) Act 2004, s 35(3)
R v Tabnak
CA: Lord Phillips of Worth Matravers CJ, Burton and David Clarke JJ: 19 February 2007
A failed asylum seeker who was unwilling to provide information to enable travel documentation to be obtained to facilitate his deportation because of his fear of returning to his country of origin did not have a reasonable excuse for failing to provide such information.
The Court of Appeal, Criminal Division, so held in dismissing an appeal by the defendant, Masoud Tabnak, against his conviction at the Crown Court at Manchester on 26 September 2006 for failing, without reasonable excuse, to comply with a requirement of the Home Secretary to provide information to enable travel documentation to be obtained for him, contrary to s 35(3) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, for which he was sentenced to 12 months’ imprisonment.
The defendant, an Iranian national, arrived in the United Kingdom in 2000. His application for asylum was refused by the Home Secretary on the ground that his fear of persecution in Iran was not well-founded and his claim under article 3 of the Human Rights Convention was also rejected. Appeals against those decisions failed. When the defendant was asked for information required for his travel documentation, he refused to provide it, saying that his life and freedom would be at risk if he was returned to Iran. The defendant pleaded guilty to the s 35 offence after the trial judge, Judge Khokhar, ruled that he could not rely on his fear of returning to his country of origin as constituting a reasonable excuse for his failure to provide the required information.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the “reasonable excuse” that the defendant had sought to advance in the present case was not an explanation for his inability to comply with the Home Secretary’s requirement. It was an explanation for his unwillingness to do so. As a matter of law, reasons why a defendant was unwilling to comply with a s 35 requirement with which he was perfectly able to comply could not constitute a reasonable excuse for non-compliance. S 35 was concerned solely with the practical requirements of deportation. The object of the section was to facilitate compliance with those requirements. Compliance with those requirements would not, of themselves, entitle the Home Secretary to deport a person. S 35 did not provide the battleground for determining whether deportation was legitimate. The legislation made ample provision for determining that question. To permit a defendant to raise, by way of a defence to s 35, issues that fell properly to be determined in accordance with the legislation by specialist adjudicators, now the Asylum and Immigration Tribunal, would in practice make a prosecution under that section unworkable. The judge’s ruling was correct.
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