The Refugee Defence
In the summer of 2011 the Court of Appeal quashed the conviction of an appellant who had entered the United Kingdom on false identity documents and had as a result been charged and convicted by her plea of an offence under section 25(1) of the Identity Cards Act 2006. The Crown Prosecution Service had, rightly, conceded the appeal. The reason? It was because the appellant had not been advised of the defence under section 31(1) of the Immigration and Asylum Act 1999. Moreover, on the facts as known, had such a defence been relied upon, it would have been likely to succeed.
Such a case may come as a surprise. More surprising, and perhaps troubling, is that the case of this young woman is not an isolated one. This article discusses two topics that arise out of it: first, the neglected defence and the width of its ambit; and secondly, the test that appears to have arisen when the Court of Appeal considers such cases.
The 1951 United Nations Convention relating to the Status of Refugees (‘the Refugee Convention) is the key legal document defining who is a refugee, their rights and the state’s obligations towards them. The United Kingdom ratified the Refugee Convention on 11 March 1954 and it came into force on 22 April 1954. In 1967 temporal and geographical restrictions were lifted. In 2001 it celebrated its 50th birthday.
The significance of this instrument includes the recognition that refugees will, almost by definition, lack the legal means of crossing borders, and in pursuit of asylum will often have to resort to illegitimate means.
Article 31(1) of the Refugee Convention enshrines a protection for refugees as a result:
“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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
The importance and necessity of this defence was famously recognised in R v UxbridgeMagistrates’ Court and Another, ex parte Adimi  QB 667. The Court of Appeal considered the absence of a defence which could successfully import the substance of the United Kingdom’s international obligations under the Convention. The significance of the problem was described concisely and cogently by Lord Justice Simon Brown as follows:
“The problems facing refugees in their quest for asylum need little emphasis. Prominent amongst them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterised by subterfuge and false papers. As was stated in a 1950 Memorandum from the UN Secretary-General:
“A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge.”
Thus it was that Article 31(1) found its way into the 1951 UN Convention relating to the Status of Refugees (the Convention) …..
The need for Article 31 has not diminished. Quite the contrary. Although under the Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country), they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier’s liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents. Just when, in these circumstances, will Article 31 protect them? The precise ambit of the impunity lies at the heart of these challenges.
Each of these three applicants has fled from persecution in his home country. Each has been prosecuted for travelling to, or attempting to travel from, the UK on false papers. Each now claims to have been wrongly denied the protection conferred by Article 31.”
In due course the protection was enshrined in primary legislation as a defence to offences scheduled by 31(3)(aa) of the Immigration and Asylum Act 1999 (Part I of the Forgery and Counterfeiting Act 1981; section 4 or 6 of the Identity Documents Act 2010; sections 24Aand 26(1)(d) of the Immigration Act 1971). This section came into force on 11 November 1999 and incorporated an express provision to enable appeals via the Criminal Cases Review Commission for those convicted of such offences prior to its coming into force: subsection 8. The House of Lords( per Lord Bingham of Cornhill, Lord Hope of Craigheadand Lord Carswell; Lord Rodger of Earlsferry and Lord Mance dissenting) has made clear that, in accordance with its “humanitarian aims” the Refugee Defence should not be read as limited to offences attributable to a refugee’s illegal entry into or presence in the United Kingdom, but should provide immunity from the imposition of criminal penalties for offences attributable to a refugee’s attempt to leave the United Kingdom in the continuing course of a flight from persecution even after a short stopover in transit: R v Asfaw  AC 1061.
This Refugee Defence reads:
“(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.”
There are three important facets of the Refugee Defence: presenting oneself to the authorities without delay; having good cause for the illegal entry; and making a claim for asylum as soon as reasonably practicable. A defendant bears the legal burden, to a balance of probabilities of establishing these elements except proving their refugee status, actual or presumptive: R v Makuwa  1 WLR 2755. Where it can be shown that a defendant stopped in a Convention country en route, the defendant then has the burden of proving that they could not reasonably be expected to seek asylum in the third country. This will involve a consideration of the length of the stay in those intermediate country or countries; the reasons for delaying there; the level of freedom or self-determination; and whether or not the defendant sought or found protection either by law or in fact. As before, the defendant of course need only prove these matters on the balance of probabilities: R v H  EWCA Crim 3117.
In practical terms, if a person is detained at Border Control with false identity documents, two things happen within the next 48 hours almost without fail. First the Immigration authorities will conduct a Screening Interview, which includes questions about the reason for travel to the United Kingdom and the means of travel to the United Kingdom. Second, the police will commonly arrest and interview the person, again asking questions designed to eliminate the Refugee Defence. Therefore, if such a person is charged with these offences, the possibility of this defence is often clear and the legal representative should have the information necessary to be able to advise on the likelihood of success.
From the Crown’s perspective, there are obvious difficulties in undermining such a defence.
The fact that the defendant was stopped at Border Control and was then subjected to a Screening Interview and a police interview means that they have, by choice or otherwise, presented themselves to the authorities without delay. There is no requirement or presumption that the refugee present themselves at Border Control and prior to presenting the very illegal documents which grounds the charges. If that were the case, this requirement would have prevented the refugee from claiming asylum since entry would not have been gained.
The question is whether the defendant had ‘good cause’ for the illegal entry is not dependent upon a determination by the Immigration authorities on an application for asylum (although no defence can apply once asylum has been granted since then no illegal activity should be necessary). If that were so the criminal process would be frustrated by delay and the decision of another body would be binding on a tribunal of fact. Nevertheless, unless the defendant could not possibly have had good cause to enter, the Crown has little means of disproving any account proffered. To do so would require the operation of international mutual legal assistance often in areas of sensitivity or political dispute. The defendant similarly will be given considerable latitude when they are unable to provide any corroboration for their account.
As for whether the refugee has made a claim for political asylum without delay, this test does not require such a refugee to make the claim upon entry. The fact of being stopped will mean that the refugee is in the hands of the authorities, having their rights explained and avenues of assistance described to them. In such circumstances a claim of asylum will almost always be made at the time of the screening interview and therefore, will certainly be made without delay.
The Crown may be able to probe and undermine a defendant’s account more closely when considering the issue of whether they could reasonably have claimed asylum in a third country. It is in such details that inconsistencies tend to reveal themselves. There may be cases where the defendant can be shown to have sojourned in France for 6 months, without any fetter on their freedom to either seek asylum or travel onto the United Kingdom, and for no reason other than to sample the food and culture of the region. But such cases will rare if they exist at all. In very many cases the defendant will have used an ‘agent’ to facilitate their travel. Such an agent will be a plausibly shadowy figure. Investigation into such a person is likely to be costly, lengthy and uncertain of securing any reliable information. More often than not, the length of stay will not be great; the delay will be said to be the result of the necessary arrangements for onward travel; the defendant will be confined to a premises or acting under orders from an agent through whom the travel has taken place; the defendant will little about the country in which they are or their rights; and the defendant will have made a specific arrangement with an agent to come to the United Kingdom. It will be almost impossible to disprove anything said consistently by a defendant in this regard. Again further investigation will require mutual legal assistance, costing time and money that may be thought to be disproportionate to the simplicity of the instant offence. Certainly, even investigations into traveller manifests are uncommon.
In that context, then, it is all the more surprising that a refugee defendant is advised to plead guilty without any advice being given as to the availability of the Refugee Defence.
It might be thought that when such a person is being interviewed, a solicitor attending at the police station or during interview, would ensure that the necessary questions are raised and considered in the interview and prior to a decision to charge.
It might be thought that once such a person is charged, the standard form of advice about plea should incorporate the Refugee Defence.
The second topic of this article concerns the test that will be applied by the Court of Appeal when faced with a defendant who has pleaded guilty but can show that they were not advised of the Refugee Defence. The fact that a defendant has pleaded guilty will mean that the Court of Appeal will not interfere unless that plea can be shown to be a nullity. The fact that advice was erroneous is not of itself sufficient to make a plea a nullity. An appellant, as a defendant will be by now, must demonstrate that there was no true acknowledgment of guilt. The advice, or failure to provide such advice must be shown to go the heart of the plea such that it was not a ‘free plea’.
This was the subject of R v AM, MV, RM and MN  1 Cr App R 35 in which the Court of Appeal (Leveson LJ, Owen and Flaux JJ) were asked to consider 4 cases where appellants sought to appeal their convictions on the basis that they had not received advice and / or on the merits the section 31 defence rendered their convictions unsafe.
In short, the Court of Appeal formulated the following test: the Court of Appeal must be satisfied that the defence would “quite probably have succeeded” and that therefore there has been a clear injustice.
It will be a matter of degree what will in practice will fulfil such a test. However, in light of what is set out above, it may be thought that in many cases, the same factors that made it hard for the Crown to disprove the defence once raised, even if a defendant stopped in a third country, will mean that an appellant will succeed in showing that the defence would quite probably have succeeded and that there has been a clear injustice. It might be thought to amount to little more than a balance of probabilities.
In AM the Court of Appeal stated that: “It is thus critical that those advising defendants charged with such an offence make clear the parameters of the defence (including the limitations and potential difficulties) so that the defendant can make an informed choice whether or not to seek to advance it.”
The exhortation in AM should be taken to heart. A solicitor should likewise never fail to remind such a client of the Refugee Defence, for it is likely to succeed.