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Comments
on the Asylum and Immigration (Treatment of Claimants, etc.) Act
2004. Clause 2 Draft Guidance of June 2004
The
Office of the United Nations High Commissioner for Refugees (UNHCR)
welcomes the opportunity to provide comment on these draft guidelines.
We would like to do so in line with our mandate to protect refugees
worldwide and to supervise the implementation of international instruments
concerning refugees.
Our
supervisory role is recognised in Article 35 of the 1951 Convention
relating to the Status of Refugees (the 1951 Convention) which obligates
Contracting States to undertake to cooperate with UNHCR in the exercise
of its functions and, in particular, to facilitate its duty of supervising
the application of the provisions of the 1951 Convention. It is
in this context that UNHCR would like to raise concerns that the
effect of these guidelines would be to expose asylum seekers to
penalisation for illegal entry or presence in the UK, contrary to
the UK’s obligations under Article 31(1) of the 1951 Convention.
Scope
of Article 31(1)
Article
31(1) of the 1951 Convention relating to the Status of Refugees
provides that:
‘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’.
Refugees
are often forced to flee their own country in fear of their lives.
It is well-established that the need to escape persecution frequently
compels refugees to resort to irregular means of entry into host
countries - including reliance on facilitators and/or the use of
false documentation. Article 31 is specifically aimed at protecting
persons in this situation from prosecution for the measures that
they were forced to utilise to reach safety. For this reason, it
is essential that the aim of making a genuine claim for asylum should
constitute a defence to any potential prosecution under Clause 2.
Relationship
between an Asylum Application and Clause 2 Criminal Proceedings
Baroness
Scotland suggests in her letter of 28 June 2004 that it would not
be appropriate for prosecution for a Clause 2 offence to be delayed
until an asylum claim has been dealt with. She asserts that the
defences already provided by the Clause will protect any refugee
who has an acceptable reason for being undocumented from being convicted.
This position is reflected in the draft guidance on Clause 2 at
paragraph 3.5.
UNHCR
does not consider the defences to be sufficient alone to ensure
compliance with Article 31 and therefore urges that the position
espoused in Baroness Scotland’s letter be reversed to ensure
that no penalties should be applied to any undocumented person who
presents him/herself to the authorities in order to make a genuine
request for asylum. Indeed it will often simply not be possible
to investigate the question of ‘reasonable excuse’ without
having first fully assessed the applicant’s past history in
the context of an asylum claim. Therefore the only effective way
to ensure that this most vulnerable group of people are not exposed
to the trauma of being erroneously prosecuted under Clause 2 is
to wait until their asylum status is finally determined in a thorough
and fair procedure before initiating any such prosecution. Given
that asylum applications are soon to be processed in a matter of
weeks, delaying such action will also ensure that time and resources
are not wasted through unnecessary prosecutions.
Clause
2 may also compromise the integrity of an asylum application at
its very start if the applicant is forced to choose between a) giving
an honest account of his journey to the United Kingdom and facing
prosecution, and b) avoiding prosecution by compromising the overall
credibility of his or her asylum application. Prosecutions for illegal
entry, illegal presence or possession of false documents will be
consistent with Article 31 only where they are clearly and on their
face unrelated to a genuine request for asylum.
Draft
guidance: Paragraph 3.5 – The current text should be removed
and replaced by clear directions to the effect that in general
it will be appropriate to delay the outcome of criminal proceedings
until resolution of any asylum claim has taken place.
Moreover,
an asylum seeker, prior to having his or her case heard, could be
charged with a criminal offence under Clause 2 and sentenced to
two years in prison. Under Section 72 of the Nationality Immigration
and Asylum Act 2002 (‘NIA 2002’), the Home Secretary
could then seek to exclude altogether the refugee from protection
under the 1951 Convention. This could potentially result in the
refugee being returned to face persecution in the country of origin,
without the opportunity to present his or her case. If this were
to occur, it would be a violation of the letter and the spirit of
the 1951 Convention and outside of the appropriate application of
Article 33(2).
Draft
guidance: Guidance should include clear provision that offences
under Clause 2 should not constitute a ‘particularly serious
crime’ such as to invoke s.72 NIA 2002.
Purpose
of the Clause 2 Offence
As
stated, the protection from penalisation for illegal entry or presence
afforded by Article 31 of the 1951 Convention applies to all refugees
coming directly from a territory where they have a well-founded
fear of being persecuted, provided that they present themselves
without delay to the authorities and show good cause for their illegal
entry or presence. Article 31 contains no additional requirements
that must be satisfied by refugees in order to fall under its protection.
Draft
guidance: Paragraphs 2.1.3 and 3.1.3 – the protection from
prosecution afforded by Article 31(1) is not restricted to the
two categories of persons listed. Redraft paragraphs to clarify
that it is not the intention of the offence to penalise those
who satisfy the provisions of Article 31(1).
The
Reasonable Excuse
In
the context of prosecution for illegal entry, the term ‘reasonable
excuse’ should be understood in line with the expression ‘good
cause’ found in Article 31(1), and incorporated into UK legislation
in Section 31 of the Immigration and Asylum Act 1999. During UNHCR’s
Global Consultations on International Protection, the Expert Round
Table’s Summary Conclusions on Article 31 recognised having
a well-founded fear of persecution as in itself a ‘good cause’
for illegal entry. To ‘come directly’ from the home
country via another country or countries in which an asylum seeker
is at risk or in which generally no protection is available, was
also accepted as ‘good cause’ for illegal entry. It
was further concluded that there may be other factual circumstances
which constitute ‘good cause’. This approach should
be reflected in the draft guidance.
Furthermore,
a person fleeing from persecution will often have arrived with the
barest necessities and very frequently even without personal documents.
There may also be statements made by the individual that are not
susceptible to proof. The requirement of proof should thus not be
too strictly applied in view of the difficulty of proof inherent
in the special situation in which an asylum seeker finds him or
her self. In the United Kingdom, the appropriate standard has been
settled as that of ‘reasonable likelihood’. Thus, in
order to ensure that refugees are protected in accordance with Article
31(1), the level of proof for a ‘reasonable excuse’
under Clause 2 should be set no higher than the ‘reasonable
likelihood’ level used in asylum cases.
Draft
guidance: Paragraphs 2.2.1 and 3.2.1 – Redraft last sentence
of paragraphs to make clear the appropriate level of proof for
a ‘reasonable excuse’ is no higher than ‘reasonable
likelihood’.
The
question of whether an excuse is ‘reasonable’ (and whether
non-compliance with the instructions of a facilitator was ‘unreasonable’)
is inherently subjective and requires a careful assessment of individual
circumstances. This must take account of an individual’s experiences
in their country of origin as well as during the journey. Factors
such as culture, gender, age, social status and education will also
be crucial to determining the context within which individual behaviour
can be seen as ‘reasonable’ or otherwise.
Draft
guidance: Paragraphs 2.3.1 and 3.3.1 – add a paragraph highlighting
the crucial importance of such considerations to an assessment
of ‘reasonable excuse’ and providing helpful examples.
Draft
guidance: Paragraphs 2.3.1 and 3.3.1 (Offences on arrival), fourth
indented sub-paragraph – a person who has been travelling
on a false immigration document is unlikely to report it as stolen
or lost. Remove word ‘substantiate’. Replace with
words ‘demonstrate to the appropriate standard’.
Non-Compliance
with Facilitator’s Instructions
In
addition to the factors outlined in the consideration of ‘reasonable
excuse’, the question of whether it is ‘unreasonable’
to expect non-compliance with a facilitator’s instructions
must take account of the peculiar relationship of dependency, albeit
unwanted, that often exists between an asylum seeker and the facilitator.
Because reliance upon a facilitator or trafficker is often the only
means for an asylum seeker to leave the country where they are being
persecuted, the ensuing relationship is one rooted in both desperate
trust and desperate fear. The exploitation and abuse that traffickers
can inflict within this ‘terrifying and traumatic experience’
is widely recognised, and it is important to acknowledge the lack
of understanding and control that an asylum seeker is likely to
have at the point of arrival in the UK. Article 31 exists precisely
to prevent the prosecution of asylum seekers who have had to avail
themselves of such methods.
Draft
guidance: Paragraphs 2.3.1 and 3.3.1 (Offences on arrival) - add
an indented paragraph reflecting these considerations, in particular
dealing with the position of women, children, the elderly and
persons with mental disabilities or otherwise suffering from traumatic
disorders.
Draft
guidance: Paragraphs 2.3.1 and 3.3.1 (Offences on arrival), first
indented sub-paragraph – remove the words ‘there may
be exceptional situations’. This gives the incorrect impression
that it will generally be reasonable to expect non-compliance
with the instructions of a facilitator or trafficker when in fact
the opposite is more likely to be true. Replace with text: ‘it
is important to be aware of situations’. Also remove the
bracketed sentences: ‘(for example this may be the case
for some unaccompanied minors, or for someone with a mental disability).
(See 2.3.1.3)’. This incorrectly suggests that it would
be unreasonable for asylum seekers who are not children or do
not have a mental disability to not comply with the instructions
of their facilitator.
In
the second and third indented sub-paragraphs of Paragraphs 2.3.1
and 3.3.1 (Offences on arrival), UNHCR strongly disagrees with the
implication that it is only unreasonable to expect an adult asylum
seeker not to comply with the instructions of a facilitator in the
face of violence, or threatened violence. The act of fleeing persecution
is a chaotic and disorienting experience, and asylum seekers are
extremely vulnerable to the various forms of duress and coercion
exerted by facilitators. The implication that in order to avoid
criminal prosecution upon arrival in the United Kingdom refugees
must have exposed themselves to the possibility of violence by not
complying with a facilitator’s instructions sets an irrational
and dangerous standard.
Draft
guidance: Paragraphs 2.3.1 and 3.3.1 (Offences on arrival), second
and third indented sub-paragraphs - add an additional paragraph
to the effect that: ‘An individual may also be able to rely
upon the defence of reasonable excuse if, for example, there was
a document, but the document was taken away without the informed
consent of the individual’
All
Purposes in Connection with Journey/Never Having Had an Immigration
Document
Contrary
to Clause 2, Article 31(1) requires neither:
a) that an asylum seeker producing a false immigration document
upon arrival to the country of asylum show it to have been used
for all purposes in connection with his or her journey to the country
of asylum; nor
b) that an asylum seeker who is not able to produce an immigration
document upon arrival to the country of asylum show that he travelled
to the country of asylum without having possession of an immigration
document at any stage.
Imposing
such restrictions fails to take into account the fact that asylum
seekers may routinely have to resort to various methods of travel,
both conventional and unconventional, in order to reach safety,
and that different methods may have to be employed at each stage
of the journey. Very often persons who are of special interest to
a regime find it difficult, if not impossible, to either apply for
a passport or to leave their country in a regular manner. Hence,
the use of forged or irregular documents and departure by irregular
means are common methods used by asylum seekers to arrive in a country
of asylum.
Draft
guidance: Paragraphs 2.3.1 and 3.3.1 (Offences on arrival) of
the draft guidance - in order to comply with Article 31(1) add
the following paragraphs to the list of ‘reasonable excuses’:
‘An individual may be able to rely upon the defence of “reasonable
excuse” if they have used a false immigration document to
travel to UK, or if they do not have a valid immigration document,
but have presented themselves to the authorities without delay
and show good cause for their illegal entry.’
Draft
guidance: Paragraphs 2.3.2 and 2.3.3 (and 3.3.2 and 3.3.3) should
be deleted and replaced with text referring the reader to the
guidance on ‘reasonable excuse’ at paragraph 2.3.1
(Offences on arrival) (and for 3.3.2 and 3.3.3 to paragraph 3.3.1
(Offences on arrival)).
If
the above paragraphs are retained, then the following clarifying
amendment should be made to the draft guidance:
Draft
guidance: Paragraph 2.3.2, second sub-paragraph – add: ‘However,
under these circumstances, the person may be able to rely upon
a different defence, such as proving that s/he has a reasonable
excuse for not being in possession of a false immigration document’.
Children
and Other Vulnerable Groups
Children
seeking asylum, particularly if they are unaccompanied, have often
had little or no choice in the decisions that have led to their
predicament and vulnerability. As a result they are entitled to
special care and protection. For these reasons, UNHCR strongly opposes
the detention of asylum seeking children, particularly those who
are unaccompanied in the country of asylum. Whilst UNHCR understands
that Clause 2 is designed to penalise those who do not co-operate
with the immigration authorities, the draft guidelines do not provide
sufficient safeguards to ensure that children between the ages of
10 and 18 are not wrongfully prosecuted and imprisoned.
Draft
guidance: Paragraphs 2.3.1.2 and 3.3.1.2, third sub-paragraphs
– at the end of the sub-paragraph add: ‘As a result,
it should be presumed that being a separated child will be sufficient
to satisfy the defence of “reasonable excuse”.’
Draft
guidance: Paragraph 3.3.1.2, third sub-paragraph – remove
the following sentences: ‘However, we do not want to exclude
minors from this offence. It may be the case that the elder child
is fully aware of the need for a passport and has purposefully
destroyed or disposed of the document’.
Draft
guidance: Paragraph 2.3.1.2, fourth sub-paragraph – neither
a Chief Immigration Officer nor the local prosecution unit possess
the expertise to assess a child’s level of maturity and
understanding. UNHCR would recommend that appropriate evidence
(e.g. from a panel comprising relevant experts) be obtained in
order to assess the maturity of the child and whether the relevant
defences apply.
Draft
guidance: Paragraph 2.3.1.1 is extraneous and should be deleted.
Draft
guidance: Paragraph 2.3.1.3, second sub-paragraph – delete
the words ‘in some circumstances’ in the second sentence.
We sincerely hope that our comments on this matter will be given
due attention in order to ensure the United Kingdom’s proper
adherence to its international legal obligations under the 1951
Convention.
UNHCR
London
July 2004
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