New practice note to alert criminal practitioners to the statutory defences available to asylum seekers
The Law Society last month published a useful practice note on the statutory defences available to asylum seekers charged with document offences.
Image credit: UK GovernmentYou can read it here.
The practice note is intended 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 an immigration document with them at a leave or asylum interview.
As the Law Society notes, recent cases have highlighted the need for criminal practitioners to be aware of the availability of defences when representing defendants charged with document offences.
The practice note explains that those charged with document offences may have a defence under section 31 of the Immigration and Asylum Act 1999, which brought into domestic legislation the protection provided in article 31 in the 1951 Refugee Convention, and under section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
The Law Society says that the Criminal Cases Review Commission (CCRC) has referred over 30 separate cases to the relevant appeal court since 2012 because the defendants were not notified of, nor afforded the opportunity, to raise a statutory defence against document offences.
In an August article on the potential charges faced by a Sudanese man who walked the length of the Channel Tunnel to seek asylum in the UK, Free Movement noted that the CCRC has expressed its concern that hundreds of asylum seekers may have been wrongly convicted over their entry to the UK. The CCRC considers it "a significant and potentially widespread misunderstanding or abuse of the law".
News media reported today that the Sudanese man in question has now been granted asylum in the UK.
However, the Telegraph notes that prosecutors have yet to decide whether to press ahead with charges under the Malicious Damage Act 1861 of causing an obstruction to a railway engine or carriage.
According to the Telegraph, Philip Bennetts QC, for the CPS, told the court that prosecutors wanted an adjournment to decide whether to proceed with the case "in light of the defendant being granted asylum status".
Free Movement said in August that the prosecution of the man for an "obscure nineteenth century railways offence" was "inappropriate and wrong".
A spokesman for Eurotunnel said today it was disappointed with the decision to postpone the prosecution, adding it "will only act as an encouragement to other migrants to seek to gain illegal entry to the UK."