‘The Duty of the CPS is to the Public’: Article 8 and Prosecuting asad-khanRefugees for False Documents


“This woman, in her short life, has had to endure experiences of the most horrific nature,” is how Lord Kerr described the appellant’s ordeal. However, the Supreme Court dismissed the Somali refugee’s appeal. Giving the main judgmentLord Toulson held that a decision to prosecute an asylum seeker for entering with false documents does not breach ECHR, art 8. A victim of rape and extreme violence, “SXH” belonged to the minority Bajuni community. The Darood clan murdered her father. Her mother died in Al-Shabaab related violence. She escaped from Somalia, spent a year in Yemen and travelled to Holland from where she flew to the UK using a false British convention travel document supplied by an agent. Upon being discovered at UK immigration control she disclosed her true identity and immediately claimed asylum. After her asylum screening interview, an immigration officer informed her that if she returned to Holland she would not be prosecuted for the offence of possessing an identity document relating to someone else, with the intention of using it to establish her identity as that person’s identity, under section 25(1) of the Identity Cards Act 2006. She refused the offer, pressed her asylum claim and was consequently arrested on suspicion of committing the offence.

A conviction under s 25 was punishable with up to ten years’ imprisonment (s 25 was re-enacted by the Identity Documents Act 2010, s 4). UNCHR intervened in these proceedings. The Prosecution of Offences Act 1985 created the CPS which is an autonomous body advising police, immigration and other officials on bringing criminal charges. The DPP heads the CPS and the 1985 Act, s 10 requires her to issue a Code for Crown Prosecutors which obliges prosecutors to apply a two-stage test in deciding whether someone should be prosecuted for an offence. Stage one is connected to considering whether sufficient evidence exists to provide a realistic prospect of conviction. Stage two turns on wide-ranging considerations and involves deciding whether a prosecution would be in the public interest.

The Defence

Contracting states are prohibited, under the Refugee Convention 1951, art 31(1), from penalising refugees fleeing persecution if they promptly submit themselves to the authorities and show good cause for their illegal entry or presence. This defence is replicated in the Immigration and Asylum Act 1999, s 31 and the provision covers the s 25 offence if the refugee comes to the UK “directly from a country where his life or freedom was threatened”.

In R v Asfaw [2008] UKHL 31, recalling the Refugee Convention’s broad humanitarian aims Lord Bingham explained that minority persons fleeing persecution “may have to resort to deceptions of various kinds (possession and use of false papers, forgery, misrepresentation, etc) in order to make good their escape.” His Lordship interpreted “directly” purposively and the defence is not excluded by a temporary stopover in an intermediate country. Initially it was thought that the defence was unavailable because SXH had spent a year in Yemen which is a party to the Refugee Convention. However, because she was granted asylum it was not in the public interest to prosecute her.

The Lower Courts

SXH instituted proceedings against the CPS for damages on numerous grounds including a breach of her art 8 rights. Iriwn J dismissed the claim because presenting an immigration officer with false papers was not an activity that formed part of SXH’s private life, but was self-evidently a matter affecting the business of the state. Art 8 was only engaged where a decision to prosecute meant that prosecutors targeted an activity which could credibly claim to be an exercise of an art 8 right. The Court of Appeal agreed. Pitchford LJ found that s 25 did not interfere with art 8 rights. His Lordship held that it did not impede SXH’s ability to claim asylum, and the possession of false identity documentation with intent to deceive at the point of border control was not an expression of personal autonomy.

The Issue

The appeal raised the issue whether a decision by a public prosecutor to bring criminal proceedings against someone falls potentially within the scope of art 8 in circumstances where reasonable cause exists to believe that the accused person is guilty of the offence and the law connected to the offence is compatible with art 8.

Please see Part Two here.

This post was originally published here.