Refugees fleeing persecution in their home country cannot afford to be scrupulous about the means by which they reach sanctuary in another country. This truism was recognised by the drafters of the Refugee Convention: Article 31 affords refugees protection from prosecution for unlawful entry to a sanctuary state providing certain conditions are met. Article 31 is given effect in UK law by section 31 of the Immigration Act 1999 and offers refugees a defence to most criminal charges connected to their entry, for example by using false documents.

Nevertheless, UK prosecutors have for years been overzealous in prosecuting asylum seekers for unlawful entry offences. There have been a string of cases where the higher courts, even the House of Lords in the case of R v Asfaw [2008] UKHL 31, have castigated prosecutors, criminal defence lawyers and judges for allowing these cases to come to court without the asylum seeker being permitted to run a proper defence. In scores of cases refugees have pleaded guilty without knowing that they had a defence available.

In the case of R v Mateta & Ors [2013] EWCA Crim 1372 the Court of Appeal has overturned yet further convictions, this time for the offence of use of false identity documents. Ironically, in four of the five cases the individuals were trying to leave the UK, having only stopped here in transit. All five had been recognised as refugees after they had pleaded guilty. Lord Justice Leveson, who delivered the leading judgment, is reported to have said that he wanted to kill the problem of these unjust convictions “stone dead”:

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

To achieve that end he gives detailed guidance on the defences available and how they operate. He explicitly criticises the unnamed* defence lawyers who let down their clients so badly:

it is both surprising and disturbing 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.

For some reason, no mention is made of the prosecutors nor the judges.

Sadly, this issue recurs every few years. Despite Lord Justice Leveson’s best endeavours it is likely to do so again, particularly if the planned cuts to criminal legal aid go through. The only real solution is to legislate to offer proper, clear cut and unambiguous protection to refugees. Sadly, this is extremely unlikely ever to occur.

I also couldn’t help noticing that at paragraph 54 the Court (or rather the Crown, perhaps) takes an eminently sensible approach to the wider implications of a bare and unreasoned finding by the Home Office that a person is a refugee:

the Crown acknowledges that the speed with which the Home Office granted asylum (one month after the claims were recorded, and effectively ‘on the papers’) leads to the probable inference that the appellants’ joint account of the circumstances leading to their arrival in the United Kingdom is honest and credible.

This common sense approach can be contrasted with that historically adopted by the immigration tribunal in days gone by. In some rather sad and tired determinations the tribunal took the uncharitable view that a grant of refugee status by the Home Office was essentially meaningless and little could be implied or inferred from such a grant: see for example para 14 of AC (Witness with refugee status – Effect) Somalia [2005] UKAIT 00124. It is high time for that approach to be reviewed.

The Mateta case was the culmination of some fantastic work by the maligned Criminal Cases Review Commission (earlier post on this), Richard Thomas and Dan Bunting (@danbunting). It should also be said that ILPA has been trying to reach out to criminal lawyers on these issues for years.

• No Sir John Thomas is Lord Justice Leveson.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

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