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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.
Update
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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The Government’s proposed statutory test for UK tax residence, now intended to be effective from 6 April 2013, was first published in a 17 June 2011 consultation document.
The Borders, Citizenship and Immigration Act 2009 (BCIA 2009) received Royal Assent in 2009.
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