The Refugee's Defence

In the summer of 2011 the Court of Appeal quashed the conviction of an appellant who had entered the United Kingdom on false identity documents and had as a result been charged and convicted by her plea of an offence under section 25(1) of the Identity Cards Act 2006. The Crown Prosecution Service had, rightly, conceded the appeal. The reason? It was because the appellant had not been advised of the defence under section 31(1) of the Immigration and Asylum Act 1999. Moreover, on the facts as known, had such a defence been relied upon, it would have been likely to succeed.

Such a case may come as a surprise. More surprising, and perhaps troubling, is that the case of this young woman is not an isolated one. This article discusses two topics that arise out of it: first, the neglected defence and the width of its ambit; and secondly, the test that appears to have arisen when the Court of Appeal considers such cases.

The 1951 United Nations Convention relating to the Status of Refugees ('the Refugee Convention) is the key legal document defining who is a refugee, their rights and the state's obligations towards them. The United Kingdom ratified the Refugee Convention on 11 March 1954 and it came into force on 22 April 1954. In 1967 temporal and geographical restrictions were lifted. In 2001 it celebrated its 50th birthday.

The significance of this instrument includes the recognition that refugees will, almost by definition, lack the legal means of crossing borders, and in pursuit of asylum will often have to resort to illegitimate means.

Article 31(1) of the Refugee Convention enshrines a protection for refugees as a result:

"31(1)The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

The importance and necessity of this defence was famously recognised in R v Uxbridge Magistrates' Court and Another, ex parte Adimi [2001] QB 667. The Court of Appeal considered the absence of a defence which could successfully import the substance of the United Kingdom's international obligations under the Convention. The significance of the problem was described concisely and cogently by Lord Justice Simon Brown as follows:

"The problems facing refugees in their quest for asylum need little emphasis. Prominent amongst them is the difficulty of gaining access to a friendly shore. Escapes from persecution have long been characterised by subterfuge and false papers. As was stated in a 1950 Memorandum from the UN Secretary-General:

"A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge."

Thus it was that Article 31(1) found its way into the 1951 UN Convention relating to the Status of Refugees (the Convention) .....

The need for Article 31 has not diminished. Quite the contrary. Although...