Supreme Court refuses damages to refugee wrongly prosecuted for illegal entry
Shortly after Christmas in 2009, a young woman from
Somalia flew into Stanstead and claimed asylum. She had just turned 18.
As later accepted by the Home Office, she had
experienced severe depredations in her home country. This included her rape at
the age of six in the presence of her disabled mother, and the murder of both
of her parents. She fled Somalia in 2008, initially to Yemen, where she spent
the next year.
She was eventually able to fly to Europe with the
help of an agent, who provided a British passport to facilitate her entry into
the UK.
After claiming asylum, the young woman from Somalia
was prosecuted for possession of an identity document which did not belong to
her.
Welcome
to Britain
When refugees flee persecution, it is rare that they
will have the correct paperwork. It will sometimes be the case that individuals
have to forge documents in order to enter a country of safety, or pay someone
(often an agent) to supply a document that does not belong to them.
Unsurprisingly, being in possession of a document
that does not belong to you, with the intention of using it to establish your
own identity, is illegal. In fact, it is punishable by up to 10 years in prison
by s.4 Identity Documents Act 2010.
However, the law also recognizes that those fleeing
persecutions may have to resort to deception such as possession and use of
false papers in order to make good their escape.
Article 31 of the Refugee Convention 1951 prohibits
contracting states from imposing penalties for illegal entrance.
Presumably with a nod to the framers of the Convention
(or otherwise a massive coincidence), s.31(1) Immigration Asylum Act 1999 puts
this defense into practice:
It is a defense 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
i) presented
himself to the authorities in the United Kingdom without delay;
ii) showed good
cause for his illegal entry or presence; and
iii) made a claim
for asylum as soon as was reasonably practicable after his arrival in the
United Kingdom.
In a series of cases in recent years, it has emerged
that refugees have been wrongly prosecuted and wrongly convicted despite having
an arguably defence under section 31 or under a Supreme Court case
called R v Asfaw [2008] UKHL 31.
Prosecutors have acted improperly and defence
lawyers incompetently; and the courts have been very critical of these
failings.
Visit us at : www.vira.co.uk
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