R v Asfaw - [2008] UKHL 31

HOUSE OF LORDS

SESSION 2007–08
[2008] UKHL 31

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

Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Carswell
Lord Mance

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Asfaw

Details

AGLC: R v Asfaw [2008] UKHL 31
Case: [2008] UKHL 31
Decision Date: 21 May 2008

CaseChat Overview and Summary

In R v Asfaw, the appellant, an Ethiopian national, was charged with using a false instrument with intent and attempting to obtain services by deception. The Court of Appeal certified a point of law of general public importance for the House of Lords to decide: whether a defendant charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999 could rely on the protections afforded by article 31 of the 1951 United Nations Convention Relating to the Status of Refugees. The House of Lords held that the appellant was entitled to the protection of article 31(1) of the 1951 Convention and Protocol relating to the Status of Refugees, and that she had a defence under section 31 of the Immigration and Asylum Act 1999 to the charge of attempting to obtain services by deception, notwithstanding the fact that this offence was not one of those specified in section 31(3) of the 1999 Act. The court further held that it was an abuse of process to prosecute the appellant to conviction under count 2, and quashed her conviction and ordered her absolute discharge. The House of Lords concluded that the disparity between the scope of article 31 and the scope of section 31(1) and (3) could not be resolved by legitimate interpretation, and that the appellant should not have been subjected to any criminal penalty on either count of the indictment.

Orders