Asfaw, R v

Factual and Procedural Background

The Appellant, an Ethiopian national, travelled to The City on 14 February 2005 using a false Ethiopian passport supplied by an agent. After passing immigration control she received a false Italian passport, a driving licence in the same name and a ticket for a flight to the United States. At the airline’s check-in desk she presented the Italian passport; the document was recognised as false and the police were alerted.

The Appellant was arrested when attempting to board the aircraft. Through an interpreter she immediately indicated a wish to claim asylum, a claim later accepted when The Secretary of State formally recognised her as a refugee on 11 April 2007.

An indictment contained two counts: (1) using a false instrument with intent, contrary to section 3 of the Forgery and Counterfeiting Act 1981; and (2) attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. Count 1 fell within section 31(3)(a) of the Immigration and Asylum Act 1999; count 2 did not.

At trial before Judge [Lowen] the jury acquitted the Appellant on count 1 after accepting the statutory defence in section 31. Following the judge’s ruling that section 31 did not apply to count 2, the Appellant pleaded guilty to that count and received a nine-month custodial sentence (largely already served).

The Court of Appeal dismissed the conviction appeal but substituted an absolute discharge. It certified a question of general public importance concerning the extent to which article 31 of the 1951 Refugee Convention protects defendants charged with offences outside section 31(3) of the 1999 Act. The present judgment answers that question.

Legal Issues Presented

1. Does article 31 of the 1951 Refugee Convention extend immunity to offences committed while a refugee is attempting to leave, rather than enter or remain in, the country of refuge?
2. Does section 31 of the Immigration and Asylum Act 1999 confer a statutory defence on a refugee charged with an offence not listed in section 31(3) when the facts nevertheless fall within article 31?
3. Was the prosecution of count 2 an abuse of process where the same facts underpin both counts and the first count attracted a successful section 31 defence?

Arguments of the Parties

Appellant's Arguments

• Article 31 is purposive and should apply to refugees “in transit”; the protection is not confined to entry-related offences.
• Section 31 was intended to incorporate article 31 obligations and should be interpreted to include offences factually indistinguishable from those listed.
• Charging count 2, when count 1 already attracted section 31, constituted an abuse of process designed to circumvent the statutory defence.
• Alternatively, a freestanding defence arises directly under article 31 or by legitimate expectation that the United Kingdom would honour its international obligations.

Respondent's Arguments

• Article 31 immunity is expressly limited to penalties “on account of illegal entry or presence” and does not cover offences committed while trying to leave a safe state.
• Section 31 provides a closed list; Parliament deliberately excluded section 1(1) Criminal Attempts Act 1981, so no statutory defence is available for count 2.
• The prosecution of count 2 was lawful; any perceived disparity in section 31’s coverage is a matter for legislative amendment, not judicial expansion.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (Judge [Bingham], Judge [Hope], Judge [Carswell], Judge [Mance])

• Article 31’s wording, negotiating history and structure show it targets penalties for entry or presence, not offences committed when voluntarily departing a safe intermediary state.
• The Convention already contemplates onward movement via article 28 travel documents; extending immunity to departure-related crimes would undermine article 2’s duty on refugees to obey host-state laws.
• Section 31 must be read consistently with article 31. Parliament’s list in section 31(3) was deliberate; attempted deception under the Criminal Attempts Act 1981 is outside the defence.
• Notwithstanding that conclusion, the Crown’s decision to prosecute count 2 after accepting the section 31 defence on identical facts risked unfairness. Proceeding after the jury’s acquittal on count 1 amounted to an abuse of process.

Dissent (Judge [Rodger])

• Article 31 immunity should not be extended beyond its clear text; refugees have no right to select a preferred asylum state by committing further offences in transit.
• The prosecution of count 2 was proper; criticism by the Court of Appeal stemmed from a misreading of article 31.

Holding and Implications

Holding: The appeal is allowed; the conviction on count 2 is quashed on the ground that continuing the prosecution after the section 31 acquittal constituted an abuse of process.

Implications: The decision preserves section 31’s limited statutory scope but signals that prosecuting a non-listed offence based on identical facts can be abusive where a section 31 defence succeeds on a listed offence. It does not create new precedent expanding article 31 or section 31; future reform remains a matter for Parliament.