R v Asfaw
The protection against penalising refugees for illegal entry under article 31 of the Refugee Convention extends to refugees who use false documents while in transit through the United Kingdom to claim asylum elsewhere.
Facts
Ms Asfaw, an Ethiopian who had suffered persecution, arrived at Heathrow on a false passport, intending to travel on to the United States to claim asylum there. She was arrested when she tried to board a flight to Washington using the false passport, and was charged with using a false instrument and attempting to obtain air services by deception. Section 31 of the Immigration and Asylum Act 1999, which implemented article 31 of the Refugee Convention, provided a defence to the first charge but not the second.
Legal principle
The House of Lords held that the prosecution for attempting to obtain air services by deception was an abuse of process, because it circumvented the protection in article 31, which protects refugees from being penalised for illegal entry or presence, and should be interpreted to cover refugees who use false documents in the course of seeking to reach a country where they intend to claim asylum, provided that they present themselves to the authorities without delay and show good cause. Lord Bingham said that the protection was not lost merely because the refugee had stopped briefly in an intermediate country. The court should not allow the prosecution to evade the statutory defence by charging a different offence.
Related cases on refugee status and asylum
- Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54, [2013] 1 AC 745
- Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412
- HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, [2011] 1 AC 596
- Horvath v Secretary of State for the Home Department [2001] 1 AC 489
- Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, ex p Shah [1999] 2 AC 629
- Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426
- R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958
- RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38, [2013] 1 AC 152
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