Carriers’ liability
The Immigration and Asylum Act 1999 extended carriers’ liability to cover all road vehicles, air transport, shipping and international railway services. A carrier company faces a fine if they bring a passenger without the correct travel documentation into the UK. The carrier will have to pay the fine even if they did not know the passenger was actually on board, for example, because they were hiding. This is known as a ‘civil penalty’.
When issuing this penalty, the UKBA considers to what extent the carrier company has tried avoiding carrying undocumented passengers, and sets the fine accordingly. Fines can be up to £2,000. In certain cases, sea and air carriers may not have to pay the fine if they have proof that they have taken every possible reasonable precaution. If an illegal immigrant applies for asylum in the UK and the UKBA allows him or her to stay, it may reimburse the carrier company for the original fine paid.
Passports and visas
The Immigration Act 1971 (IA 1971), amended by the 1999 Act, makes it a criminal offence for an asylum seeker to try to enter or remain in the UK by using deception. Many refugees come from countries where they have to obtain a visa before travelling to the UK. When significant numbers of people from such countries start applying for asylum in the UK, the Government tends to impose visa restrictions on the country in question. In November 2002, when the numbers of Zimbabweans fleeing Mugabe’s dictatorship to apply for asylum here increased in the UK, the Government imposed visa restrictions on Zimbabwean nationals. The Government is also placing more airline liaison officers (UK immigration officers) in airports abroad to prevent people from travelling if they do not have the correct travel documents.
Circumstances force many refugees to rely on false documents to be able to flee. If the government in their country persecutes then, it is unlikely to issue them with a passport. Article 31 of the Refugee Convention addresses this issue and sets out specifically that a country “shall not impose penalties, on account of their illegal entry or presence, on refugees”.
Arriving in the UK without valid documentation
There are a range of laws under which people may be charged for using false documents including Section 2 of the Asylum and Immigration Act 2004. This makes it a criminal offence to fail to provide a reasonable excuse for not showing immigration documents when asked to do so by the authorities.
The Act lists a number of possible defences. For example, if the applicant never had a document when travelling to the UK or if the applicants produces the false document on arrival. However, it is not enough for someone to say that their smuggling agent instructed them to destroy or discard their documents. They must show that it was unreasonable for them not to follow the agent’s instructions. They may, for example, have been threatened with violence.
However, in October 2006 the Administrative Court ruled that because of the specific wording of the statute an individual has only committed an offence if the document they destroyed was a genuine immigration document. Anybody destroying false documents will not have committed an offence and any conviction made on these grounds is wrong.
This is not the whole picture as people may also be charged under the Forgery and Counterfeiting Act 1981; the Immigration Act 1971 or the Identity Cards Act 2006.
Section 31 of the 1999 Immigration and Asylum Act does in theory provide a defence if somebody can show that they are a refugee. However in 2008 the House of Lords considered a case R v Asfaw [2008] UKHL 31 which dealt with the an asylum seeker prosecuted for two documentation offences where the Section 31 defence was only available in respect of one of the offences despite the fact that both offences fell within the scope of Article 31 of the Refugee Convention.
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 to accept it as genuine. In count 2 the appellant was charged with attempting to obtain services (her air ticket) by deception, contrary to section 1(1) of the Criminal Attempts Act 1981.
She was acquitted of the first charge under the Section 31 defence but was found guilty of the second. The House of Lords overruled this saying that it took too narrow a view of the protection afforded by Article 31 of the Refugee Convention. Obtaining and using the passport and buying the tickets were all part of the same act of flight and come within the protection of Article 31. This may mean that many people have been wrongly convicted for these offences and need to get legal advice.
Interviews held by the Immigration Service or UKBA in order to determine if someone has committed an offence are held under ‘caution’. If it appears that the applicant does not have a valid defence, then the interviewing officer should continue questioning in line with the Codes of Practice in the Police and Criminal Evidence Act 1984 (PACE). Under this legislation, the applicant has to be informed about their right to a legal representative before answering any more questions which might lead them to further implicate themselves.
It is advisable to request an immigration solicitor at this point as there may be a defence under Article 31. Legal representatives can be funded by the Legal Services Commission to attend interviews conducted by immigration officials under PACE. Many people only ever get to see a duty solicitor whose expertise is in crime rather than immigration. They will often advise their client to plead guilty in order to minimise any sentence rather than exploring possible Article 31 defences.
Certification
A certificate is a legal document made by the Home Office concerning an asylum or human rights claim. The most common types of certificate refer to a ‘safe third country’ where the claim should be considered or indicates that the Home Office considers the asylum claim be ‘clearly unfounded’.
Safe third country
Under the Refugee Convention states have a duty not to return people to places where they might face persecution. This is the principle of non-refoulement. However, governments have given themselves the power to return people to countries that they have passed through and where they believe the asylum application should be considered, so long as they will not face persecution there. The UK uses the 2003 EU Dublin II Regulation for returning asylum seekers to mainly EU countries.
The Dublin II Regulation sets out the criteria for deciding which country should be responsible for a particular asylum claim made within an EU member state, Norway or Iceland. If an applicant applies for asylum in the UK after travelling through or claiming asylum in another country that has signed the Dublin II Regulation, then the Home Office can certify the claim. The applicant may be able to challenge certification by judicial review if they have concerns about how the other country may treat them once they are there. Generally they can only appeal from abroad on human rights grounds within 28 days of their departure from the UK. During 2008 there have been growing concerns about access to asylum procedures in Greece and the real risk of refoulement.
Clearly unfounded
Section 94 of the Nationality, Immigration and Appeals Act 2002 allows the Secretary of State to consider certifying any claim from a list of designated countries as clearly unfounded. This means that the applicant may only appeal from outside of the UK, normally after being returned to their country of origin. The original list included countries which have since acceded to the EU and have therefore been removed, but further lists of countries have been subsequently added.
It is also possible to certify any individual claim on its merits irrespective of which country it is from.
The list below is current at August 2008:
- Albania
- Bolivia
- Bosnia
- Brazil
- Ecuador
- India
- Jamaica
- Macedonia
- Mauritius
- Moldova
- Mongolia
- Montenegro
- Peru
- Serbia
- South Africa
- Ukraine
Along with male asylum seekers with clearly unfounded claims from the Gambia, Ghana, Kenya, Liberia, Malawi, Mali, Nigeria and Sierra Leone.
Note that it is possible to designate parts of a country as places where applications will be considered to be ‘clearly unfounded’ and also types of cases. Thus eight of the countries listed above are designated for men only.
