Sternaj v Director of Public Prosecutions

Article 31 of the 1951 Refugee Convention and section 31 of the Immigration and Asylum Act 1999 protect a refugee or asylum seeker from penalties for qualifying conduct connected with that person’s own illegal entry or presence. They do not provide a defence to a person charged under section 25 of the Immigration Act 1971 with facilitating another person’s breach of immigration law. Section 25 and section 25A address different conduct. A properly brought section 25 prosecution is not an abuse of process merely because the facilitated person is an asylum seeker or a child.

These were appeals by way of case stated from the Canterbury Crown Court. The appellants had pleaded guilty to facilitating the illegal entry of Edmir’s two-year-old son, who was brought towards the United Kingdom using another child’s passport. They later argued that Article 31 of the 1951 Refugee Convention and section 31 of the Immigration and Asylum Act 1999 provided a defence, or that the prosecutions were an abuse of process.

The Crown Court rejected those arguments. The central questions were whether section 25 applied, whether the appellants could rely on Article 31 or section 31 in relation to facilitating a third party’s entry, and whether the prosecutions should be stayed.

Appeals dismissed. The court answered the questions in the cases stated as follows: the appellants were not entitled to rely on Article 31 protection; they could properly be charged under section 25 of the Immigration Act 1971; and the prosecutions should not be stayed as an abuse of process.

1. Sections 25 and 25A of the Immigration Act 1971 are not mutually exclusive. Section 25 applies where the defendant facilitates the commission of a breach of immigration law. Section 25A may apply where an asylum seeker arrives or enters without any breach of immigration law, and is principally directed at trafficking for gain.
2. The fact that the child had not passed through the port of entry did not prevent a section 25 offence. Section 33 defines “entrant” to include a person seeking to enter the United Kingdom. The child was therefore an illegal entrant within the statutory scheme because his attempted entry depended on deception using another passport.
3. Article 31 and section 31 concern protection for the refugee or asylum seeker whose own conduct is connected with illegal entry, presence or continuing flight from persecution. R v Alps [2001] EWCA Crim 218 supported the conclusion that the protection available to an asylum claimant did not extend to a facilitator charged with facilitating illegal entry.
4. R v Adimi [2001] QB 667 and R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061, addressed refugees’ use or attempted use of false passports. They did not establish protection for a person facilitating somebody else’s entry.
5. Because the section 25 prosecutions were properly brought and persisted in, there was no abuse of process. The court nevertheless recorded that the public-interest question might require careful consideration in a future case involving a person who both facilitated a child’s entry and sought protection for his or her own entry.

• Canterbury Crown Court: held that the prosecution was not vitiated by abuse of process, refused to permit the appellants to change their pleas, and sentenced each to eight months’ imprisonment suspended for 18 months with 120 hours’ unpaid work.
• High Court (Administrative Court): dismissed the appeals by way of case stated. It answered “none” to entitlement to Article 31 protection, “yes” to whether the appellants could properly be charged under section 25, and “no” to whether the prosecutions should be stayed as an abuse of process.