Advocates Library Parliament House Edinburgh EH1 1RF
Everyone knows that it’s against the law to come to the UK if you are not a British or EU citizen and you don’t have Home Office permission to come. There are specific criminal offences when the illegal entrant uses forged, false, or stolen documentation to get into the country. But in the recent decision of the Court of Criminal Appeal, Mateta & Ors  EWCA Crim 1372, reported 2 Cr. App. R. 35, legal practitioners were reminded that when the person concerned is genuinely seeking asylum in the UK, then not only can it be legal to come here illegally, it can be professionally negligent to fail to advise the immigrant of a potential defence.
The Court of Appeal in Mateta was chaired by Leveson LJ who delivered the judgment of the Court, which included Fulford LJ and Spencer J. The appellants had been convicted at the local Crown Courts for Heathrow, Gatwick and Manchester Airports of various illegal entry offences. All the appellants had been advised by their defence lawyers to plead guilty. Their appeals were referred to the Court by the Criminal Cases Review Commission.
The background to the Court of Appeal decision is the UN Convention Relating to the Status of Refugees, done at Geneva in 1951, to which the UK is a State party. Article 31 of the Convention prohibits the Contracting States from imposing penalties on refugees who arrive illegally in flight from persecution in their own country, provided they present themselves without delay to the authorities. Article 31 is given domestic effect by section 31 of the Immigration and Asylum Act 1999. Although the 1999 Act attempted to narrow the effect of Article 31 of the Convention by providing a statutory defence for refugees only to certain specified charges, the House of Lords held in Asfaw  1 AC 1061 that the Act had to be read down so as to comply with the Convention. The result is that there is a statutory defence available to any asylum-seeker to any charge relating to illegal entry to the UK. That includes charges arising out of the use of false, forged, or even stolen, documents, such as passports.
In Mateta, the Court gave advice both as to the proper conduct of a defence under section 31 of the 1999 Act, and as to the scope for appeal against conviction when the accused has been negligently advised by his defence lawyers.
As far as running the statutory defence is concerned, if the illegal immigrant has claimed asylum through the Home Office then it is for the Crown to show beyond all reasonable doubt that he is not a refugee. If however the accused has claimed asylum but been refused, then it is enough for him to show to the criminal court that he is a refugee on the balance of probabilities. A decision of the Home Office or of the specialist immigration tribunal that the accused is a refugee will in practice be determinative of that issue.
If the Crown fails to prove that the accused asylum-seeker is not a refugee, then the accused has to prove four things, all to the civil standard of balance of probabilities. The four things that the accused has to prove are: first, that he came here directly from his own country or he couldn’t reasonably have expected protection under the Refugee Convention in any third country he passed through; second, that he presented himself to the UK authorities without delay unless it was his intention to pass through the UK to his intended country of refuge; third, that he had good cause for being here illegally; and fourth, that he claimed asylum as soon as reasonably practicable after arriving here.
So far as the first requirement, that of direct arrival, is concerned, practitioners need to be aware that the Divisional Court in Adimi  QB 667 recognised that asylum-seekers have an element of choice in selecting the country of refuge, and the Lords in Asfaw recognised that the classic justification for an asylum-seeker passing through third countries to come here was when he or she had family already here. The second question, whether it is reasonable to expect refugee protection in a transit country, can be a highly technical question which only an asylum specialist will recognise. For example, a common transit country is Turkey, but Turkey does not recognise refugees from outside Europe. Another common transit country is Greece, which the Luxembourg and Strasbourg Courts have both found to have such a dysfunctional asylum system that no asylum-seeker is to be criticised for passing through it. The Court in Mateta observed there was “good cause” for illegal entry or presence in the UK if he was reasonably travelling on false papers. The Court in Mateta thought that in the great majority of cases an asylum-seeker will not have claimed asylum as soon as reasonably practicable if he does not present himself in his true identity as soon as he encounters “friendly official hands.” The question of whether a claimant might reasonably delay the making of his asylum claim until he has had an opportunity of taking legal advice here in the UK was not explored, but there are indications in the guidance published by the UNHCR that he might.
By the time the appeals in Mateta were considered, the Home Office had recognised all five of the appellants as refugees. All the appellants had pled guilty to various illegal entry offences without any of them being advised by their defence lawyers of the potential statutory defence. Leveson LJ remarked “it is both surprising and disturbing that neither solicitors nor counsel appear to have been aware of the position in law and we repeat that this situation should not recur in the future.” The Court held that where the accuseds’ advisors had failed to advise them as to the potential availability of the statutory defence, it was then for the appeal Court to determine whether the defence would “quite probably” have succeeded, so that “a clear injustice has been done.” The Court went on to decide those questions in favour of all five appellants, upholding their appeals and quashing their convictions.
The decision in Mateta is worthy of note by Scottish practitioners. Although most asylum-seekers who arrive in Scotland do so by way of the Home Office dispersal scheme, having arrived in the UK through south east England, a small but still significant number arrive through Ireland north and south at Cairnryan or Troon by ferry, or at Prestwick, by air. Practitioners need to be alive to the possibility that their apparently illegal immigrant client may be legal after all and may have a statutory defence under section 31 of the 1999 Act. As Leveson LJ observed, there is simply no excuse now for failure to give such advice when a client is so charged.
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