The ‘criminals’ who aren’t: getting the record corrected

The ‘criminals’ who aren’t: getting the record corrected


Written by: Frances Webber

Unknown numbers of asylum seekers, who were wrongly convicted of criminal offences, are unaware that they can apply to have their convictions quashed, but the government is doing nothing to help them, according to a group of migrant and refugee organisations.

In the 1990s, as part of the drive to stop asylum seekers from coming to Britain, immigration officers began to refer for prosecution those who sought to enter on false documents, and as a result, hundreds and possibly thousands were arrested, charged and convicted. Many spent up to nine months in prison. In 1999, the High Court denounced the practice as illegal, since the Refugee Convention, which the UK is supposed to uphold, bans penalties on refugees who enter a country of refuge illegally. As a result, the government created a special defence to charges of possessing false documents or using them to enter the country, which anyone who was fleeing from persecution could use.

But in 2008, a case which went to the House of Lords revealed that instead of respecting the spirit of the 1999 law, immigration officials were getting round it, by charging asylum seekers with offences which did not attract the statutory defence. Ms Asfaw, a woman of Ethiopian origin, was arrested at Heathrow while in transit to the US, where she intended to claim asylum. She was charged with offences under the Forgery and Counterfeiting Acts, to which her defence of fleeing from persecution was accepted, but the prosecution also charged her with attempting to obtain air services by deception, which was not listed as an offence to which the statutory defence applied. The Crown Court judge rejected her argument that it was an abuse of process to try to get round the Refugee Convention’s ban on criminalising asylum seekers, forcing her to plead guilty. She was sentenced to nine months’ imprisonment.

The House of Lords held in May 2008 that, as someone fleeing from persecution, she should not have been convicted of any offence. Her conviction was quashed. But in a recent letter to the Attorney General, a group of organisations providing advice and help to asylum seekers, including Asylum Aid, Refugee & Migrant Justice and Immigration Law Practitioners’ Association, point out that ‘there are likely to be a significant number of people who have either pleaded guilty or were found guilty of offences for which the statutory defence would now be available’, who should be entitled to challenge their convictions. The letter points out that those wrongly convicted will face serious disadvantage as a result, from problems in getting employment to access to citizenship – even if they have subsequently been recognised as genuine refugees.

The organisations ask what steps have been taken to identify and notify those entitled to have their conviction quashed, and call on the Attorney General to conduct a review of all cases so as to ensure that genuine refugees are not unfairly and unlawfully penalised for their resort to false documents while seeking refuge from persecution.

Related links

Immigration Law Practitioners’ Association

Asylum Aid

Refugee and Migrant Justice, formerly the Refugee Legal Centre

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

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