Mohammed, R v

Under Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the reasonable-excuse defence available after entry is not confined to a person who has possessed a genuine passport. It may be available to a claimant who entered using a false document but cannot provide a genuine document, subject to the statutory limits on what may amount to a reasonable excuse.

Conversely, a person who travelled using a false immigration document cannot rely on section 2(4)(e) merely because they never possessed a genuine document. A false document is an immigration document for this purpose. The claimant must produce it under section 2(4)(d), or establish a permitted reasonable excuse for its non-production. A conviction is unsafe where the jury was not directed to consider that defence.

Two appellants were separately convicted at the Crown Court at Croydon of failing, at an asylum interview, to have with them an in-force immigration document satisfactorily establishing identity, nationality or citizenship, contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

Each had entered the United Kingdom using a false passport supplied by an agent. Each returned the passport to the agent after passing immigration control and had no document when claiming asylum. Mohammed obtained leave to appeal. Osman’s abandoned appeal was later referred by the Criminal Cases Review Commission.

The common issues were whether a reasonable-excuse defence was available after entry, and whether section 2(4)(e) protected a person who had used but no longer possessed a false passport.

1. Appeals allowed. The convictions were unsafe because each jury should have considered whether the appellant had a reasonable excuse for failing to provide the requisite document. No retrial was ordered.

2. Section 2 creates a structured scheme. It requires the retention and production of every document used to enter the United Kingdom, whether genuine or false. The scheme accommodates refugees who cannot reasonably obtain genuine documents, while preserving immigration control and preventing the deliberate disposal of useful documents.

3. Following Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin), the reasonable-excuse defence in section 2(6)(b), read with the corresponding language in section 2(4)(c), can extend to a person who entered using a false passport but could not reasonably obtain a genuine passport. The defence remains subject to section 2(7), which limits excuses based on disposal of documents or compliance with an agent’s instructions. On the evidence in both cases, a properly directed jury could have found the excuse reasonable.

4. The court declined to follow Thet on section 2(4)(e). That provision does not provide a complete defence to a person who travelled with a false passport and then disposed of it. Such a reading would deprive section 2(4)(d), which requires production of a false document, of practical effect and would remove the limitations imposed by section 2(7). Section 2(13)(b) confirms that a false immigration document is a sub-species of an immigration document.

5. The appeals on section 2(4)(e) therefore failed, but the appeals against conviction succeeded on the misdirection concerning reasonable excuse. At that stage, a retrial would serve no useful purpose.

• Court of Appeal (Criminal Division) — allowed both appeals against conviction: [2007] EWCA Crim 2332.
• Crown Court at Croydon — Mohammed was convicted before Recorder King on 21 July 2005. Osman was convicted before His Honour Judge Tanzer on 18 August 2005.