Tabnak, R. v

A "reasonable excuse" for non-compliance with a requirement under section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 is a reasonable explanation for an inability to comply. It does not include a person's unwillingness to co-operate, even where that unwillingness is based on fear of the consequences of removal.

Section 35 concerns practical steps to obtain travel documentation. It is not a means of re-opening the separate statutory processes which determine whether deportation is lawful. A psychiatric condition caused by apprehension about removal may, if it actually prevents compliance, be capable of providing a reasonable excuse.

The appellant, an Iranian national, had exhausted his asylum appeal after an adjudicator found that he could safely return to Iran and faced no real risk of persecution or treatment contrary to article 3. He later refused to answer questions or complete documentation needed for an application for an Iranian travel document.

At the Crown Court at Manchester, he pleaded guilty to an offence under section 35(3) of the Asylum and Immigration (Treatment of Claimants) Act 2004 after the judge ruled that fear of the consequences of return could not constitute a reasonable excuse. The judge certified the construction point for appeal.

The appeal concerned whether fear of persecution or serious harm on repatriation could amount to a reasonable excuse, and whether the prosecution bore the burden of disproving such an excuse once raised.

1. Appeal dismissed. The trial judge correctly held that the appellant's asserted fear of return to Iran was not, on the facts, capable of amounting to a reasonable excuse for his refusal to comply with the Secretary of State's requirements.

2. The court construed "reasonable excuse" in section 35(3) of the Asylum and Immigration (Treatment of Claimants) Act 2004 in its statutory context. As with the use of the expression elsewhere in the Act, it denotes an explanation for a defendant's inability to comply with the relevant obligation. Reasons why a defendant is unwilling to comply, while fully able to do so, cannot constitute such an excuse.

3. Fear of the consequences of deportation could conceivably cause a psychiatric illness which actually prevented a person from complying. That incapacity might be capable of providing a reasonable excuse. The appellant, however, had made a choice to refuse co-operation; no case of incapacity had been advanced.

4. Section 35 is directed only to the practical requirements of deportation, including obtaining travel documentation. Compliance does not itself entitle the Secretary of State to deport a person. Questions about the safety or legality of removal must be determined through the specialist statutory immigration procedures. Allowing those issues to be re-litigated as a defence to a section 35 prosecution would make the provision unworkable.

5. The parliamentary material relied on did not establish that "reasonable excuse" had an unrestricted meaning. Since the proposed excuse failed as a matter of law, the court did not determine the burden or standard of proof for that defence.

• Court of Appeal (Criminal Division): dismissed the appeal in [2007] EWCA Crim 380.

• Crown Court at Manchester: the appellant pleaded guilty to breach of section 35(3) of the Asylum and Immigration (Treatment of Claimants) Act 2004 after an adverse ruling on the meaning of reasonable excuse, and was sentenced to 12 months' imprisonment.