Makuwa, R. v

For the defence under section 31 of the Immigration and Asylum Act 1999, a defendant who raises sufficient evidence of refugee status bears only an evidential burden. The prosecution must then prove beyond reasonable doubt that the defendant is not a refugee.

A fear of persecution is well-founded where there is a serious possibility of persecution for a Convention reason on return. If refugee status is established or remains possible, the defendant bears the legal burden, on the balance of probabilities, of proving the remaining statutory conditions. That reverse burden is a proportionate qualification of the presumption of innocence. A jury must receive separate and accurate directions on these distinct burdens and standards.

The appellant was convicted at the Crown Court at Isleworth of using a false instrument and of two counts of facilitating illegal entry. She had entered the United Kingdom with her children using an altered passport.

On the false-instrument count, she relied on section 31 of the Immigration and Asylum Act 1999. She said that she had fled the Democratic Republic of Congo because she feared persecution and had claimed asylum when a Lingala interpreter became available.

The trial judge placed on her the burden of proving all elements of the defence on the balance of probabilities. The appeal concerned the meaning of refugee status, the applicable standard for a well-founded fear, the allocation of burdens under section 31, and whether the resulting directions rendered the conviction unsafe.

1. Appeal allowed. The conviction under appeal was unsafe and had to be quashed. The judge misdirected the jury on both the burden of proving refugee status and the standard for a well-founded fear of persecution.

2. Section 31 of the Immigration and Asylum Act 1999 was enacted against the background of article 31 of the Convention Relating to the Status of Refugees 1951. It nevertheless requires the court to determine whether the defendant is a refugee in Convention terms; a pending asylum claim does not itself establish that status, and a refusal of asylum is not conclusive for the statutory defence.

3. A person is a refugee if unwilling to return because of fear of persecution and there is a serious possibility, reasonable degree of likelihood, or real and substantial risk of persecution for a Convention reason. The defendant need not prove that risk on the balance of probabilities.

4. Once the defendant adduces sufficient evidence to raise refugee status, the prosecution must prove to the ordinary criminal standard that the defendant is not a refugee. In contrast, the words “to show” in section 31(1) impose a legal burden on the defendant to prove on the balance of probabilities the remaining requirements: direct arrival from a threatened country, presentation without delay, good cause for illegal entry or presence, and an asylum claim as soon as reasonably practicable.

5. That reverse legal burden was compatible with article 6(2) of the European Convention on Human Rights. The prosecution would ordinarily be unable to disprove matters primarily within the defendant’s knowledge, while effective immigration control was a legitimate objective. The burden did not require the defendant to disprove an element of the offence and was proportionate.

6. The Crown could not cure the misdirection by relying on points about transit through Paris or delay in presentation which had not been disputed at trial. Whether the asylum claim was made as soon as reasonably practicable was for the jury. The court could not be confident that a properly directed jury would inevitably have rejected the defence.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2006] EWCA Crim 175.
• Crown Court at Isleworth: On 20 May 2005, convicted the appellant of using a false instrument and two counts of facilitating illegal entry, imposing concurrent sentences of 12 months’ imprisonment.