| IMMIGRATION — Asylum — Illegal entry or presence — Appellant arriving in United Kingdom and obtaining false documentation for onward travel to seek asylum elsewhere — Appellant attempting to leave United Kingdom by presenting false documents to airline for transport to preferred country of refuge — Appellant prosecuted for use of false documentation and dishonest attempt to obtain travel services from airline — Whether protected from prosecution — Immigration and Asylum Act 1999 ( c 33), s 31— Convention and Protocol relating to Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906), art 31
R v Asfaw (United Nations High Commissioner for Refugees intervening)[2008] UKHL 31; [2008] WLR (D) 165
HL: Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell and Lord Mance: 21 May 2008
A refugee, who arrived in the United Kingdom directly from the country of persecution in transit to a country of preferred refuge, was entitled to the protection from prosecution provided by art 31(1) of the 1951 Convention and 1967 Protocol relating to the Status of Refugees when, in attempting to leave the United Kingdom after a short stop-over she presented false documentation to the airline for onward travel to her intended sanctuary.
The House of Lords (Lord Rodger and Lord Mance dissenting) so stated when allowing Fregenet Asfaw’s appeal from the Court of Appeal [2006] Crim LR 906 which dismissed her appeal against conviction before Judge Lowen and a jury at Isleworth Crown Court of dishonestly attempting, under s 1(1) of the Criminal Attempts Act 1981, to obtain transport services to America by falsely representing at the airline check-in desk that she was authorised to use a false Italian passport (“count 2"). The Court of Appeal allowed her appeal against sentence of nine months’ imprisonment, substituting an absolute discharge. She was acquitted on count 1, of using a false passport with intent under s 3 of the Forgery and Counterfeiting Act 1981, based on the same facts, on the ground that she was entitled to immunity under s 31 of the Immigration and Asylum Act 1999. Her asylum claim, made in 2005 after her arrest, was accepted in 2007 by the Secretary of State.
LORD BINGHAM OF CORNHILL said that the Convention was to be given a purposive construction consistent with its humanitarian aims to afford safe refuge to those genuinely fleeing persecution on a Convention ground, to ensure their proper treatment in the country of refuge and, as set out in art 31, to provide protection from imposition of criminal penalties for breaches of the law, such as use of false documentation and misrepresentation, reasonably or necessarily committed in the course of flight. In the light of the Convention jurisprudence in the context of air transportation developed after the Convention had been drafted and, in accordance with R v Uxbridge Magistrates’ Court, Ex p Adimi [2001] QB 667, art 31(1) might provide immunity from prosecution to refugees in transit who came directly from their country of persecution to an intermediate country where they made a short stop-over en route for their intended refuge. The protection was therefore available not only to those illegally entering or present here but also to those attempting to leave to seek asylum elsewhere. In all the circumstances the appellant should not, consistently with art 31(1), have been subjected to criminal penalties on either count. S 31 was intended to give domestic effect to art 31(1) and accordingly, consistently with the Convention jurisprudence and the Convention’s humanitarian aims, it provided immunity, if the other conditions of section 31 were satisfied, from the imposition of criminal penalties for offences attributable to a refugee’s attempt to leave the country in the course of flight even after a short stop-over in transit. In the circumstances the jury had been entitled to acquit on count 1, an offence listed in s 31(3) to which immunity under s 31(1) applied. The offence in count 2 was not so listed, though based on the same facts, and could not be interpreted as falling within s 31. The judge should have stayed prosecution on count 2 until count 1 was determined: had the appellant been convicted on count 1 there would be no objection in principle to further prosecution on count 2; but since she was acquitted on count 1 it was an abuse of process to prosecute her to conviction on count 2. The conviction would be quashed.
LORD HOPE delivered a concurring opinion; LORD CARSWELL agreed with both opinions. LORD RODGER and LORD MANCE delivered dissenting opinions.
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Appearances: Edward Fitzgerald QC, Raza Husain and Richard Thomas (Moss & Co, Gerrards Cross, Bucks) for the appellant; Clare Montgomery QC and Julian Knowles (CPS, Ludgate Hill) for the prosecuting authority; Michael Fordham QC and Shaheed Fatima (Bake & McKenzie LLP) for the intervener.
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