R v Asfaw (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

Article 31(1) of the 1951 United Nations Convention Relating to the Status of Refugees protects a refugee from penalties for offences reasonably committed while continuing a direct flight from persecution through a state in short-term transit. The protection can extend to using false documents in an attempt to leave that state for the intended country of asylum.

Section 31 of the Immigration and Asylum Act 1999 must be construed consistently with that protection, but its statutory defence remains confined to the listed offences. The Convention creates no free-standing domestic criminal defence, and a court cannot add an omitted offence to the statutory list. It is, however, an abuse of process to use an unlisted charge arising from the identical conduct to defeat the protection afforded by a listed charge.

The appellant, an Ethiopian refugee fleeing persecution, entered the United Kingdom at Heathrow using a false passport. She intended to continue to the United States to seek asylum. During the same day she presented another false passport at an airline check-in desk and was arrested.

She was charged with using a false instrument under section 3 of the Forgery and Counterfeiting Act 1981 and attempting to obtain air transport services by deception under section 1(1) of the Criminal Attempts Act 1981. A jury acquitted her of the listed forgery offence after accepting her section 31 defence. She had pleaded guilty to the unlisted attempted-deception offence following the trial judge's ruling that the defence was unavailable.

The Court of Appeal, [2006] EWCA Crim 707, dismissed her conviction appeal but substituted an absolute discharge. The central issues were whether article 31 protected a refugee committing an offence while leaving a transit state, whether section 31 extended to the unlisted offence, and whether pursuing that charge was an abuse of process.

1. Appeal allowed by a majority; conviction quashed. Lord Bingham and Lord Hope delivered the principal majority speeches. Lord Carswell agreed with both. Lord Rodger and Lord Mance dissented.

2. Per Lord Bingham and Lord Hope, article 31(1) of the 1951 United Nations Convention Relating to the Status of Refugees must receive a generous and purposive interpretation consistent with its humanitarian object. A refugee's short stop in an intermediate country does not necessarily end a continuing flight from persecution. Where the United Kingdom asserts criminal jurisdiction over a refugee detected while still in transit, it must afford the article's protection if its conditions are satisfied. It would be artificial to deny protection merely because false documents were detected before departure rather than upon arrival in the intended country of asylum.

3. Section 31 of the Immigration and Asylum Act 1999 likewise applies to a listed offence attributable to an attempt to leave the United Kingdom during a continuing flight from persecution. The jury was therefore entitled to acquit the appellant of the Part I forgery offence. The majority approved the approach in R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667.

4. Per Lord Bingham and Lord Hope, the attempted-deception offence was within article 31 but not within section 31(3). The Convention had not been incorporated as a whole into domestic law. It created no free-standing criminal defence, legitimate expectation or enlarged defence of necessity. Nor could the courts add an omitted offence to Parliament's exhaustive list.

5. Nevertheless, both counts arose from precisely the same presentation of the false passport. Once the jury accepted the section 31 defence to the listed count, continuing with the factually indistinguishable unlisted count defeated the protection Parliament intended to confer. The second count should initially have been stayed. Following the acquittal, the stay should have remained. Prosecuting the appellant to conviction was therefore an abuse of process.

6. Lord Rodger and Lord Mance dissented. They considered article 31 confined to penalties imposed on account of illegal entry or presence. In their view, article 2 required a refugee in a safe intermediate state to obey its laws and use the Convention's procedures for obtaining travel documents. They would have overruled the transit-departure aspect of Adimi and dismissed the appeal.

1. House of Lords: By a majority of three to two, allowed the appeal from [2006] EWCA Crim 707 and quashed the conviction for attempting to obtain services by deception.

2. Court of Appeal (Criminal Division): In [2006] EWCA Crim 707, dismissed the appeal against conviction, allowed the appeal against sentence, quashed the term of imprisonment and ordered an absolute discharge.

3. Isleworth Crown Court: The appellant was acquitted by a jury of using a false instrument after relying on section 31 of the Immigration and Asylum Act 1999. Following an adverse preliminary ruling, she pleaded guilty to attempting to obtain services by deception and received nine months' imprisonment.