Fifteen years after the High Court condemned the prosecution of refugees for using false documents in their quest for a place of safety and parliament provided a statutory defence, they are still being wrongly convicted and sent to prison.

The 1951 Refugee Convention is quite clear: penalties must not be imposed on refugees (including asylum seekers not yet recognised as refugees) found illegally on the territory, if their mode of entry is related to their quest for asylum. Article 31 was drafted specifically because genuine refugees with no valid travel documents may have reason to fear border guards, who might return them to the country they have fled. Although Article 31 has been interpreted in a way which does not prevent the short-term administrative detention of asylum seekers, its ban on penalties is supposed to prohibit their prosecution and conviction for illegal entry, including their use of false documents to enter the country of asylum.

Despite this clarity, in the late 1990s it became apparent that refugees were being prosecuted and sent to prison for coming in to the UK on false documents. In 1999, several refugees for the first time made a legal challenge to their prosecution and conviction on false document offences, pointing out that the practice ‘penalised’ them in breach of Article 31. The High Court accepted that they should not have been convicted. Their convictions were quashed and they received compensation. Others, wrongly convicted before them, were encouraged to apply to have their convictions quashed, and quite a few did. The government inserted a clause into the Immigration and Asylum Bill then going through parliament, which as section 31 of the Act, gave asylum seekers a legal defence to charges related to unlawful entry through the use of false documents, and the Crown Prosecution Service (CPS) drafted guidance for prosecutors on when to prosecute and when not to. Problem solved – or so it seemed.

But in 2010, it became apparent that all was not well. Two Iranian dissidents – one a torture victim – and a Somali woman who had been shot and threatened with rape because of her ethnicity, had been arrested on arrival, processed through the magistrates’ courts on guilty pleas on the advice of their solicitors and sent to prison. They had their convictions overturned by the Court of Appeal in a test case which revealed that immigration officers, prosecutors, duty solicitors and magistrates were blissfully unaware of the legal exemption. The judges concentrated their ire on the defence lawyers, who had ‘no excuse’ for failure to advise their clients properly.

CCRC involvement

Prosecutions continued. The Criminal Cases Review Commission (CCRC) became involved through its remit to remedy miscarriages of justice. It instigated appeals to the Court of Appeal and tried to educate lawyers through articles in legal journals on the defences available for asylum seekers arrested for travelling on a false document or none. In July 2013, five more refugees had their convictions quashed by the Court of Appeal following referral of their cases by the CCRC. Once again, the judges chastised defence lawyers for advising their clients to plead guilty, finding it ‘surprising and disturbing’ that they were unaware of the correct legal position; once again, they referred to the ‘clear injustice’ that had been done. All the appellants had served sentences of between six and twelve months, and one had additionally been recommended for deportation. All had been recognised as refugees.

Following Syrian refugee Roudi Chikho’s Guardian account in February 2014 of his arrival in the UK, which consisted of arrest, conviction and a 12-month prison sentence for travelling on false documents, Richard Foster, Chair of the CCRC, wrote a letter to the paper saying that the CCRC has referred twenty-one cases to the Court of Appeal, all successfully, and has sixty more cases under consideration. He and his colleagues at the CCRC believe that there may be hundreds more refugees who have been wrongly convicted and imprisoned. ‘We should not add unnecessarily’, the letter said, ‘to the misery of the genuinely persecuted by wrongfully prosecuting them for an offence of which they are not guilty and for which charges should never have been brought.’

Continuing impact

The psychological impact on vulnerable, frequently traumatised people of spending months in prison in the country which is supposed to offer protection is well documented and thoroughly attested to by experts. Chikho commented that although he had seen terrible things in Syria, the first time he cried was in Lewes prison. But conviction of a criminal offence has longer-term impacts too. Being in prison may adversely affect an asylum seeker’s ability to prepare and present his or her asylum claim and any appeal. For those who are recognised and granted refugee status, the existence of a criminal record precludes employment in many fields, such as teaching (the profession of one of those who had his conviction quashed in August 2013) – and a twelve-month sentence triggers mandatory deportation proceedings.

The costs of misconceived legal proceedings and of incarceration, of investigation, getting convictions quashed and perhaps re-opening deportation cases (if it’s not too late) and of compensation for victims of wrongful convictions, are not negligible either, as Foster points out in his letter.

Racist equation, laziness or bad drafting?

Why the massive, continuing ignorance on the part of immigration officials, prosecutors, defence lawyers, magistrates and judges? This ignorance is at first sight quite extraordinary, given in particular the length of time that the statutory defence has been available and that its terms are set out in legal textbooks such as Archbold and Blackstone and on the website of the Crown Prosecution Service, in addition to the work of the CCRC to educate lawyers, and the appeal cases, which have attracted publicity in the legal world. It is unlikely that such ignorance of a widely publicised defence would persist in other areas of criminal law.

Could it be that the taint of illegality with which politicians and media have besmirched the seeking of asylum has permeated the legal profession so deeply that lawyers and magistrates simply cannot conceive of asylum seekers as innocent? Or is it simply that busy prosecutors and solicitors see asylum seekers undoubtedly in possession of a false document and look no further? They are certainly not helped by the fact that the statutory defence is not set out in the same law as the offence to which it relates. If you look at the Acts of Parliament containing the offences – the Identity Documents Act, the Forgery and Counterfeiting Act, the Asylum and Immigration (Treatment of Claimants) Act etc, there is no reference to a defence for bona fide refugees and asylum seekers.

Perhaps, rather than pointing an accusatory finger at overworked defence solicitors, the appeal court should suggest to parliament the simple legislative solution of inserting the statutory defence into each enactment containing the offences to which it applies, to prevent further miscarriages of justice. If, once this was done, prosecutors were still prosecuting, lawyers still advising clients to plead guilty and magistrates still convicting, then the much deeper problem of undoing the false equation between refugees and illegality would have to be tackled.

RELATED LINKS

Read an article by Yewa Holiday: ‘Prosecuting the persecuted: the impact of wrongful convictions for refugees’

Border Criminologies