House of Lords
Published May 26, 2008
Regina v Asfaw
Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of
Earlsferry, Lord Carswell and Lord Mance Speeches May 21, 2008
The humanitarian aims of the UN Convention and Protocol relating to the Status
of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) were to be achieved by
construing its words purposively.
Therefore, a refugee in transit was entitled to protection from prosecution
under article 31(1) of that Convention when, in attempting to leave the
United Kingdom after a short stopover, she presented false documentation to
the airline for onward travel to the country where she intended to seek
asylum.
The House of Lords, Lord Rodger and Lord Mance dissenting, so stated when
allowing the appeal of Fregenet Asfaw from the dismissal by the Court of
Appeal (Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice
McCombe and Mr Justice Gross) ([2006] Crim LR 906) of her appeal against
conviction at Isleworth Crown Court (Judge Lowen and a jury) on count 2 of
dishonestly attempting, under section 1(1) of the Criminal Attempts Act
1981, to obtain transport to America by falsely representing that she was
authorised to use a false Italian passport.
She was acquitted by the jury, on count 1, of using a false passport with
intent under section 3 of the Forgery and Counterfeiting Act 1981, based on
the same facts, on the ground that she was entitled to immunity from
prosecution under section 31 of the Immigration and Asylum Act 1999.
The Court of Appeal allowed her appeal against a nine-month custodial
sentence; her asylum claim, made following arrest in 2005, was accepted in
2007.
Mr Edward Fitzgerald, QC, Mr Raza Husain and Mr Richard Thomas for the
appellant; Ms Clare Montgomery, QC and Mr Julian Knowles for the Crown;
Mr Michael Fordham, QC and Ms Shaheed Fatima for the UN High Commissioner
for Refugees, intervening.
LORD BINGHAM said that the Convention had three broad humanitarian aims:
first, to ensure that acceding states would afford safe refuge to those
genuinely fleeing from their home countries to escape persecution or
threatened persecution on grounds prescribed in the Convention; second, to
ensure reasonable treatment in their countries of refuge; third, to protect
them from the imposition of criminal penalties for breaches of the law
reasonably or necessarily committed in the course of their flight.
It was recognised in 1950, and had since become clearer, that those fleeing
persecution might have to resort to various deceptions, possession and use
of false papers, forgery, misrepresentation, to make good their escape.
His Lordship referred to article 31 which gave effect to the third aim:
contracting states would not impose penalties on refugees coming directly
from the territory of feared persecution, who entered or were present in
their territory without authorisation provided they presented themselves
without delay and showed good cause for their illegal entry or presence.
The prosecution submitted that the wording meant that immunity was limited to
offences of illegal entry and presence, excluding offences committed when
leaving an intermediate country to seek asylum elsewhere.
In his Lordship’s opinion, the words were to be construed in context; an
instrument such as the Refugee Convention had to be given a purposive
construction consistent with its humanitarian aims.
It was negotiated against the background of then recent events, particularly
in Europe. The focus of discussion was on clandestine crossing of land
frontiers, with little or no discussion of air transportation, and
accordingly no consideration of the position of refugees changing planes in
the course of escape to a country of intended asylum.
With the passage of time and growth of air transport the application of
article 31 to refugees in transit came to attract attention.
His Lordship referred to extensively academic commentary and to guidelines
published by the UNHCR in the Handbook on Procedures and Criteria for
determining Refugee Status 1992 and 1999.
He also referred to R v Uxbridge Magistrates Court, Ex parte Adimi (The
Times August 12, 1999; [2001] QB 667) where Lord Justice Simon Brown, on
analogous facts, concluded that to qualify for immunity under article 31, a
person must be coming directly from the country of persecution; that some
choice was open as to where he might claim asylum and any merely short-term
stopover en route, where his status was in no way regularised, would not
break the requisite directness of flight.
The court there held that in such a case a refugee would be entitled to the
benefit of article 31 if he reached his chosen haven and claimed asylum
there; and, if that were so, article 31 protection could not be denied him
here merely because he was apprehended en route.
In his Lordship’s opinion, Adimi was fully supported by authority
and was rightly decided.
When the appellant presented the false Italian passport at the check-in desk
she was a refugee within the Convention definition, as accepted at the
criminal trial and now by the Home Secretary. It was never questioned that
she was coming directly from the country of persecution; the jury accepted
that she had, when challenged, presented herself to the authorities and that
she had good cause for resorting to forgery and deception in the course of
her flight. Consistently with article 31 she should not have been subjected
to any criminal penalty on either count.
With regard to section 31 of the 1999 Act, his Lordship referred to the
parliamentary debates during its passage where the Attorney-General stated
the Government’s intention to provide proper protection to those within
article 31(1); “coming directly” was generously defined.
Section 31 should not be read as limited to offences attributable to a
refugee’s illegal entry or presence here, but should provide immunity, if
the other conditions were fulfilled, from the imposition of criminal
penalties for offences attributable to his attempt to leave the country in
the continuing course of a flight from persecution even after a short
stopover in transit.
That interpretation was consistent with the Convention jurisprudence, with Adimi,
with the absence of any indication of an intention to depart in the 1999 Act
from the Convention or Adimi and with the Convention’s humanitarian
purpose.
The jury, on finding the conditions in section 31 satisfied, were entitled to
acquit on count 1. That result followed because the offence was covered by
section 31(3)(a).
The offence in count 2, although within article 31, was not within section
31(3). However the judge was wrong to dismiss the appellant’s pretrial
objection to count 2 since, if the jury were to acquit on count 1 in
reliance on section 31 it would be unfair and contrary to the statutory
intention to convict her on court 2.
The appellant’s objection could only, consistently with article 31 and the
intention of section 31, have been fairly met by staying further prosecution
of count 2 at that stage. If the jury acquitted on count 1 the stay should
have been maintained; if they convicted on count 1, there would be no
objection in principle to further prosecution of count 2.
It was an abuse of process to prosecute her to conviction on count 2. At the
time of check-in she was still running away from persecution; once that was
established, count 2, being factually indistinguishable from count 1, she
should not have been convicted at all.
Lord Hope delivered a concurring opinion and Lord Carswell agreed with both.
Lord Rodger and Lord Mance delivered dissenting opinions.
Solicitors: Moss & Co, Gerrards Cross; Crown Prosecution Service,
Ludgate Hill; Baker & McKenzie LLP.
