Factual and Procedural Background
These appeals concern convictions under section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act), which creates an offence for failing to produce at an asylum interview an immigration document that is valid and satisfactorily establishes identity, nationality, or citizenship.
Two appellants, hereafter referred to as Appellant A and Appellant B, were convicted in the Crown Court at Croydon of this offence. Appellant A was initially sentenced to four months imprisonment, later reduced to one month on appeal. Appellant B was sentenced to nine months imprisonment and recommended for deportation. While Appellant B abandoned an appeal against conviction, an appeal against deportation was dismissed. The conviction was referred to the Court of Appeal by the Criminal Cases Review Commission.
At their asylum screening interviews, both appellants failed to produce genuine immigration documents. Both had entered the United Kingdom using false passports provided by agents, which they did not retain or produce at their interviews. Their trials involved evidence regarding their journeys, the involvement of agents, and their inability to obtain genuine passports in their countries of origin.
Legal Issues Presented
- Whether the statutory defences under section 2(4) and 2(6) of the 2004 Act apply to appellants who entered the United Kingdom using false immigration documents and failed to produce them at asylum interviews.
- Whether the jury was correctly directed on the availability and scope of the defence under section 2(4)(c) relating to a "reasonable excuse" for not possessing a genuine immigration document.
- The proper interpretation of section 2(4)(e), which provides a defence for those who travelled to the United Kingdom without possession of any immigration document at any stage of the journey.
Arguments of the Parties
Appellants' Arguments
- The defence under section 2(6)(b) and section 2(4)(c) should extend to individuals who entered using false documents but had a reasonable excuse for not producing genuine documents.
- The defence under section 2(4)(e) applies to those who travelled without possessing any genuine immigration document at any stage, thus covering appellants who used false documents and did not retain them.
- The jury was misdirected by not considering whether the appellants had reasonable excuses for failing to produce the false documents used to gain entry.
Crown's Arguments
- The defence under section 2(4)(e) should not apply to appellants who entered using false documents but failed to produce them, as this would defeat the legislative purpose.
- Section 2(4)(d) requires that a person using a false document must produce it to rely on the defence; allowing reliance on section 2(4)(e) in such cases would render section 2(4)(d) meaningless.
- The statutory scheme is designed to maintain control over entry, discouraging disposal or destruction of documents used to gain entry, whether genuine or false.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Uxbridge Magistrates' Court, ex parte Adimi [2001] QB 667 |
Article 31(1) of the 1951 Refugee Convention provides immunity for refugees who enter illegally but present themselves promptly and show good cause. |
The court accepted that the offence under section 2 falls within the ambit of Article 31 and that Article 31 should be generously interpreted. |
| R (Pepushi) The Crown Prosecution Service [2004] EWHC 798 (Admin) |
Section 31 of the Immigration and Asylum Act 1999 defines the scope of defences related to possession or use of false documents. |
The court held that the statutory defence under section 31 is narrower than Article 31 but binding in UK law. |
| R v Navabi and Embaye [2005] EWCA Crim 2865 |
Section 2 of the 2004 Act addresses asylum seekers without documentation and aims to prevent wilful disposal of documents. |
Confirmed the legislative intent to create a new offence targeting disposal of documents and emphasized the importance of retaining documents for immigration control. |
| Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin) |
Clarifies the availability of statutory defences under section 2(4)(c) and 2(6)(b) when no genuine document exists and the effect of using false documents. |
The Divisional Court allowed the appeal, holding that a reasonable excuse for not producing a genuine document applies even if entry was by false documents, provided the genuine document was impossible to obtain. |
Court's Reasoning and Analysis
The court examined the statutory framework of section 2 of the 2004 Act, which creates an offence for failing to produce an immigration document at asylum interviews, but also provides specific defences. The defences include proving a reasonable excuse for not possessing a genuine document (section 2(4)(c)), producing a false document used for the journey (section 2(4)(d)), or proving that the person travelled without any immigration document at any stage (section 2(4)(e)).
The court reviewed the interpretation of these defences, particularly in light of the Divisional Court's decision in Thet. It accepted that the defence under section 2(4)(c) can extend to individuals who entered using false documents if they have a reasonable excuse for not producing genuine documents, such as impossibility of obtaining them in their country of origin.
However, the court rejected the appellants' broader interpretation of section 2(4)(e), concluding that it does not provide a defence for those who used false documents and then failed to produce them. Accepting such an interpretation would undermine the purpose of the legislation and render the defence under section 2(4)(d) meaningless.
The court emphasized the legislative aim to balance the need for immigration control with the realities faced by genuine refugees, including those unable to obtain genuine documents. The statutory defences reflect this balance by allowing reasonable excuses but maintaining control against wilful destruction or disposal of documents.
Finally, the court found that the jury had not been properly directed on the availability of the defence under section 2(4)(c) and section 2(6)(b), and that the appellants' excuses could have been considered reasonable by a properly instructed jury.
Holding and Implications
The court held that the appeals are allowed on the basis that the jury was not properly directed regarding the defence under section 2(4)(c) and section 2(6)(b) relating to reasonable excuse for not producing genuine documents.
The appeal with respect to section 2(4)(e) fails. This subsection does not provide a defence to appellants who entered using false documents and failed to produce them.
The direct effect is that the convictions must be reconsidered in light of the correct legal directions on reasonable excuse. However, at this late stage, the court declined to order retrials. No new legal precedent was established beyond clarifying the interpretation of statutory defences under the 2004 Act.