By Frances Webber
A recent case reveals that refugees are still being prosecuted and imprisoned for using false documents in their quest for safety, eleven years after the courts declared the practice unlawful.
An Iranian man goes on a demonstration and is beaten up, detained and tortured for sixteen days. Relatives organise his escape, and he is bundled out of Iran, away from his wife and young son, through Turkey to Syria, and on to the UK, where he proffers the false Bulgarian passport he was given by his smuggler, tells the immigration officer his true name and nationality, and asks for asylum. He is immediately detained, and charged with using a false identity document. On the advice of a duty solicitor, he pleads guilty and is sentenced to 12 months' imprisonment.
This scenario was all too common in the 1990s, before a ground-breaking case in 1999, Adimi, established that the Refugee Convention made it unlawful. According to Article 31 of the Convention, states were not to penalise refugees who entered their territory illegally, provided they came 'directly' from the country of persecution, revealed themselves 'promptly' to the authorities of the country of refuge, and had good reason for their illegal entry. In the Adimi case, the judges were horrified that the provisions of Article 31 were not reflected in English criminal law. The court interpreted liberally the requirements that refugees must come 'directly' from countries of persecution, allowing those coming through transit countries to benefit from the provision, and the court ruled that generally speaking, anyone trying to enter on false documents 'as part of a bona fide quest for asylum' was protected from prosecution. Following that case, parliament amended the law to provide a defence for asylum seekers using false documents, while many wrongly convicted asylum seekers had their convictions quashed and compensation of up to £40,000 was awarded.
But the Iranian torture victim (referred to as MV) was prosecuted and convicted in August 2009. No one considered that he might have a defence - neither the immigration officer who interviewed him, the police who arrested him, the Crown Prosecution Service who decided he should be charged, the duty solicitor who represented him, nor the judge who sentenced him.
MV's was one of three test cases in which the Court of Appeal ruled, on 19 October 2010, that there had effectively been a miscarriage of justice rendering guilty pleas a nullity. The other defendants were a Somali woman who had been shot and threatened with rape on the basis of her ethnicity, and another Iranian who was sought by the authorities for his dissident activities. In each case, the court held that the defendants had a good defence, based on their bona fide quest for asylum, and that they could not reasonably have been expected to claim asylum in the countries through which they travelled. (In a fourth case, the judges decided that the defendant, a Somali man, was probably advised that he might have a good defence, and refused to quash his conviction.)
The judges rightly observed that there was no excuse for the lawyers' failure to advise their clients properly. But the court did not consider the culpability of the other agencies and their failure to apply the protection required by the Refugee Convention. They referred to the waste of time and public expense involved in the wrongful convictions, but not to the devastating impact of arrest and imprisonment on people seeking sanctuary from persecution.
 MD and others v R  EWCA Crim 2400, 19 October 2010.  R v Uxbridge Magistrates' Court ex parte Adimi  EWHC Admin 765.