R v Asfaw

The House of Lords considered whether article 31 of the 1951 Refugee Convention protects asylum-seekers who commit offences while still in transit through a contracting state (specifically when attempting to leave that state to seek asylum elsewhere) and whether section 31 of the Immigration and Asylum Act 1999 gives equivalent domestic protection. The majority held that article 31, read purposively and in light of subsequent practice and UNHCR guidance, can protect refugees who are transiting a state and who meet the article's conditions (coming directly, presenting without delay and showing good cause). Section 31 was to be read as giving immunity consistent with article 31 for offences attributable to continuing flight, and, in the circumstances of identical fact charges, further prosecution on an unlisted count amounted to an abuse of process; the appellant's conviction was quashed.

Background and facts:

• The appellant, an Ethiopian national, arrived at Heathrow on 14 February 2005 and, after a short stopover elsewhere, entered the United Kingdom on a false Ethiopian passport. She intended to travel onwards to the United States to claim asylum. An agent provided her later the same day with a false Italian passport and a ticket; she presented the Italian passport at Virgin Atlantic check-in and was arrested at the departure gate when it was detected as false.
• She was charged on two counts: (1) using a false instrument contrary to section 3 of the Forgery and Counterfeiting Act 1981; (2) attempting to obtain services by deception contrary to section 1(1) of the Criminal Attempts Act 1981. At trial the jury acquitted on count 1 (finding the section 31 defence established) but the judge would not allow reliance on article 31/section 31 for count 2 and the appellant pleaded guilty and was sentenced to nine months' imprisonment; the Court of Appeal quashed the sentence but dismissed the appeal against conviction. The appellant appealed to the House of Lords.

Nature of the appeal:

• The appellant sought to impugn her conviction on count 2. The central legal issues were (i) whether article 31 of the Refugee Convention protects refugees who are detected while attempting to leave a transit state; and (ii) whether section 31 of the Immigration and Asylum Act 1999 (which implements article 31 domestically for listed offences) extends protection to the attempted-deception offence or whether prosecution on that unlisted count constituted an abuse of process when the facts were indistinguishable from a listed offence on which the jury had acquitted.

Issues framed by the court:

• Scope and meaning of article 31(1) of the 1951 Convention in the context of modern air transit.
• Construction and scope of section 31(1) and (3) of the Immigration and Asylum Act 1999 and whether the list in subsection (3) excludes other offences which article 31 would cover.
• Whether the prosecution of an alternative count, factually indistinguishable from a listed count, amounted to an abuse of process.

Court’s reasoning and outcome:

• The majority (Lords Bingham, Hope and Carswell) applied a purposive approach to article 31, having regard to the Convention's humanitarian aims, travaux préparatoires, UNHCR guidance and state practice. They held article 31 can cover refugees briefly transiting a state and detected while seeking to leave, provided the article's conditions are met.
• Section 31 of the 1999 Act was intended to give effect to article 31. Although the list in section 31(3) did not expressly include the Criminal Attempts Act offence, the majority found that, given the identical factual basis of the two counts and Parliament's evident intention to implement article 31, allowing conviction on the unlisted count when acquitted on the listed count risked injustice and could amount to an abuse of process. The conviction on count 2 was quashed.
• A dissenting view (Lords Rodger and Mance) concluded that article 31 is properly read as protecting only offences of illegal entry or presence and does not extend to separate offences committed to leave a state; on that view section 31 did not apply to the second count and the conviction should stand.

Appeal allowed. The majority held that article 31 of the Refugee Convention, given a purposive construction informed by UNHCR guidance and practice, can protect refugees who are transiting a contracting state and detected while attempting to leave, provided the article's conditions are satisfied. Section 31 of the Immigration and Asylum Act 1999 was intended to give effect to article 31; where two counts were factually indistinguishable and one attracted the statutory defence, proceeding to convict on the other unlisted count in those circumstances was an abuse of process. The appellant's conviction on count 2 was quashed.

Trial at Isleworth Crown Court; appeal to the Court of Appeal (Criminal Division) [2006] EWCA Crim 707; further appeal to the House of Lords ([2008] UKHL 31).