Thet v Director of Public Prosecutions

Under section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the document which must be provided after a post-entry asylum interview is a genuine, current immigration document relating to the defendant. The reasonable-excuse defence in section 2(6)(b) is adapted to that obligation. It does not require production of a false document used for the journey and does not apply where no qualifying genuine document ever existed. A false document is dealt with separately by section 2(4)(d), which requires production of that document and proof that it was used throughout the journey. The court allowed the appeal because the defendant had established a reasonable excuse for not providing a genuine passport.

The appellant, a Burmese national, was convicted after an asylum screening interview of possessing no immigration document, contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. He had entered the United Kingdom using a false passport supplied by a facilitator, returned it on the facilitator’s instructions, and had been unable to obtain a genuine passport because he was a former political prisoner.

The district judge held that sections 2(3) and 2(6)(b) applied only to a document used on the journey, and that the appellant had not shown a reasonable excuse for returning the false passport. On appeal by way of case stated, the central issue was the proper construction of section 2(6)(b) and whether its defence could apply where no genuine document had been produced.

1. Appeal allowed. The court answered the first question in the affirmative, subject to the correction that section 2(3) does not apply to false documents. The second question therefore proceeded from a mistaken premise.
2. The statutory definitions distinguish an “immigration document”, meaning a genuine passport or equivalent document, from a “false immigration document”. Section 2(13) confirms that distinction. The reference in section 2(1) to a document being “in force” is surplusage because the document must in any event be genuine, current and refer to the defendant.
3. Section 2(3) gives a person interviewed after entering the United Kingdom three days to provide the genuine immigration document required by section 2(1). Section 2(6)(b) adapts the reasonable-excuse defence in section 2(4)(c) to that post-entry situation. It concerns only the genuine document required by section 2(3), not a false document used during the journey.
4. The false-document defence is separately addressed by section 2(4)(d). Its natural meaning permits the defence where the defendant produces the false document after charge and proves that it was used as an immigration document for all purposes connected with the journey. The statutory scheme contains no requirement to produce a false document within the three-day period.
5. The appellant had proved that it was impossible for him to obtain a passport in Burma. He therefore had a reasonable excuse for not providing a genuine immigration document within three days of the asylum interview and had a valid defence. The court accepted that the interpretation might imperfectly achieve the statutory object, but held that it did not produce an absurdity.
6. The court questioned whether Pepper v Hart [1993] AC 593 should be used in a criminal prosecution to extend criminal liability where the statute would not do so without Parliamentary material. That question was unnecessary to the decision because section 2 was ill-drafted but not ambiguous.

• High Court (Administrative Court): On an appeal by way of case stated from the district judge’s conviction, the court allowed the appeal and answered the first question “Yes”, while correcting the assumption in the second question that section 2(3) applied to false documents.