In the absence of legal means by which to enter countries of sanctuary, refugees resort to the use of irregular means of entry. Some will falsely apply for and obtain a visit or student visa and then apply for asylum once within the UK. Others will use clandestine means to enter the UK, for example in the back of a lorry. Some have resorted to swimming, with tragic consequences, and one Sudanese man, Abdul Rahman Haroun, is now reported to have walked the length of the Channel Tunnel.

Mr Haroun is said to be facing charges under the Malicious Damage Act of 1861. Most of this rather aged statute has been repealed and it seems it must be section 36 under which the charges are being brought:

Obstructing engines or carriages on railways

Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years…

Illegal entry by refugees is an age old story. Sir Nicholas Winton resorted to forging documents in order to save Jewish children from Nazi concentration camps in 1939, an act for which he was eventually knighted. On his death he was described as a “great man” by Prime Minister David Cameron. Paddington Bear stows away and undoubtedly enters the UK unlawfully at the beginning of his well documented adventures.

The drafters of the 1951 UN Convention Relating to the Status of Refugees, usually known as just ‘the Refugee Convention’, recognised the problems that refugees would face in reaching safety. Article 31 of the Convention protects refugees against prosecution for illegal entry:

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.

In the landmark case of R v Uxbridge Magistrates Court (ex parte Adimi) [1999] Imm AR 560 Lord Justice Simon Brown held that refugees did not have to claim asylum in countries through which they pass to reach safety in order to be protected by Article 31:

… I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s Executive Committee (‘ExCom’), and the writings of well-respected academics and commentators (most notably Professor Guy Goodwin-Gill, Atle Grahl-Madsen, Professor James Hathaway, & Dr Paul Weis), that some element of choice is indeed open to refugees as to where they may properly claim asylum.

Protection from prosecution was incorporated into UK law with section 31 of the Immigration and Asylum Act 1999. This provides a defence based on Article 31 against charges based on various documents offences. It does not provide a defence to the crime of obstructing engines or carriages on railways, however. In fact, there are quite a few offences with which refugees and trafficking victims have been charged in recent years that are not covered by section 31. UK prosecutors have proven quite industrious in trying to find offences that are not covered by section 31 with which a refugee might be prosecuted.

In the case of R v Asfaw [2008] UKHL 31 the House of Lords recognised the gap in protection of refugees left by section 31 and held that, because of the UK’s obligations under Article 31 of the Refugee Convention, it was an abuse of process to prosecute a refugee for offences related to entry to the UK. In that particular case, the offence was attempting to obtain services by deception, contrary to section 1(1) of the Criminal Attempts Act 1981. The particulars were that Ms Asfaw, a refugee from Ethiopia, had dishonestly attempted to obtain air transport services from Virgin Atlantic. She had been convicted and sentenced to nine months in prison, but her conviction was overturned by the House of Lords.

The problem of wrongful prosecutions and convictions of refugees has continued, however, as the case of R v Mateta & Ors [2013] EWCA Crim 1372 was to show. Lord Justice Leveson expressed his concern that “neither solicitors nor counsel appear to have been aware of the position in law and we repeat that this situation should not recur in the future.”

Lord Leveson;'I want to kill this problem stone dead'-not the media but abuse of law which has led to wrongful convictions of asylum seekers

— simon israel (@simonisrael) July 30, 2013

The Criminal Cases Review Commission has expressed its concerned that hundreds of asylum seekers have been wrongly convicted in what it considers “a significant and potentially widespread misunderstanding or abuse of the law”. This is an issue on which my former colleague Samina Iqbal has previously written on Free Movement, as have I.

The prosecution of Mr Abdul Rahman Haroun for an obscure nineteenth century railways offence is inappropriate and wrong. 79% of Sudanese asylum seekers are recognised in the UK as refugees according to the latest statistics. Like all refugees, he should be immune from prosecution for irregular means of entry to a country of sanctuary. At the very least his over hasty and over zealous prosecution should be put on hold while his asylum claim is determined.