UK: Prosecuted For Being A Refugee

Last Updated: 10 January 2012
Article by Kat Hacker

You're fleeing your country, being persecuted for your political beliefs. You manage to make it to a place of safety where the government is a firm advocator of human rights. You believe that you will be treated with dignity and respect. Instead you are arrested at the port you entered and charged with having no documentation. This situation was not unusual in Europe in the 1930's; sadly it has become normal in the United Kingdom since 2004.

Under Section 2 of the Immigration and Asylum Act (Treatment of Claimants) 2004, it is an offence to enter the United Kingdom without official documentation that is in force and that satisfies the UKBA of your identity and nationality or citizenship. For many asylum seekers, perhaps the last item you may think to flee your country with is your passport or national identity card; this may identify you to the authorities that you are fleeing.

Our case

We acted for a client who, having fled Syria, stayed in Turkey for 11 months, (though realising that as a prominent Kurd he was not safe there either), until with the help of an agent he fled to the United Kingdom. The agent, as they always do, handled the passport and papers. Having landed at Heathrow, the client was left airside and told to wait for the agent to come back. He did not return.

The client was questioned by the immigration officials. From the outset it was clear that the client was going to be making a claim for asylum. A journalist of Kurdish ethnicity, critical of the Syrian regime, it was clear that at the very least he had an arguable claim for asylum. In collaboration with, and upon advice from the UKBA, the CPS charged the client with an offence under S2 of the 2004 Act. He was remanded in custody.

Our client, in common with most in his situation, also faced considerable pressure to plead guilty. This is because unless he pleads guilty, he is very likely to spend longer on remand before trial than the sentence imposed if he is found guilty. Thus if the matter proceeds to a full trial, whatever the verdict, the client will be released immediately.

Section 31 of the Immigration Act 1999 provides a defence for asylum applicants in the above scenario. This provides that, if the asylum-seeker has (1) come directly from a country where his life or freedom is threatened (2) presented himself to the authorities without delay, (3) shown good cause for his illegal entry and presence in the United Kingdom and (4) made a claim for asylum as soon as reasonably practical – the defence to the charge is made out. It has been held that an applicant comes 'directly' to the UK for these purposes, even if he passes through a third country on route, if he can show a good reason for not claiming asylum in that country.

However the CPS have refused to drop the prosecution, and further refused to stay the prosecution's case pending the outcome of the client's asylum application. This appears to be a further waste of resources, time and money for both the CPS and the client's criminal representatives - should the client's asylum application be successful, then their own guidelines state that it is very doubtful that it is in the public interest to prosecute the client. (Unlike the Crown Court, magistrates do not have the power to dismiss a prosecution as oppressive). Despite several attempts at negotiation and threats of Judicial Review, the CPS refused to concede and continued with the prosecution.

A Judicial Review was lodged, and a temporary stay of the prosecution was granted, pending a decision as to whether the judicial review should have permission to proceed.


Since writing the first draft of this article, the application for judicial review was refused permission at an oral hearing, though it was conceded that if the client had come 'directly' from his country of origin then no prosecution should have been pursued.

As noted above, the word comes 'directly' has been held to apply where there is a good reason for not claiming asylum in a third country on route. However, Collins J held that this amounted to a defence which should be raised in the Criminal Courts and not be dealt with by way of judicial review.

It was therefore the judgement of Collins J that the client had an alternative remedy: i.e. that he could argue his point in the Magistrates' Courts. With respect to the learned judge it is hard to follow the logic of this position, as the judicial review claim was that his prosecution was oppressive, especially as it would inevitably result in substantial time spent on remand. An acquittal would not in itself resolve that issue justly.

The client has subsequently been granted full refugee status, but the prosecution continues. Does treating refugees in this manner make our borders more secure?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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