This practice note includes advice for
criminal practitioners on statutory defences available to asylum
seekers who may be charged with offences relating to:
the possession or control of false documents, or
- the failure to have an immigration document at a leave or asylum interview.
1.1 Who should read this practice note?
This practice note is for criminal defence practitioners representing clients who have been charged, or may be charged, with document offences relating to their entry into the UK or their failure to have with them an immigration document at a leave or asylum interview.
1.2 What is the issue?
The purpose of this guidance is to alert criminal practitioners to the statutory defences available to asylum seekers who may be charged with offences relating to:
- the possession or control of false documents, or
- the failure to have an immigration document at a leave or asylum interview.
Recent cases have highlighted the need for criminal practitioners to be aware of the availability of the defences set out below when representing defendants charged with document offences.
The Criminal Cases Review Commission (CCRC) has since 2012 referred over 30 separate cases to the relevant appeal court including eight to the Court of Appeal (Criminal Division). The CCRC refers to a common chronology, that the defendant:
- arrived in (or sought to transit through) the UK and claimed asylum or refugee status after being stopped by immigration official
- was charged with an offence for arriving without a valid passport
- was advised that they did not have a defence, and
- pleaded guilty, subsequently receiving a custodial sentence.
The CCRC has referred these cases on the basis that the appeal court concerned would allow the guilty plea to be vacated because the defendants were not notified of, nor afforded the opportunity, to raise any defence either under section 31 of the Immigration and Asylum Act 1999 or under section 2 of the Asylum and Immigration Act 2004.
2 Immigration and Asylum Act 1999: section 31 defence
Section 31 of the Immigration and Asylum Act 1999 (IAA) brought into domestic legislation the protection provided in article 31 in the Refugee Convention 1951 (Refugee Convention). This covers the following criminal offences, as outlined in the Home Office guidance (see section 4 below for further information):
Immigration Act 1971
Section 24A: obtaining leave to enter or remain in the UK by deception, or postponing any enforcement action by deception.
Section 26(1)(d): alteration of a genuine document (work permit / passport) or possession of a false document.
Forgery and Counterfeiting Act 1981
Part 1 contains forgery and related offences.
Identity Card Act 2006
(if the offence was committed before 21 January 2011)
Identity Documents Act 2010
(if the offence was committed on or after 21 January 2011)
Section 25(1) Possession or control of false identity documents with improper intention.
Section 25(5) Possession or control of false identity documents without a reasonable excuse.
Section 4(1) Possession or control of false identity documents with improper intention
Section 6(1) Possession or control of false identity documents without a reasonable excuse.
Section 31 IAA provides that it is a defence for a refugee, charged with any offence listed above, if they can demonstrate that they have:
- come to the UK directly from a country where their life or freedom was threatened
- presented themselves to the authorities in the UK without delay
- showed good cause for their illegal entry or presence, and
- made a claim for asylum as soon as was reasonably practicable after their arrival in the UK.
If someone wishing to seek asylum in the UK passes through or stops in another country (third country) en route, they must demonstrate that that they could not reasonably have been expected to be given the same protection in that other country pursuant to the Refugee Convention. The Court of Appeal has found that stays as long as three months in countries where a refugee could not reasonably be expected to seek asylum do not necessarily exclude reliance on the section 31 IAA defence (see Afshar, Ghavami and Bashir in the Mateta judgment referred to below).
Even where the third country is a signatory to the Refugee Convention, this is not necessarily fatal to the statutory defence. Short stopovers in 'safe' countries have been accepted by the Court of Appeal as falling within the description of “in transit” for the purposes of the 'come directly' provision in section 31. Examples include:
A short stopover within the UK has also been found to be in transit for the purposes of section 31 where the defendant was in the hands of an agent organising their journey and/or had been advised to seek asylum elsewhere and always intended to do so (Sadeghi  EWCA Crim 2933 on the authority of Asfaw).
The courts will consider the individual circumstances of the case, such as the length of the stay and the reason for delay in coming to the UK. The fact that the defendant has not made an application for asylum immediately on entry to the UK will not necessarily mean a section 31 IAA defence is not available to them. A stay in the UK of 13 days has been found by the Court of Appeal to satisfy the requirements of section 31 for the purposes of making a clam for asylum as soon as reasonably practicable (Mulugeta v R  EWCA Crim 6).
You should be aware of the cases of Mohamed v R  EWCA Crim 2400 and Mateta v R EWCA Crim 1372 where the Court of Appeal analysed the scope of the section 31 defence, quashing in total eight convictions on the basis that appellants were not advised about the section 31 defence. The court held that, on balance, had the defence been raised, it would quite probably have succeeded.
When advising clients for whom the section 31 defence may be relevant, you must properly explain the parameters of the defence and record the instructions and the advice given as emphasised in both Mohamed and Mateta. In Al Shabani (2015 unreported) Lord Thomas CJ made it clear that when advice is given but the parameters of a prospective defence are not explained to a defendant and an appeal is subsequently successful practitioners should be reported to the SRA.
3 Asylum and Immigration Act 2004: section 2 defence
Criminal defence practitioners should also be aware of the defence available to those charged (at a leave or asylum interview) with entering the UK without a valid passport or immigration document, pursuant to section 2(1) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ('AITCA').
Section 2(4) AITCA provides a defence if a person can demonstrate any of the following:
- they themselves are an EEA national
- are a family member of an EEA national
- have a reasonable excuse for not being in possession of a valid passport/travel document
- produce a false immigration document and prove that document was used as an immigration document for all purposes in connection with their journey to the UK, or
- can prove that they travelled to the UK without, at any stage, having possession of an immigration document.
3.2 Producing identity document within three days of interview
No offence is committed if the person's interview takes place after they have entered the UK (with leave) and they provide an immigration officer or the Secretary of State for the Home Department with a conforming immigration document1 within three days beginning with the date of the interview2.This defence is available where the defendant is interviewed after entering the UK (with leave)3 .
3.3 Reasonable excuse for not having identity document
It is a defence for a person to prove that he has a 'reasonable excuse' for not being in possession of a conforming immigration document or has a 'false immigration document'4 . This defence is not available where the defendant is interviewed after entering the UK (with leave)5.
Deliberate destruction or disposal of the document is not a reasonable excuse alone, unless it was for a 'reasonable cause' or beyond the control of the person. Reasonable cause does not include for increasing the chances of success of a claim or application or for the purpose of complying with instructions of an agent unless it is unreasonable to expect non-compliance6 .
There is no statutory definition of what constitutes a 'reasonable excuse'; this will be a matter for the court to decide. It is not a requirement for a person to have refugee status to benefit from this defence. If, however, someone has fled from persecution this may give rise to a reasonable excuse on the basis that they could not obtain or use their own genuine passport to leave their country of origin for fear of bringing themselves to the adverse attention of the authorities.
If a person has left their own country using their genuine passport and subsequently disposed of that passport to an agent, you should give consideration to section 2(7) of AITCA (ie the deliberate destruction or disposal of the document is not a reasonable excuse unless it can be shown that it was for a reasonable cause). Complying with the agent’s advice or instructions will not amount to a reasonable cause unless it can be shown in the circumstances of the case it is unreasonable to expect non-compliance with those instructions/ advice.
Factors to consider when making an assessment as to reasonable cause include:
- the inferior position of the person travelling with the agent
- the fact that they may have no alternative to seek the assistance, and
- any threats made by the agent.
3.4 Defence to produce false document to get to the UK
Section 2(4)(d) AITCA provides a defence in the event a person produces a false immigration document if they prove that they used it as an immigration document for all purposes in connection with their journey to the UK.
3.5 Defence to prove travel without immigration document
If a person proves that they travelled to the UK without having an immigration document at any stage they may have a defence under s.2(4)(e) AITCA.
3.6 Advising on asylum and immigration issues
Criminal defence practitioners may be unqualified to provide advice in relation to immigration law and procedure, such as the making of asylum or visa applications. Where necessary, you should refer your client to an SRA-regulated immigration practitioner so that they can be given specific advice on any issues bearing upon their asylum claim or immigration law more generally.
In particular, immigration advice may focus upon:-
- whether there might be any lawful basis on which the person might seek to regularise their stay or obtain permission to remain in the UK;
- whether removal would be in breach of any policy of the secretary of state, or of the UK's obligations under international conventions, in particular the European Convention on Human Rights; and
- whether, if the client accepted a caution for a document offence, this would impact negatively upon any future application for leave to enter the UK.
4 Further information
4.2 Other resources
The Law Society kindly acknowledges the help of Celia Sohpal and Josie DiCesare (CCRC) in developing this practice note. The Law Society would also like thank Ben Douglas-Jones (5 Paper Buildings) of counsel for his assistance in reviewing and contributing to the practice note.
1 See Khalif and Isleworth Crown Court  EQHC 917 (Admin) at § 4. This is a term we have used to assist practitioners.
2 see s.2(3) AITCA.
3 see s.2(6) AITCA.
4 see s.2(4)(c) and s.2(4)(d) AITCA, Khalif and Isleworth Crown Court  EQHC 917 (Admin).
5 See s.2(6) AITCA.
6 s.2(7) AITCA.