A pilot project to administer police cautions to undocumented and falsely documented passengers could endanger asylum rights.
In December, the Ministry of Justice (MoJ) announced a new six-month pilot cautioning scheme involving passengers at Heathrow, Stansted and East Midlands airports who commit one of a number of specified fraud and document offences to get in to the country. Currently, these passengers are either simply removed from the UK or are considered for prosecution. In future, they will be offered a police caution as an alternative, if they consent. The objects of the pilot, according to the MoJ, are to reduce the burden on the criminal justice system while leaving prosecution available for those who refuse a caution (or for whom it is inappropriate), and to provide a police record (unavailable where offenders are simply removed) to be used if the person seeks to return to the UK in the future.
The new policy is hedged with safeguards. Offenders must be over eighteen; they must have no legal basis to stay in the UK; they must admit the offence, consent to being cautioned and agree to be removed; they should be removable ‘within a reasonable time’; they should not be trafficking victims; they should have an opportunity for legal advice before they consent. So what’s the problem?
The worry, according to refugee and human rights lawyers, is that a large proportion of those committing the offences to which the project applies – being undocumented at a leave to enter or asylum interview, possessing or seeking to enter on a false document, deception – are par excellence asylum seeking offences which should not be the subject of any criminal proceedings at all, according to Article 31 of the Refugee Convention. A lengthy legal campaign by asylum rights organisations established the principle a decade ago, till then ignored by immigration officers, police and the Crown Prosecution Service. As a result, a statutory defence reflecting the position of asylum seekers was provided for crimes relating to entry, and prosecutors have had to tread very carefully to avoid ‘penalising’ genuine asylum seekers who use fraudulent means to enter the country.
The fear is that to the immigration service, police and prosecutors, a police caution may be seen as a way round the ‘no penalty’ obligation – after all, a caution is not a prosecution. This might lead them to forget the underlying obligations to refugees under the Convention. The ‘no penalty’ clause is designed to ensure that refugees are not deterred from seeking asylum, even if they have to use illegal means because of border controls. But the MoJ document provides no assurance that would-be asylum seekers will be treated in accordance with Refugee Convention obligations. Worse, for the MoJ, seeking asylum is described in the document as an act of ‘non-compliance’ which may require police or prosecutors to consider prosecution rather than a caution.
Richard Thomas, a barrister specialising in immigration crime, expresses concern and surprise that there is no reference in the MoJ document to the statutory defence for asylum-related offences. He discovered just how few advisers are aware of the asylum seekers’ defence in the course of a recent Court of Appeal case in which he appeared, where convictions for using false documents were quashed because asylum seekers who should have benefited from it had not been advised by their lawyers that there was a defence. With such widespread ignorance of the legal protection for asylum seekers within the legal profession itself, there is a real danger that vulnerable would-be asylum seekers in the custody of the police or immigration service will agree to drop their claims and accept a caution through fear of lengthy detention and criminal prosecution.
The history of seeking asylum over the past two decades has been a history of deterrence and of criminalisation. The new pilot could well result in more of the same.