Asfaw, R. v

Where a defendant is convicted of attempting to obtain services by deception in the course of seeking refuge, sentence must reflect the actual circumstances and consequences of the dishonesty. A custodial deterrent sentence is inappropriate where the conduct was directed to reaching a country of refuge, would attract no punishment if the full protection of Article 31 were given effect, and caused no demonstrated loss or penal risk to the airline.

The court did not determine whether prosecuting an offence outside the statutory defence in Immigration and Asylum Act 1999 section 31 was an abuse of process. It observed that an immigration-control policy designed to evade that defence could provide strong grounds for such a contention.

The appellant, an Ethiopian national, travelled through Heathrow using forged documents while intending to fly to the United States to seek asylum. She was acquitted of using a false instrument after relying on the refugee defence in section 31 of the Immigration and Asylum Act 1999. She pleaded guilty to attempting to obtain airline services by deception, an offence outside that statutory defence, after the trial judge rejected reliance on Article 31 as a defence to that count.

At the Crown Court at Isleworth she received nine months’ imprisonment. She appealed against conviction and sought leave to appeal against sentence. The central questions were whether the additional count was an abuse of process and whether the sentence properly reflected the refugee context and the consequences of the attempted deception.

1. The court dismissed the appeal against conviction. It did not resolve the appellant’s contention that charging attempted obtaining of services by deception, alongside a charge protected by section 31 of the Immigration and Asylum Act 1999, was an abuse of process.

2. The court nevertheless expressed concern about the apparent practice of combining such counts when an asylum seeker uses false documents to travel to another place of refuge. If the additional count were brought as an immigration-control measure to prevent reliance on the statutory defence, there would be strong grounds for alleging abuse of process. The court could not determine the prosecution’s purpose on the material before it, and treated that observation as unnecessary to the result.

3. The court gave leave to appeal against sentence and allowed that appeal. The sentencing judge had to assess both the circumstances and the consequences of the attempted deception. The attempt was made to travel to Washington to seek asylum. On the Crown’s concession, that conduct should attract no punishment if the United Kingdom gave full effect to Article 31 of the 1951 Convention and Protocols relating to the Status of Refugees.

4. There was no suggestion that the airline ticket had not been properly purchased. There was also no evidence that Virgin Atlantic would actually have faced a penalty had it carried the appellant. A deterrent custodial sentence directed to immigration control was therefore inconsistent with the offence and with the principle reflected in Article 31 and section 31.

5. The court quashed the nine-month sentence and ordered an absolute discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000. Under section 14, the appellant would not thereafter be deemed to have had a conviction for any purpose.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. Leave to appeal against sentence was granted, the sentence was quashed, and an absolute discharge was substituted: [2006] EWCA Crim 707.
• Crown Court at Isleworth: On 22 June 2005, the appellant pleaded guilty to attempting to obtain services by deception after the trial judge rejected reliance on Article 31 as a defence. She was acquitted of using a false instrument and, on 23 June 2005, sentenced to nine months’ imprisonment.