R v Asfaw

on appeal from: [2006] EWCA Crim 707

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R v Asfaw (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

Appellate Committee

Lord Bingham of Cornhill

Counsel

Appellants:

Respondents:

Edward Fitzgerald QC	Clare Montgomery QC
Raza Husain	Julian Knowles
Richard Thomas	(Instructed by Crown Prosecution Service)

(Instructed by Moss & Co)

Intervener (UNHCR) Michael Fordham QC

Shaheed Fatima

(Instructed by Baker & McKenzie LLP)

Hearing dates:

18, 19 & 20 FEBRUARY 2008

ON

WEDNESDAY 21 MAY 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R v Asfaw (Appellant) (On Appeal from the Court of Appeal

(Criminal Division)

[2008] UKHL 31

LORD BINGHAM OF CORNHILL

My Lords,

1. The Criminal Division of the Court of Appeal (Lord Phillips of Worth Matravers CJ, McCombe and Gross JJ: [2006] EWCA Crim 707) certified the following point of law of general public importance as involved in its decision now under appeal:

“If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 United Nations Convention Relating to the Status of Refugees?”

Differently expressed, the question is whether, to the extent that the protection given to a defendant by section 31(3) of the 1999 Act does not match that which the United Kingdom is bound in international law to give by article 31 of the Refugee Convention, our domestic law gives a defendant any remedy. The formulation of the question clearly assumes that the offence charged against the defendant is not within the scope of section 31(3) of the 1999 Act but is within the scope of article 31 of the Convention.

2. According to her evidence, the appellant is an Ethiopian national who had been imprisoned, tortured and raped in Ethiopia on account of her alleged support for student activism. Her father also was persecuted and died in police custody. She decided to leave Ethiopia and travel to the United States to claim asylum. With the help of an agent she left Ethiopia by air, travelling on a false Ethiopian passport. They stopped in an unknown Middle Eastern country and remained in the airport for about three hours. They arrived in the UK on 14 February 2005 at Heathrow Airport and passed through immigration control, with the agent presenting the passport on her behalf. The agent then left her in the airport for about an hour, after which he returned and gave her a false Italian passport, in the name of Hanams Gebrele, a false driving licence in the same name and a ticket to Washington DC. He then left.

3. It is agreed that on 14 February 2005 the appellant (then aged 28) checked in for a Virgin Atlantic flight from Heathrow to Washington. She presented the false Italian passport. She said she was Ethiopian. The official on the desk (Mohammed Hussan) recognised the passport as false and informed the police, but said nothing to the appellant and allowed her to check in. When she attempted to board the aircraft at the departure gate she was stopped. Her passport was examined and found to be false. She was arrested and taken to the police station. There she was questioned but gave no answers. Through an interpreter she told her legal representative at the police station that she wished to claim asylum and he gave evidence that he communicated this claim to the police at 5.00 pm on the day of her arrival. On 11 April 2007 the appellant was formally recognised by the Home Secretary as a refugee.

4. The appellant was charged with two offences on which she was later indicted and stood trial at Isleworth Crown Court before His Honour Judge Lowen and a jury. Count 1 charged her with using a false instrument with intent contrary to section 3 of the Forgery and Counterfeiting Act 1981, the particulars being that on 14 February 2005 she used an Italian passport which she knew to be false, with the intention of inducing another (identified as Mohammed Hussan, the official on the check-in desk) to accept it as genuine. In count 2 the appellant was charged with attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. The particulars were that she had dishonestly attempted to obtain air transport services from Virgin Atlantic by falsely representing that she was authorised to use the Italian passport in the name of Hana (sic) Gebrele. Both these counts related to the appellant’s attempt to leave this country on a Virgin Atlantic flight to Washington, and both, it seems, were based on presentation of the false Italian passport at the check-in desk.

5. The appellant pleaded not guilty to count 1 and relied on the

defence provided by section 31 of the Act. Directing the jury, His
Honour Judge Lowen, said:

“There is available a defence to such a charge [as count 1] which the law has provided for persons who genuinely seek asylum. Because the law recognises that refugees may inevitably have to commit such offences as a means of seeking safe refuge. It would, you may think, be quite unjust for genuine refugees to be faced with the prospect of inevitable conviction of crime in relation to the process by which they seek to enter a safe haven. And that is why the law recognises that common sense proposition and that is why the law provides that if a person, on the balance of probability, fulfils the criteria provided for in law, then the law says they have a complete defence to a charge of this kind.”

In the light of the evidence at trial, prosecuting counsel accepted that the appellant was a refugee, but disputed that the other requirements of section 31 were met. The jury, however, acquitted, and must therefore have found that they were.

6. Before the trial began, counsel for the appellant (Mr Richard Thomas) resisted further prosecution of count 2 on the ground that the offence charged, although not within section 31 of the Act, was within article 31 of the Convention. The judge rejected the submission. He ruled:

“The prosecution have decided to proceed in this case and take the view that those offences, catered for in section 31, are all offences which a refugee may commit involving the process of entering a safe haven. Once within the United Kingdom a person who then goes on to commit a further offence should not have a defence available to protect him or her from prosecution and conviction. That is the justification for the prosecution proceeding in this case. The logical distinction is clear.”

He went on to refer to

“the real distinction between offences which are necessary and reasonable in the quest for asylum on the one hand and those which arise as a matter of choice or convenience

and it is into the latter category that the prosecution put this offence of obtaining or attempting to obtain services by deception.”

In response to this ruling the appellant pleaded guilty. After her acquittal on count 1, the judge sentenced the appellant to nine months’ imprisonment (most of which she had already served) on count 2. He said that offences of this kind undermined the whole system of immigration control and were so prevalent as to call for deterrent sentences. It is not clear what factual (as opposed to legal) difference the judge saw between the two counts.

7. The appellant appealed against conviction and sentence on count 2. In the Court of Appeal prosecuting counsel did not question the correctness of the appellant’s acquittal on count 1, and implicitly accepted its correctness. He accepted that on the facts of this case article 31 required that the appellant should have a defence, even if charged with attempting to obtain the service of the airline by deception (see [2006] EWCA Crim 707, para 21). He accepted that both article 31 and section 31 could apply to an asylum seeker seeking to use this country as a transit post in a journey to a preferred place of refuge (para 21). He accepted that the appellant’s attempt to fly to Washington in order to seek asylum should attract no punishment if the UK were fully to comply with article 31 (para 26). He accepted that he could not support the reasoning which led the judge to impose the custodial sentence he did (para 27). Thus the issue in the Court of Appeal was a narrow one. Counsel for the appellant submitted that it was improper for a different charge, not falling within section 31, to be brought in respect of precisely the same facts (para 20). The Crown’s reply was that section 31 listed the offences to which the statutory defence should apply, that the list did not include attempted deception, and the duty of the Crown Prosecution Service was to apply the law (para 21). The court expressed its concern about some aspects of the case. It considered that if the second count had been added in the interests of immigration control, in order to prevent the asylum seeker from invoking the defence that section 31 would otherwise provide, there would be strong grounds for contending that the practice would be an abuse of process (para 24). The court dismissed the appellant’s appeal against conviction, but allowed her appeal against sentence, quashed the sentence of imprisonment and ordered that the appellant should be absolutely discharged. The certified question set out in para 1 above relates, of course, to the legal issue which then fell for decision. In the House, however, the respondent contended, for the first time, that the offences allegedly committed by the appellant fell outside both article 31 of the Convention and section 31 of the Act because they were committed in the course of trying to leave the country and not in the course of entering it or as a result of the appellant’s illegal presence here. Thus the central issue now is whether these offences, or either of them, fell within the scope, first, of article 31 and, secondly, of section 31.

Article 31

8. During the 1920s and 1930s the League of Nations sought to address the problems caused internationally by refugees from Russia, Armenia, Germany and elsewhere. The ending of the Second World War gave the problem a new urgency and importance. Thus the Constitution of the International Refugee Organization was adopted in 1946, the Statute of the Office of the United Nations High Commissioner for Refugees was adopted in 1950 and in 1950-1951 the 1951 Refugee Convention was negotiated.

9. The Refugee Convention had three broad humanitarian aims. The first was to ensure that states acceding to the Convention would afford a safe refuge to those genuinely fleeing from their home countries to escape persecution or threatened persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion. Such refugees were not to be returned to their home countries. The second aim was to ensure reasonable treatment of refugees in their countries of refuge, an aim to which most of the articles in the Convention were addressed. The third aim, broadly expressed, was to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution. It was recognised in 1950, and has since become even clearer, that those fleeing from persecution or threatened persecution in countries where persecution of minorities is practised 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.

10. Effect was given to this third aim in article 31, which (referring to the very familiar definition of “refugee” in article 1), provides:

“REFUGEES UNLAWFULLY IN THE COUNTRY OF
REFUGE

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”

The respondent to this appeal submits that this article should be interpreted as meaning exactly what it says, and attaches particular importance to the words “on account of their illegal entry or presence” and “good cause for their illegal entry or presence”. These words, it is said, show that the immunity of a refugee is limited to offences of entering and being illegally in a country, thus excluding offences committed when leaving an intermediate country in order to seek asylum elsewhere.

11. It is of course true that in construing any document the literal meaning of the words used must be the starting point. But the words must be construed in context, and an instrument such as the Refugee Convention must be given a purposive construction consistent with its humanitarian aims. The Convention was negotiated against the background of then recent events, particularly in Europe. Hence the reference in the original definition of “refugee” in article 1 A(2) to “As a result of events occurring before 1 January 1951” and hence the original option for acceding states to adopt an interpretation of that expression as meaning “events occurring in Europe before 1 January 1951”. Consideration of the travaux préparatoires of the Convention shows that the focus of discussion was on clandestine crossing of land frontiers. There was little or no discussion of air transportation, doubtless because air transport had not become a means of escape used by any considerable number of refugees, and there was accordingly no consideration of the position of refugees changing planes in the course of escape to a country of intended asylum. The travaux show that what became article 31 went through a number of drafts and the words “coming directly from a territory where their life or freedom was threatened in the sense of article 1” did not appear in the original texts. They were inserted at the instance of the French delegate (M Rochefort), who was concerned that there were large numbers of refugees living in countries bordering on France where their lives were not threatened, and whom, if they crossed into France, the French government would wish to penalise and return: see Goodwin-Gill, “Article 31 of the 1951 Convention Relating to the Status of Refugees: non-penalisation, detention, and protection” in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), p 192. There was resistance to the notion that a refugee who had settled temporarily in one country should be free to enter another for reasons of mere personal convenience: Weis, The Refugee Convention 1951: Travaux Préparatoires, p 298. The UK representative favoured a certain amount of flexibility in the case of refugees coming through intermediary countries: ibid, p 301. The “good cause” requirement was also, it seems, intended to exclude refugees who wished to change their country of asylum for purely personal reasons from the immunity provided by article 31: Grahl- Madsen, Commentary on the Refugee Convention 1951 (1962-63), para (8).

12. With the passage of time and the growth of air transport the application of article 31 to refugees in transit came to attract attention. In The Status of Refugees in International Law, vol II (1972), pp 206- 207, Grahl-Madsen distinguished between different cases, the first being “A refugee who only passes through the first country of refuge, without any delay or with only a minimum of delay”. Of this class of case he wrote:

“With respect to the first category, it is important to note that the practice of States is more lenient than would be expected on the background of Mr Rochefort’s above- quoted statements. Thus, refugees who pass through Austria into the Federal Republic of Germany are not penalized in the latter country on account of their illegal entry. In Belgium it is an established practice to consider a refugee as ‘coming directly’ if he arrives in Belgium within a fortnight after his departure from his country of origin. And in France each case is considered on its merits, emphasis apparently being placed on the final proviso of Article 31(1), that is to say: whether the refugee can ‘show good cause for [his] illegal entry or presence’. It seems to be the opinion of the Office of the United Nations High Commissioner for Refugees that the term ‘coming directly’ is to be interpreted in such a way that it does not impose an obligation solely on countries adjacent to countries of persecution, or — more precisely — that any person who had no factual residence in an intermediary country should be considered coming directly from a country of persecution. On this basis it appears justified to conclude that a refugee belonging to the first category may normally claim the benefit of Article 31 in the country where he finally arrives.”

He had addressed the meaning of “country of refuge” in volume I of the same work (1966), in which (para 108, p 301) he had written:

“As we see it, the ‘country of refuge’ (pays d’accueil), being the opposite of a ‘country of persecution’, corresponds on the whole with the territory where Article 31 (1) of the Convention may be invoked. In other words, the ‘country of refuge’ will normally be the country into which a refugee is ‘coming directly from a territory where [his] life or freedom was threatened in the sense of article 1’ (or in which he becomes a refugee sur place).

However, in practice the provisions of Article 31 are given a liberal interpretation, so that a person may actually travel through several countries until he eventually applies for asylum and recognition as a refugee in a country more or less of his choice, and may still get the benefit of those provisions. The implication is that if the refugee had ended his journey in any of the transit countries, he would have been able to invoke Article 31 (1) there, too.”

13. The opinion of the Office of the UNHCR to which Grahl-Madsen refers in the first of these quoted extracts is a matter of some significance, since by article 35 of the Convention member states undertake to co-operate with the Office in the exercise of its functions, and are bound to facilitate its duty of supervising the application of the provisions of the Convention. In 1992 the UNHCR in its Handbook on Procedures and Criteria for determining Refugee Status published guidelines with regard to the detention of asylum seekers, quoted by Simon Brown LJ in R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667, 678. These guidelines, re-published without alteration of this provision in February 1999, included the following passage:

“The expression ‘coming directly’ in Article 31(1), covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept ‘coming directly’ and each case must be judged on its merits.”

14. The judgment of the Queen’s Bench Divisional Court (Simon Brown LJ and Newman J) in Adimi related to three applicants for judicial review, two of whom were in transit through this country and one of whom (Mr Sorani) was in a factual position legally indistinguishable from that of the appellant. The court noted (pp 676, 677) that until the point was raised on behalf of Mr Adimi (p 674) the immunity required by article 31 had never been the subject of consideration by the Secretary of State for the Home Department, the Director of Public Prosecutions, the Crown Prosecution Service, the police or, it seems, anyone else. But that group of cases called for it to be considered, with reference in two of the cases to refugees, or potential refugees, in transit.

15. In his leading judgment Simon Brown LJ first considered the requirement that, to qualify for immunity under article 31, a person must be “coming directly” from the country of persecution. The Secretary of State and the Director contended that article 31 allowed the refugee no element of choice as to where he should claim asylum. Having considered the conclusions of the UNHCR’s executive committee and the academic literature, Simon Brown LJ rejected that contention. He held (p 678) that some element of choice was open to refugees as to where they might properly claim asylum and concluded that any merely short-term stopover en route to such intended sanctuary could not deprive the refugee of the protection of article 31. He went on to say that the main touchstones by which exclusion from protection should be judged were the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found there protection de jure or de facto from the persecution which the refugee was seeking to escape. These latter considerations have been said (Hathaway, The Rights of Refugees under International Law, (2005), p 399, f.n. 539) to be more properly relevant to “good cause”, but they are clearly relevant to the applicability of article 31.

16. Simon Brown LJ then considered (p 679) the requirement that refugees should present themselves “without delay”. The respondents contended that Mr Adimi fell outside article 31 because he had not claimed asylum on reaching passport control. This argument was rejected (p 679): if Mr Adimi’s intention was to claim asylum within a short time of his arrival even if he had successfully secured entry on false documents, he was not in breach of this condition.

17. The “good cause” condition was agreed by all counsel (p 679) to

be satisfied by a genuine refugee showing that he was reasonably
travelling on false papers.

18. Simon Brown LJ considered the two applicants who had been in transit at p 687 of his judgment:

“I propose to deal with these two applicants together since both were arrested as transit passengers embarking for Canada and, in my judgment, no material distinction can be drawn between them. I use the term transit passenger here not in a technical sense to mean only passengers who throughout have remained airside of United Kingdom immigration control (even then, if discovered with false documents, they will be brought landside for that reason) but rather to mean passengers who have been in the United Kingdom for a limited time only and are on the way to seek asylum elsewhere. I understand the respondents to argue that such passengers can never be entitled to article 31 immunity because, having been apprehended whilst attempting to leave the United Kingdom rather than enter it, it follows that they never intended to present themselves, least of all without delay, to the immigration authorities here. Mr Kovats further submits that, having chosen not to claim asylum here despite the United Kingdom clearly being a safe country for the purpose, these passengers will in addition be unable to satisfy the coming directly condition.

Neither of these arguments are in my judgment
sustainable. If I am right in saying that refugees are

ordinarily entitled to choose where to claim asylum, and that a short term stopover en route in a country where the traveller’s status is in no way regularised will not break the requisite directness of flight, then it must follow that these applicants would have been entitled to the benefit of article 31 had they reached Canada and made their asylum claims there. If article 31 would have availed them in Canada, then logically its protection cannot be denied to them here merely because they have been apprehended en route.”

Newman J (p 688) agreed with Simon Brown LJ’s interpretation of the scope of article 31(1) of the Convention. Neither the Secretary of State nor the Director argued that article 31 was inapplicable to offences committed by a refugee seeking to leave the country as distinct from entering or being here.

19. On 8-9 November 2001 an expert round-table conference was held in Geneva, attended by representatives of different countries and disciplines, including six governmental members, to discuss article 31. For this Professor Goodwin-Gill wrote the paper cited in para 11 above, in which he described Simon Brown LJ’s judgment in Adimi as (p 203) “one of the most thorough examinations of the scope of Article 31 and the protection due”. He drew on an extensive survey of state practice (p 206). On p 216 he opined:

“Although States may and do agree on the allocation of responsibility to determine claims, at the present stage of legal development, no duty is imposed on the asylum seeker travelling irregularly or with false travel documents to lodge an asylum application at any particular stage of the flight from danger.”

He concluded (p 218) that

“Refugees are not required to have come directly from their country of origin. Article 31 was intended to apply, and has been interpreted to apply, to persons who have briefly transited other countries, who are unable to find protection in the first country or countries to which they

flee, or who have ‘good cause’ for not applying in such
country or countries.”

In its “Summary of Conclusions” (Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Feller, Türk and Nicholson (eds), 3.2, p 255) the expert round-table listed a number of specific considerations which included the following:

“10.

In relation to Article 31(1):

(a) Article 31(1) requires that refugees shall not be penalized solely by reason of unlawful entry or because, being in need of refuge and protection, they remain illegally in a country. (b) Refugees are not required to have come directly from territories where their life or freedom was threatened. (c) Article 31(1) was intended to apply, and has been interpreted to apply, to persons who have briefly transited other countries or who are unable to find effective protection in the first country or countries to which they flee. The drafters only intended that immunity from penalty should not apply to refugees who found asylum, or who were settled, temporarily or permanently, in another country. The mere fact of UNHCR being operational in a certain country should not be used as a decisive argument for the availability of effective protection in that country.”

20. In his recent work The Rights of Refugees under International Law (2005), Professor Hathaway comments adversely (p 372, f.n. 412) on the UK’s prosecution of asylum-seekers transiting through the country en route to North America, and expresses the opinion (p 406) that international law provides no sanction for the UK’s policy of pursuing criminal charges against refugees found to have used false papers to pass through its territory. He quotes with implicit approval (p 406, f.n. 566) Simon Brown LJ’s observation in Adimi (pp 684-685) that the “respondents’ argument provides no justification whatever for prosecuting refugees in transit”.

21. In a memorandum submitted to the House of Commons Select Committee dated 1 December 2005 the UNHCR submitted (para 13):

“In granting this protection from penalization, Article 31(1) recognises, inter alia, that departure and entry into host countries by irregular means may be a method used by refugees fleeing persecution to reach safety as refugees are often forced to flee their own country in fear of their lives. In UNHCR’s view, a purposive interpretation of Article 31 will also include situations where a person seeking international protection arrives in the UK by irregular means without a valid travel document; whether with a false passport, a passport he/she is not entitled to or without a passport. Refugees and asylum seekers in transit to a final destination country could equally benefit from Article 31 of the 1951 Convention, if all the conditions of Article 31 are met.”

22. On 14 February 2005, when the appellant presented a false Italian passport to Mohammed Hussan at the check-in desk she was a refugee within the Convention definition, as accepted at the criminal trial and now recognised by the Secretary of State. It has never been questioned, despite her brief stopover somewhere in the Middle East, that she was coming directly from the country where she had been persecuted. The jury accepted that she had, when challenged, presented herself to the authorities and that she had good cause for resorting to forgery and deception in the course of her flight from persecution. It seems to me that Adimi is fully supported by such authority as there is, both before and since, and was rightly decided. The UNHCR, who has intervened in this appeal and made most valuable submissions, strongly so submits. On the facts of this case, as now established, the appellant should not in my opinion, consistently with article 31, have been subjected to any criminal penalty on either count of the indictment preferred against her.

Section 31

23. The decision in Adimi exposed a serious lacuna in our domestic law, which failed to give any immunity against criminal penalties in accordance with article 31. Steps were hastily taken to make good the

omission, by enactment of section 31 of the Immigration and Asylum

Act 1999. This section as amended now provides:

“Defences based on Article 31(1) of the Refugee
Convention

31 (1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—

(a)	presented himself to the authorities in the

United Kingdom without delay;

(b)	showed good cause for his illegal entry or

presence; and

(c)	made a claim for asylum as soon as was

reasonably practicable after his arrival in the United
Kingdom.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3) In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—

(a)	Part 1 of the Forgery and Counterfeiting Act

1981 (forgery and connected offences);

(aa)	section 25(1) or (5) of the Identity Cards Act
2006;
(b)	section 24A of the 1971 Act (deception); or
(c)	section 26(1)(d) of the 1971 Act

(falsification of documents).

(4)	In Scotland, the offences to which this section applies are those—
(a) of fraud, (b) of uttering a forged document,

(ba) under section 25(1) or (5) of the Identity
Cards Act 2006,
(c) under section 24A of the 1971 Act

(deception), or

(d)	under section 26(1)(d) of the 1971 Act

(falsification of documents),

and any attempt to commit any of those offences.

(5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.

(6) ‘Refugee’ has the same meaning as it has for the purposes of the Refugee Convention.

(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

(8)	A person who—
(a) was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but
(b) at no time during the proceedings for that
offence argued that he had a defence based on Article 31(1),

may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(9)	A person who—
(a) was convicted in Scotland of an offence to
which this section applies before the
commencement of this section, but
(b) at no time during the proceedings for that
offence argued that he had a defence based on Article 31(1),

may apply to the Scottish Criminal Cases Review Commission with a view to his case being referred to the High Court of Justiciary by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(10)	The Secretary of State may by order amend—
(a) subsection (3), or (b) subsection (4),

by adding offences to those for the time being listed there.

(11) Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish Ministers.”

24. When the Bill which became the 1999 Act was before Parliament, the Divisional Court judgment in Adimi loomed largely in the discussion (see Hansard, HL, 18 October 1999, cols 844, 845, 848, 849, 850, 851, 852, 856, 857, 2 November 1999, col 784). A number of statements made by the Attorney General on behalf of the Government were relied on in argument. The Government wanted an outcome which properly accommodated article 31(1) asylum seekers and the difficulties raised by Simon Brown LJ (18 October, col 855). It was hoped to achieve this and avoid inappropriate prosecutions by giving administrative guidance to the prosecuting authorities (18 October, cols 855, 856) but if such prosecutions did occur the defence would exist (18 October, col 857). This was an appropriate and generous response and solution to difficult problems (18 October, col 857). On 2 November 1999, when the clause which became section 31 was (before amendment) introduced, the Attorney General said (col 784) that the purpose of the clause was to ensure that someone who came within article 31(1) of the Convention was properly protected and did not have a penalty imposed on him on account of his illegal entry or presence. He referred again to the administrative steps taken to identify article 31(1) issues at an early stage. In relevant cases therefore the matter would never come to court. Sometimes the administrative procedures would fail, and the defence was a further safeguard. He acknowledged as an addition the requirement in subsection (1) that a person should have applied for asylum as soon as was reasonably practicable, which he considered a fair addition. This was a narrower definition than that adopted by the Divisional Court, but he thought the Government was entitled to take its own view, and it had taken a different view. This did not mean (col 785) that every refugee who passed through a third country would be prosecuted, which did not and would not happen. There should be a limit on “forum shopping”, deciding to accept an offer of safety in country B or C, but not in country A. The definition of “coming directly” was a generous one. There had to come a time when an individual stopped running away, the article 31 situation, and started to travel towards a preferred destination. The Attorney General believed that the Government had got it right, but if the list of offences in subsections (3) and (4) needed to be added to, this could be done by order.

25. It is clear that in one respect, expressed in section 31(2), it was intended to depart from Adimi. Whether that subsection is consistent with the Convention, interpreted in the light of the travaux, may be open to question, but it is not a question which arises in this case, since it has never been suggested that in coming from Ethiopia the appellant stopped in any country outside the UK where she could reasonably have been expected to be given protection under the law of that country. Subsection (2) apart, no indication was given of an intention to depart from Adimi. More importantly, no indication was given of an intention to derogate from the international obligations of the UK as fully expounded in Adimi, as would be expected if that was the legislative intention. The indication was, rather, of an intention to reflect in statute the obligations undertaken by the UK in the Convention.

26. I am of opinion that section 31 should not be read (as the respondent contends) as limited to offences attributable to a refugee’s illegal entry into or presence in this country, but should provide immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit. This interpretation is consistent with the Convention jurisprudence to which I have referred, consistent with the judgment in Adimi, consistent with the absence of any indication that it was intended to depart in the 1999 Act from the Convention or (subject to the exception already noted) Adimi, and consistent with the humanitarian purpose of the Convention. It follows that the jury in the present case, on finding the conditions in section 31 to be met, were fully entitled to acquit the appellant on count 1, as the respondent then accepted, even though the offence was committed when the appellant was trying to leave the country after a short stopover in transit.

27. That result follows because the offence in count 1 was charged in Part 1 of the Forgery and Counterfeiting Act 1981, an offence covered by section 31(3)(a).

28. The offence in count 2, although within article 31 on my analysis and that accepted by both parties in the Court of Appeal, is not listed expressly in section 31(3). The list in that subsection is in some respects perplexing, since it does not (as one might expect) include an offence of illegal entry contrary to section 24 of the Immigration Act 1971 and there is no close correspondence between the offences listed in subsection (3), which do not include that charged in count 2, and those listed in subsection (4) which, as I understand, would cover the substance of that count, had the alleged offence been committed in Scotland. As matters stand, however, there is a disparity between the scope of article 31 and the scope of section 31(1) and (3), and by no legitimate process of interpretation can those subsections be read as including the offence charged in count 2.

29. The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990G; Lord Steyn in R (European Roma Rights Centre and others) v Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees Intervening) [2004] UKHL 55, [2005] 2 AC 1, paras 40-42; section 2 of the Asylum and Immigration Appeals Act 1993; and para 328 of Statement of Changes in Immigration Rules (HC 395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law. While, therefore, one would expect any government intending to legislate inconsistently with an obligation binding on the UK to make its intention very clear, there can on well known authority be no ground in domestic law for failing to give effect to an enactment in terms unambiguously inconsistent with such an obligation.

30. The appellant sought to assert that she had a legitimate expectation that the UK would honour its obligation under article 31 of the Convention. But she cannot, at the relevant time, have had any legitimate expectation of being treated otherwise than in accordance with the 1999 Act. Nor can the criminal defence of necessity be stretched to cover this case.

31. The appellant also submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal’s view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.

32. In rejecting the appellant’s objection to count 2 the learned judge was following authority binding on him: see R (Pepushi) v Crown Prosecution Service [2004] 798 (Admin). But there is an obvious inconsistency between his grounds for rejecting that objection and his direction to the jury (see paras 5 and 6 above). His grounds for dismissing the appellant’s objection was also, in my opinion, wrong, since if the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.

33. The trial judge cannot of course be criticised for acting in accordance with binding authority, incoherent though (on his interpretation) the outcome was. It is, however, apparent that counsel’s preliminary objection to count 2 could only, consistently with article 31 and the intention of section 31, have been fairly met by staying further prosecution of count 2 at that stage. If the jury acquitted the appellant on count 1, the stay on prosecuting count 2 should have been maintained. If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge’s ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant’s culpability.

34. The Court of Appeal expressed its concern about this case by allowing the appellant’s appeal against sentence and ordering that she be absolutely discharged. But in my opinion it was an abuse of process in the circumstances to prosecute her to conviction. On 14 February 2005 the appellant was, in the Attorney General’s expressive phrase, “still running away” from persecution. Once that was established, count 2 being factually indistinguishable from count 1, she should not have been convicted at all. I would accordingly allow the appeal, quash the appellant’s conviction and invite the parties (other than the intervener) to make written submissions on costs within 14 days.

LORD HOPE OF CRAIGHEAD

My Lords,

35. The issues raised by this case fall conveniently into two parts. The first is whether the appellant was entitled to the protection of article 31(1) of the 1951 Convention and Protocol relating to the Status of Refugees. The second is whether she had a defence under section 31 of the Immigration and Asylum Act 1999 to the charge of attempting to obtain services by deception contrary to section 1(1) of the Criminal Attempts Act 1981, notwithstanding the fact that this is not one of the offences specified in section 31(3) of the 1999 Act as those to which a defence under that section is available.

36. Before I examine these two issues I should like to say something about the circumstances in which the appellant came to be charged with the offence under section 1(1) of the 1981 Act. It has to be acknowledged at the outset that this is not the type of case that was in the forefront of the minds of the framers of the Convention in 1950 when article 31 was being formulated. Their concern was to protect refugees who were coming to the territory of a contracting state. In this case the fact that the appellant was travelling on a false Ethiopian passport was not detected when she entered this country at Heathrow Airport. She was detected when she was attempting to leave this country from the same airport with a false Italian passport later the same day. The question which lies at the heart of the first issue is whether she was entitled to the protection of article 31(1) against the imposition of a penalty on account of her attempt to leave the country illegally, not to enter it.

The facts

37. The current practice is for passengers departing on international flights to be asked to present their passports at the airline’s check-in desk when they are checking in for the flight which they intend to take, and for their passports to be examined again at the departure gate. This is because airlines are exposed to substantial penalties if they carry passengers to a country which they will not be permitted to enter because they have no valid passport or its visa requirements are not satisfied. The Immigration (Carriers’ Liability) Act 1987 requires carriers to make payments to the Secretary of State in respect of passengers brought by them by ship or aircraft to the United Kingdom without proper documents, currently amounting to £2,000 per passenger. (The 1987 Act was repealed by the Immigration and Asylum Act 1999, section 169(3) and Schedule 16 as from a date to be appointed, and replaced by a new system of carriers’ liability under sections 40 and 42. But no date for the taking effect of these provisions has yet been appointed.) Carriers who carry passengers from the United Kingdom without proper documents are exposed to similar sanctions in the countries to which they are travelling.

38. The appellant’s attempt to leave the country with a false passport was detected when the first opportunity arose for her passport to be examined to avoid incurring this liability, which was at the Virgin Atlantic check-in desk. Information was passed to the police and she was arrested when, after passing through security and passport control, she reached the departure gate. The obstacle which she encountered was one that can be expected to confront all refugees who are in transit by air through Gatwick or Heathrow from a territory where their life or freedom was threatened to the country where they intend to seek asylum.

39. Heathrow Airport, where this incident took place, is one of the busiest airports in Europe. One of the reasons why it attracts so much business is that it serves so many destinations. Many of the passengers who use it are in the course of travel from places both within and outside Europe to destinations in North America. Usually changing from one flight to another while in transit can be done without having to enter the United Kingdom. But this may not always be possible. Refugees whose movements and documents have been prepared for them by their couriers may not be able to avoid doing so. Even if they can, they will still face the problem of having to present their passports for examination by the airline at the departure gate before they are permitted to board the aircraft. In R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667, 674B-C Simon Brown LJ observed that the combined effect of visa requirements and carriers’ liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents. The barrier to onward travel which faces passengers in possession of false passports or other travel documents is one which every refugee is likely to encounter while in transit to North America through any of Europe’s principal international airports.

40. The situation which I have described is unlike that with which the framers of the Convention were familiar in 1950. Transfers from one vehicle to another have, of course, been part of travel from time immemorial. But the journey which the respondent was taking when she was at Heathrow had some significant features that are the product of more recent developments. Transatlantic travel in the early 1950s was almost always by ship. And it was for the few, before the introduction of suitable aircraft made international air travel over long distances accessible to everyone. The significant increase in air travel that resulted from the use of such aircraft led to the practice of permitting passengers to transfer from one flight to another without requiring them to enter the country in which the airport where the transfer was to take place was situated. Then came the prospect of the imposition of financial penalties under carrier sanctions legislation in the United Kingdom and North America.

41. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1, para 28 Lord Bingham of Cornhill quoted a passage from an article published in 1998 (“United Kingdom: Breaches of article 31 of the 1951 Convention” (1998) 10 Int J Refugee Law 205, 209-210) in which Richard Dunstan, formerly Refugee Officer, Amnesty International United Kingdom, provided this description of the practice that many leading countries have adopted:

“In recent years, and in common with many other western countries, the United Kingdom, Canada and the United States have imposed visa regimes on nationals of practically all significant refugee-producing countries, in an apparent attempt to reduce the number of would-be asylum-seekers from such countries arriving at their borders. These visa regimes have then been enforced by the imposition of heavy financial penalties on those transport operators bringing passengers lacking a valid

visa where one is required. For example, under the Immigration (Carriers’ Liability) Act 1987, the United Kingdom authorities impose a financial penalty of £2,000 per passenger brought without either a valid passport or a visa where one is required. Introducing this legislation in March 1987, the then Home Secretary, Douglas Hurd, stated that ‘the immediate spur to this proposal has been the arrival of over 8,000 people claiming asylum in the three months to the end of February 1987.’ Between May 1987 and October 1996, fines totalling £97.6 m were imposed on over 440 airlines and shipping companies. The United Kingdom authorities have also provided training, advice and technical support in respect of the detection of false travel documents to airline staff based at various points of embarkation….

“Similarly, in the United States a financial penalty of US$3,000 per improperly-documented passenger may be imposed under section 273 of the Immigration and Nationality Act 1952, the penalty having been increased from US$1,000 in 1990. And in Canada a financial penalty of up to CAN$ 3,200 per improperly-documented passenger may be imposed under the Immigration Act 1976, as amended. As long ago as 1986, a total of 541 airlines were each fined CAN$1,000 by the Canadian authorities for not demonstrating sufficient vigilance in their checking of passengers’ travel documents.”

The practice of imposing liability on carriers has been adopted by most European countries too. A study conducted for the European Council on Refugees and Exiles, “Carriers’ Liability: Country up-date on the application of carriers’ liability in European States”, published in February 1999, showed that all states parties to the Schengen Convention, plus Norway and Iceland, who had concluded a parallel convention, had introduced a system of carriers’ liability.

42. It can be assumed therefore that the incident at the Virgin Atlantic check-in desk was the product of demands made on the airline by the country of destination, not the country of departure. Formerly passport controls on exit were comparatively relaxed. The emphasis was on controls on entry. Now the controls on exit which are imposed by the carrier are diligently exercised. It is significant that the fact that the appellant was attempting to travel on a false passport was detected by the airline’s security official at the check-in desk. She then passed

through passport control to departures apparently without incident before she was stopped by the police, who had been alerted by the security official, at the departure gate.

Article 31 of the Refugee Convention

43. Article 31 is headed “Refugees unlawfully in the country of refuge”. Its purpose is to exempt illegally entering refugees from penalties. The need for protection of this kind was first observed by the 1950 Ad Hoc Committee on Statelessness and Related Problems which prepared the draft Convention. It noted in its draft report that a refugee, whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry into the country of refuge: Refugee Protection in International Law, ed Feller, Türk and Nicholson (2003), p 190. After further discussion and negotiation article 31(1), which was not among the texts considered by the Ad Hoc Committee, was included in the Convention. It provides:

“The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

44. The phrase “on account of their illegal entry or presence” appears to limit the situations to which the protection of the article can apply. As I have already mentioned, the fact that the appellant was travelling on a false passport was not detected when she entered this country from somewhere in the Middle East. This did not happen until about an hour later when, having been provided by her agent with further travel documents, she presented her false Italian passport at the check-in desk. Her offences were committed while she was still present in this country. But they were not committed with a view to persuading the authorities that she should be allowed to remain here. They were committed with a view to her being permitted by the airline to continue her journey to Washington. The way her agent dealt with her made it necessary for her to pass through passport control on her arrival at Heathrow to check in for her onward flight to Washington. But she was in reality a passenger who was in transit. Her entry to this country was purely incidental to the journey to the United States which she was still engaged in when she was arrested.

45. There is no indication in the travaux préparatoires that any of the plenipotentiaries who met in Geneva in 1951 had in mind the position of refugees who were still in transit to another country when their illegal presence was detected. The position of refugees passing through intermediate countries to the state of refuge was referred to. But this was in the context of illegal entry to or presence in the country of refuge. The wording of the original version of article 31(1) was amended to meet an objection by the French representative that France could not bind itself as a country of second reception to accept refugees coming through intermediate countries. This objection was met by the French amendment, which addressed the problem of defining what might constitute good cause for their illegal entry into or presence in the country of refuge. There is no indication that it was the intention that refugees should be denied protection if their illegal presence happened not to be detected until they were on the point of departure from the country where, in the event, they decided to seek refuge.

46. In his commentary on article 31 in The Refugee Convention 1951 with travaux préparatoires, p 279, Dr Paul Weis, said that it would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely presented himself as soon as possible to the authorities of the country of asylum and was recognised as a bona fide refugee. The generality of Dr Weis’s comment suggests that all refugees escaping persecution who, having crossed the frontier, are still in the country and satisfy this requirement are entitled to the exemption from penalties. But the context for his remark shows that the penalties that he had in mind were those associated with illegal entry, not with illegal exit while in transit to another country.

47. Your Lordships have not been provided with any evidence that article 31(1) was being interpreted judicially as extending to situations of this kind until R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667. Judgment in that case was delivered on 29 July 1999. Two of the applicants in that case, Mr Sorani and Mr Kaziu, were in transit when they presented false documents at Heathrow while attempting to board flights to Canada. At p 677H Simon Brown LJ said that he regarded as helpful Newman J’s suggestion that the illegal entry or use of false documents which could be attributed to a bona fide desire to seek asylum “whether here or elsewhere” should be covered by the article. At p 687F-G he said that, as the applicants would have been entitled to the benefit of article 31(1) had they reached Canada, logically its protection could not be denied to them in this country merely because they had been apprehended en route. In R (Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin), para 15 the Divisional Court said that it seemed to it, in the light of the brief argument that had been addressed to it on this point, that Adimi was rightly decided.

48. In a Memorandum of Good Practice endorsed by the Association of Chief Police Officers, the Immigration and Nationality Directorate, the Crown Prosecution Service and the Law Society representing defence solicitors (third draft, 8 March 2000), it was recognised that criminal offences giving rise to the question whether the protection afforded by article 31(1) was available might be committed by persons entering, departing from or in transit via the United Kingdom: para 3.1. The advice that the defence might be available was put into practice in this case. The appellant, a transit passenger, was permitted to take advantage of the statutory defence based on article 31(1) in regard to the first count on the indictment without objection from the prosecutor. It was only when the case reached this House that the defence was called into question by the respondent on the ground that the appellant’s conduct was outside the scope of article 31(1).

144. On the contrary, the Plenipotentiaries’ discussions were focused on two situations: one, where a refugee was fleeing from an intermediate country in which his safety was threatened, the other where the intermediate country was refusing to grant him asylum - and so no doubt only too keen to speed his departure. In neither situation would provision for immunity in the intermediate country have seemed or been very realistic, and in any event the Plenipotentiaries were addressing contexts where the refugee had successfully moved to a final destination and were dealing with immunity in respect of illegal entry or presence there. It might be suggested that a refugee who had no option but to use false documents to leave an intermediate country where his or her safety was threatened should, if apprehended while attempting to leave, enjoy immunity there on the ground that he or she had acted under necessity (however unrealistic it might be to think that such a country would in fact recognise such an immunity). But there can be no necessity for implying any such immunity in the present case, and moreover it would seem inconsistent with article 2 of the Geneva Convention to do so.

145. Unlike article 31(1), section 31(1) of the 1999 Act is not expressly limited to offences committed “on account of …. illegal entry or presence”. But, construed as a whole and in the light of its clear intention to give effect to article 31(1), it should be so understood. I therefore agree with Lord Rodger (para 115) there was no reason why section 31(3) should have included section 1(1) of the Criminal Attempts Act 1981 in the list of offences which it contains. On the other hand, as he also points out, it is hard to understand why the basic offence of entering the United Kingdom without leave, under section 24(1)(a) of the Immigration Act 1971 is not listed in section 31(3) and (4).

146. It follows from the above, first, that I would dismiss this appeal and associate myself with Lord Rodger’s further remarks in para 116 of his judgment, and, second, that it is also unnecessary for me to deal with the other points argued by counsel which would only arise if article 31 applied.

APPENDIX

147.     At the start of the 13th meeting on 10 July 1951, the draft of

article 26, as what became article 31 was then numbered, omitted any requirement that the refugee should come direct from anywhere, and included only provisos that “he presents himself without delay to the authorities and shows good cause for his illegal entry or presence”. France proposed an amendment to insert the words “coming direct from his country of origin”; M Colemar, the French representative, pointed to the example of a refugee who had found asylum in France, and then tried to make his way unlawfully into Belgium, saying that “It was obviously impossible for the Belgium Government to acquiesce in that illegal entry, since the life and liberty of the refugee would be in no way in danger at the time”. The President, Mr Hoeg, speaking as representative of Denmark, countered with the example of a Hungarian refugee living in Germany who “might, without actually being persecuted, feel obliged to seek refuge in another country”, and suggesting that it was “reasonable to expect that the Danish authorities would not inflict penalties on him for ….. illegal entry” into Denmark in such a case, provided he could show good cause for it. Mr Hoeg was not explicit about what he meant by “obliged to seek refuge” or “good cause” in such a case, but it is significant that he concluded by saying that, if the French amendment was accepted, it would be necessary to replace the additional phrase suggested by the French delegation by the phrase “coming direct from a territory where his life or freedom was threatened”. The French were amenable to this suggestion.

148.     Nevertheless, at the next (14th) meeting, the discussion resumed

on the French draft amendment “coming direct from his country of origin”, which the United Nations Commissioner for Refugees, himself a former refugee, criticised as too narrow. It would not, he pointed out, cover his own case, as a refugee who “in 1944 …. had himself left the Netherlands on account of persecution and had hidden in Belgium for five days”, and, “as he had run the risk of further persecution in that country, …. had been helped by the resistance movement to cross into France”, from which “he had gone on into Spain, and thence to Gibraltar”. He concluded that “Thus, before reaching Gibraltar, he had traversed several countries in each of which a threat of persecution had existed. He considered it very unfortunate if a refugee in similar circumstances was penalized for not having proceeded direct to the country of asylum”, and it seems reasonably clear (though the transcript omits some words) that he went on to prefer replacement of the words “coming direct from his country of origin” by words such as Mr Hoeg had suggested. He then raised a second problem, that of refugees who fled from a country of persecution direct to a country of asylum, where however they were refused the right to settle, although that country was a Contracting State, and to suggest that “Such refugees might possibly be covered if the words ‘and shows good cause’ were amended to read ‘or shows other good cause’”.

149. M Colemar responded to these points by saying that “France was not absolutely opposed to the illegal entry and residence of certain refugees” and was willing to consider inserting, instead of the phrase it had suggested, words such as “having been unable to find even temporary asylum in a country other than the one in which his life or freedom would be threatened”. He said that “Such a change would meet the points which were causing the High Commissioner concern”. The United Kingdom representative, Mr Hoare, wondered whether the original text “did not allow countries like France, which received refugees in great numbers, sufficient latitude”, while also covering the fact that “as the High Commissioner had pointed out, there might be cases where a refugee could show good cause even though he had not fled direct from a country where his life was endangered”. The French representative insisted that he must press his amendment, referring to the difficulty of defining the reasons which could be regarded as constituting good cause, and saying that it was “precisely on account of that difficulty that it was necessary to make the wording of paragraph 1 more explicit”, and that “To admit without any reservation that a refugee who had settled temporarily in a receiving country was free to enter another, would be to grant him a right of immigration which might be exercised for reasons of mere personal convenience. It was normal in such cases that he should apply for a visa to the authorities of the country in question”.

150. The Belgian representative wondered whether inability to find asylum in an intermediate state would be considered as sufficient alone to constitute “good cause”. The High Commissioner expressed the contrary opinion that the French representative’s latest suggestion would protect both the categories of refugee to whom he had referred. The United Kingdom expressed reservations about the onus of proof imposed on a refugee by the French proposal. The Belgian representative asked what was meant by “temporary asylum” and whether a Contracting State would be “able to impose penalties on a refugee who had stayed in another country for a week or a fortnight, and had then been obliged to seek asylum in the territory of the Contracting State in question”, and he later proposed that the French draft be altered by replacing the phrase “having been unable to find” with “being unable to find”, so as not to exclude “any refugee who had managed to find a

few days’ asylum in any country through which he had passed”. The discussion concluded by voting on and accepting this (with very minor modification) in the form “being unable to find asylum even temporarily in a country other than the one in which his life or freedom would be threatened”.

151. By the time of the final meeting on this topic on 25 July 1951, the High Commissioner had had second thoughts about this insertion. He observed that

“Although aware that that provision had been inserted in order to limit exemption from penalties to refugees who came to the receiving country from the country of persecution direct, or through another in which, for one reason, or another, they were unable to stay, he did not feel that the words he had quoted met that requirement. They would place on the refugee the very unfair onus of proving that he was unable to find even temporary asylum anywhere outside the country or countries in which his life or freedom would be threatened. As there some eighty States in the world, the difficulty of such a task required no emphasis. His personal view was that the words ‘show good cause for his illegal entry or presence’ covered the point, but since the general feeling of the Conference seemed to be that some specific provision was necessary, he suggested that paragraph 1 [of the original draft] be amended …..” [ie so as to conclude “and shows good cause for believing that his illegal entry or presence is due to the fact that his life or freedom would otherwise be threatened”].

152. M Rochefort, now representing France, said that France “wished to avoid having to accept any refugee from a neighbouring country who voluntarily decided to move to France, perhaps on the pretext that the neighbouring country concerned would no longer give him permission to reside there”. The United Kingdom and the President supported the High Commissioner’s amendment, the latter saying that, as regards “the imposition of punishment on refugees for clandestinely crossing the frontier, …. there he thought there had been no objection to the High Commissioner’s interpretation, namely, that the refugee’s illegal entry or presence must be proved to be due to the fact that his life [or] freedom would otherwise have been threatened”, an interpretation which the High Commissioner immediately confirmed. At this point, M

Rochefort identified a different concern arising from the fact that the Geneva Convention as originally negotiated and agreed was limited to persecution occurring before 1 January 1951. The revised wording would, he observed, bind France to accept a refugee who had left his country of origin for a neighbouring country due to such an event occurring prior to 1 January 1951, and whose life had then been threatened in that neighbouring country by events occurring after 1 January 1951. The Swedish delegate noted that a threat to freedom in the neighbouring country might not involve persecution at all; it might for example be a threat of imprisonment for theft.

153. To meet the French point, Mr Hoare suggested the insertion of the phrase “coming directly from the country of his nationality or of former habitual residence”, those being he noted the words used in paragraph A of article 1. M Rochefort, not surprisingly, observed that this insertion would be almost word for word that which the French amendment had proposed at the 14th meeting, but that “An intermediate formula had been suggested, namely “arriving directly from a territory where their life or liberty was threatened”; this he suggested would also be in accordance with article 1 and might be acceptable. The High Commissioner enquired whether the United Kingdom suggestion meant that only a refugee who came direct from his country of nationality or habitual residence would be covered, and that a “refugee who, coming from a country of persecution, entered a country after transit through a second country in which he had succeeded in hiding or which had refused him refuge, would be excluded”. In other words, he raised, once again, the two points he had raised at the outset of the 14th meeting. Mr Hoare replied that he had intentionally made his suggestion restrictive. He would have liked to propose one of wider application, but said that

“since the French representative was unwilling to agree that refugees entering from intermediate countries should be included, he had limited the scope of his text accordingly. He would however be willing to broaden it if that was possible.”

The High Commissioner responded by pointing out that his suggestion had not been to broaden or narrow the article, but to relieve the refugee from the burden of proof that no country in the world was prepared to accept him, and that neither his own text nor the one now before the meeting (ie presumably the United Kingdom’s) met the French representative’s point (ie regarding events occurring after 1 January

1951). M Rochefort said that the High Commissioner’s explanation put
the whole problem squarely before the meeting:

“Did the simple fact that a refugee, having left a country in which he had been persecuted, failed to obtain asylum in another, impose upon a third country the obligation of receiving him without having the right to impose penalties? Each country had to accept its frontier responsibilities, but the fact that an intermediate country refused to face its own could not deprive a third country of the right to take precautions against illegal entry”.

He then suggested an insertion reading “coming directly from a territory in which his life or freedom would be threatened within the meaning of article 1, paragraph A, of this Convention”. This, as matters transpired, mirrored in effect, and very closely in wording, the final text of article 31.

154. There was a further round of discussion before the final text was agreed. The President proposed to put before the meeting the High Commissioner’s amendment sponsored by the United Kingdom, followed by the amendment introduced by the French. M Rochefort reiterated that he could not agree to the United Kingdom amendment, but suggested that the French amendment be amended by replacing the words “country of origin” with the words “country in which he is persecuted”. Mr. Hoare agreed to withdraw the United Kingdom amendment, although he considered that it amply covered the French representative’s difficulties and was

“more flexible, inasmuch as it left to the Government of the country in question the decision whether the refugee had no alternative to entering the country other than endangering his life and liberty by remaining in the first country. The United Kingdom amendment made it possible to follow the general principle of the article, and at the same time allowed for a certain amount of flexibility in the case of refugees coming through intermediate countries, while still not obliging any State to accept the latter category when there was insufficient cause for their having chosen to enter its territory clandestinely”.

He said that he could not vote for the French amendment, and evidently thought that the definition of refugee already agreed in article 1 covered “a refugee [who] left a country after narrowly escaping persecution, but without having actually been persecuted”. M Rochefort indicated that this point could be met (as it was in the final text), but that

“As a country of second reception, however, [France] could not bind itself to accept refugees from all the other European countries of first reception. There had to be some limit such as that of events occurring before 1 January 1951”.

The United Kingdom amendment having been withdrawn, a revised version in the form of the final text of article 31(1) was voted on and agreed.