Offences under
sections 2 and 35 of the Asylum and Immigration (Treatment of Claimants, etc.)
Act 2004 came into force on 22nd
September 2004.
The following is a
brief guide to the offences and in particular, to the immigration aspects of
the case that criminal practitioners should bear in mind when advising a client
charged with one of the offences (or with other immigration offences).
Further information
can be obtained by contacting ILPA (Immigration Law Practitioners Association –
see below for details) and the guidance to the offences issued by the Home
Office for Immigration Officers is available on the ILPA website (www.ilpa.org.uk).
Note on credibility: issues of credibility are vital in
immigration proceedings. s8 AI(ToC etc) Act 2004 provides that certain
behaviour (e.g. failure to produce a passport without reasonable excuse) will
damage a client’s credibility in their asylum and human rights claim. Criminal
proceedings based on such behaviour (e.g. under s2 AI(ToC etc) Act 2004) will have an adverse impact on the asylum or human rights claim. Therefore
the outcome of the criminal case will be crucial to the asylum/human rights
proceedings - representations to prevent proceedings continuing or clear
indication of any defence will be essential (see below at 3) for text of s8).
S2 introduces an
either-way criminal offence where “at a leave or asylum interview” a
person does not have with them an immigration document (i.e. a passport or a
document which is designed to serve the same purpose as a passport”), which “is
in force and satisfactorily establishes his identity and nationality or
citizenship”. The offence can also be committed if the person does not
have such a document in respect of a dependant child with whom they “claim to
be travelling or living”.
The offence may be
committed:
Defences:
It
is a defence to:
*The
guidance to the offence states “It is not
the intention of the offence to penalise those who never had an immigration
document during the course of their journey to the United Kingdom, or those who
use a false immigration document (e.g. a false passport) to travel to the
United Kingdom and who produce that document on arrival” (IND guidance,
para 2.1.3 ). (But NB there are other offences regarding the use of false
immigration documents – and note the Article 31 Refugee Convention protections
and the statutory defences in s31 Immigration and Asylum Act 1999 – for more
information see contacts below and CP Newsletter issue # 56 p2)
The same defences
apply in relation to the offence in respect of a dependant child.
CPS to assess facts
on case by case basis with regard to usual tests on prospects of successful
prosecution, evidential sufficiency and public interest.
Note:
“The fact that the
document was deliberately destroyed or disposed of is not a reasonable excuse
for not being in possession of it or for not providing it (see below) unless it is shown that the destruction
or disposal was –
“reasonable cause”
does not include:
·
delaying the handling
or resolution of a claim or application or the taking of a decision,
·
increasing the
chances of success of a claim or application, or
·
complying with the
instructions or advice given by a person who offers advice about, or
facilitates, immigration into the United Kingdom, unless in the circumstances of the case it is unreasonable to expect
non-compliance with the instructions or advice. (s2(7)(b))
Examples of reasonable excuse
given are:
The
individual is not in control/possession of passport because someone else in “a family group” is holding the document.
“exceptional
situations” where is not unreasonable to expect non-compliance with the
instructions of someone advising or facilitating immigration into the United
Kingdom e.g.” some unaccompanied minors,
or for someone with a mental disability” (see below)
“Situations
where a person can show that he was threatened
or intimidated to such an extent that he could be reasonably considered to
have been forced to have destroyed or disposed of his document”. Facilitator
may have threatened/intimidated client in variety of ways – full instructions
will be needed.
“the
document has been lost or stolen and the individual can substantiate such a
claim”.
In-country cases where the
document is not produced within 3 days:
In
addition to the defences listed above, the guidance also states that there
might be other explanations for non-production in in-country cases:
All
these reasons will require substantiation and the person will be required to
produce the document “as soon as practicably possible”.
On conviction on
indictment – max 2 years*/fine/both
Summary conviction –
max 6 months/fine/both (12 months when s154 CJA 2003 is commenced)
*Note: Potential exclusion from refugee
protection altogether under S72 Nationality, Immigration and Asylum Act 2002 –
“If a person found guilty of an offence
under section 2 were sentenced to the maximum 2 years’ imprisonment, he could,
for the purposes of Article 33(2) of the Refugee Convention, be presumed to
have been convicted by a final judgment of a particularly serious crime and to
constitute a danger to the community of the UK by virtue of section 72 of the
Nationality, Immigration and Asylum Act 2002. However, a presumption that a
person constitutes
a danger to the community is rebuttable”[letter from Home Office accompanying
guidance to Immigration Officers dated 21st September 2004].
IND has indicated
that the pursuit of these offences will be supervised initially (for the first
6 months) by teams at Heathrow, Gatwick and the Asylum Screening Unit, Croydon.
The procedure that is envisaged is as follows:
1) Where a person is encountered leaving the aircraft by a
surveillance officer or presents themselves to the immigration authorities
without a document, they will be asked brief questions by an immigration
officer as an additional element of the usual screening process* [IND call this
the “initial designated administrative procedure”]. (The usual screening
process takes place via the completion of a form to establish identity/method
of travel). The aim of these additional questions is apparently to establish
whether “it is considered that an offence under subsection (1) has been
committed and it is considered likely that the person does not have a defence,
and no other mitigating factors apply, such as those in respect of vulnerable
persons” [IND guidance para 3.5.1]..
*Note: these questions are NOT conducted under PACE, there is no right to legal representation but they do relate to potential commission of an offence and clearly go beyond an initial suspicion in respect of the offence. Therefore it is essential that criminal practitioners obtain a copy of this interview. It is assumed that reference to such an interview will NOT be admissible in subsequent proceedings (see below).
2) If the Immigration Officer does not think there is such a
defence/mitigating circumstances, reference is made to the Chief Immigration
Officer who will discuss the case with the prosecution unit/police with a view
to whether arrest should take place.
3)
If the person
is arrested they will be taken to the police station and interviewed under
caution and PACE codes will apply.
Note:
·
criminal
practitioners should obtain details of the earlier interview conducted on
entry. A copy of the screening form containing the additional questions should
be requested (a copy should have been provided to the individual in any event).
·
Senior immigration
officials have indicated that they are aware that PACE code protections will
not apply at the earlier interview (as it is an “administrative procedure”) and therefore will attempt to keep that
interview “brief” and conduct substantive questioning in the police station.
The legal difficulties of this approach and lack of protection available to the
client will be apparent to criminal practitioners.
·
It is essential that
advisors explore all potential defences with suspects and ensure that these are
placed on record. It is open to the advisor at the police station to make
representations as to the continuation of proceedings (in particular see
comments below re vulnerability, minors, women asylum seekers).
These cases will
occur where a person attends the Asylum Screening Unit.
1) A screening interview will take place and a record of that
interview should be requested. In in-country cases where a person is unable in
the first instance to produce a document they will be asked to do so within 3
days.
2) If on returning to the ASU they are unable to produce the
document (or they indicate at the initial
interview that they will be unable to produce the document) they will be
asked further questions with a view to potential reference for prosecution
(again this record should be requested) and if pursued:-
3) An interview would then be conducted at a police station
under caution.
Issues to consider:
Client’s status
This
offence applies at either a “leave or asylum interview”. Establish whether the
client is an asylum seeker.
If
client is an asylum seeker (i.e. the claim is that to remove or require him to
leave the United Kingdom would breach the United Kingdom’s obligations under
the Refugee Convention or would be unlawful under section 6 of the Human Rights
Act 1998, as being incompatible with his Convention rights) there are issues of
vulnerability since all persons fleeing persecution will be in a heightened
state of vulnerability and this should be taken into account when assessing the
reasonableness of a persons actions.
If
client is not an asylum seeker establish on what basis they are seeking leave.
They may be vulnerable or there may be other relevant factors.
Minors
Issues
of vulnerability. Note the guidance “It
would be unreasonable to expect the same level of understanding from minors as
we do from adults. Not only could some
children not be expected to challenge the advice or instructions of a
facilitator or another adult with whom they may be travelling, but they may not
understand they need a passport or the consequences of destroying or disposing
of it en route to the United Kingdom” [IND guidance para 2.4.1].
Be
aware of the issues involved in an assessment of level of maturity and in
particular age disputes (for further information on age disputes, see contacts
below).
Also
issues re PACE code providing for appropriate adult to age 17 but minor defined
as under 18 in asylum/immigration proceedings (see IND letter 21/9/04) and
consider the vulnerability of young asylum seekers of 17 and over.
“In some circumstances persons with learning difficulties or
a disability may be particularly dependent on the person who advised them on or
facilitated their travel to the United Kingdom. In such circumstances it may be unreasonable to expect
non-compliance with instructions or advice”
[IND guidance 2.4.2].
Be aware of other
potentially vulnerable persons e.g. women, trafficking victims and also
increased possibility that possession of the document was beyond their control.
“In all cases, not just those involving
women and/or children, the individual circumstances of the case (including
culture, gender, age, and education) will be taken into consideration..” (IND
letter dated 21/9/04)
Trafficking victims
refer to trafficking toolkit -(http://www.crimereduction.gov.uk/toolkits).
Senior officials state that it is not the intention to run contrary to the policy
regarding trafficking i.e. trafficked people should be considered as victims
rather that criminalized.
Threats etc.
People dependant on
facilitators may often be particularly susceptible to
threats/intimidation/coercion.
Asylum/Human Rights
proceedings
Be
aware of the following:
o
In all circumstances
specialist immigration representation is essential. Liaison with immigration
representatives will also be essential in respect of
defences/representations/mitigation
o
IND
intention is to run proceedings “in tandem” – this means that prosecution will not be deferred by IND until after the outcome of an asylum claim or vice
versa.
o
An
on-entry client’s new claim for asylum may be processed extremely quickly under
fast track procedures. An in-country client may already have an on-going
asylum/human rights application.
o
Also
note “This will mean that if any relevant
information should come to light during the course of the leave or asylum
decision-making process, including the initial decision, this information will
be passed to the unit which initiated the prosecution” (IND letter dated
21/9/04)
o
The
outcome of criminal proceedings will have an impact on the asylum or other
claim – conviction will damage credibility (s8 new AI (ToC etc) Act 2004) – see
note above and more detailed text at 3) below.
References:
o Guidance issued to immigration officers
on s2 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
o Letter from IND 21/9/04
2) S35 – introduces an offence of
non-co-operation with action to obtain an immigration document for the purpose
of facilitating the person’s deportation or removal. This is an either way
offence (penalties as for s2).
“The Secretary of State may require a
person to take specified action if the Secretary of State thinks that:
- the action will or may enable a travel
document to be obtained by or for the person and
- possession of the travel document will
facilitate the persons deportation or removal from the UK” (s35
(1))
The
offence is committed if a person fails without reasonable excuse to comply with
the Secretary of State’s requirements regarding the obtaining of a travel
document (s35(3)).
The
Secretary of State may require a person to:
-
provide
information or documents to the Secretary of State or to any other person
-
obtain
information or documents
-
provide
fingerprints, submit to the taking of a photograph or provide information or
submit to a process for recording information about external physical
characteristics (including in particular features of the iris or any other part
of the eye)
-
make
or consent to or co-operate with the making of an application to a person for
the government of a State other than the United Kingdom
-
co-operate
with a process designed to enable determination of an application
-
complete
a form accurately and completely
-
attend
an interview and answer questions accurately and completely
-
make
an appointment (s35(2))
IND
guidance states “the above list is not
intended to be exclusive. While these are examples of specified actions a
person may be most commonly required to take, the offence is not
limited to these actions. The Secretary of State may require a
person to take any specified action so long as he thinks it will or may enable
a travel document to be obtained and it will facilitate deportation/removal”. (IND guidance para 7.1).
“At an interview under caution, questions
should concentrate on the person’s intentions and whether or not he had a
reasonable excuse for failing to comply with the actions he was required to
take”. (IND
guidance para 7.2)
Reasonable excuse
Prosecution
will have to prove beyond reasonable doubt that D did not have an excuse or
that the excuse was not reasonable.
Examples
of reasonable excuses given:
·
emergency
medical care – therefore unable to attend an interview or appointment or unable
to provide information
·
transport
problems preventing travel to a consulate or embassy
Proof
would be required
Power
of arrest without warrant for immigration officers. Offence is treated as
relevant as regards powers under IAA 1999 to search before and after arrest.
Note: PACE Code C,
7.4
“Notwithstanding the provisions of the
consular conventions if the detainee is a political refugee whether for reasons
of race, nationality, political opinion or religion or is seeking political
asylum consular officers shall not be informed of the arrest of one of
their nationals or given access or information about them except at the
detainees express request”.
IND have said that
they may invoke s35 to require cooperation with redocumentation before appeal
rights are exhausted . This is very problematic in cases of asylum or human
rights. A client’s country authorities must not be contacted if there
are outstanding proceedings and indeed even if claim is no longer pending,
clients will often have concerns for the safety of family and friends in
country of origin. This may amount to a reasonable excuse and should be
explored fully with the client. In most
cases, the client should have an immigration advisor and liaison will be
essential.
In all cases the
prosecution of minors for immigration offences should be resisted. It should be assumed that there will bebe
significant issues of vulnerability (see notes on s2 also). It is essential
that the young person has access to specialist immigration advice.
Age disputes may
arise both during immigration interviews/questioning and in the police station.
(refer here to recent age assessment cases) It is essential that an appropriate
age assessment is carried out if age is disputed as failure to do so may have a
serious impact on decisions to prosecute and the assessment of claim.
Note IND guidance:
-
removal would not be
enforced against a minor “unless we were
satisfied that the child would be met on arrival in his or her country and that
care arrangements were in place thereafter” and
-
“If there was evidence that care arrangements were seriously below the
standard normally provided in the country concerned or they were so inadequate
that the child would face a serious risk of harm if returned, consideration
would be given to abandoning enforcement action”
ð
no application for
re-documentation, the offence would not arise.
Reference to a senior
caseworker or inspector in the case of an unaccompanied minor is required by
the guidance.
1
Where a specified
action is required, request to the person must be made in writing
detailing what it is they are being asked to do, why and the consequences of
failure
2
All requests should
be detailed on the case file together with any explanation from the person (IND
guidance points to CPS relying on evidence in file)
3
Requests to attend an
interview must be made in writing
4
If an explanation is
offered it must be investigated
5
If a person attends
an interview and then refuses to answer questions, they must be cautioned and
PACE followed if the officer suspects that an offence has been committed
6
Reference must be
made to senior caseworker/inspector if a prosecution is contemplated who will
then consult Deputy Director
ð
the guidance points
to the fact that co-operation will not always be required if a country can
document the person without it: “even if
a person has previously failed to comply with requirements made by the
Secretary of State, removal would usually be preferable to prosecution)”.
3)
s8 claimant’s credibility
(s8(7),(10),(11) in force 01.10.04 for purpose of allowing Secretary of State
to exercise power to make subordinate legislation under S8(7) for
implementation of section)
*Applies to asylum and human rights claims
Sets out provisions
relating to behaviour to be taken into account as “damaging the claimant’s
credibility” by a “deciding authority” (i.e. the Home Office or immigration
adjudicator/judge or SIAC) :
S8(1) “In determining whether to believe a
statement made by or on behalf of a person who makes an asylum claim or human
rights claim, a deciding authority shall take account, as damaging the
claimant’s credibility any behaviour to which this section applies”
S8(2) Any behaviour
the deciding authority thinks “is
designed or likely to conceal information, is designed or likely to mislead or
is designed or likely to obstruct or delay the handling or resolution of the
claim or the taking of a decision in relation to the claimant”.
S8(3) Without
prejudice to the generality of S8(2) “the
following types of behavior shall be treated as designed or likely to conceal
information or to mislead –
a)
failure without reasonable explanation to produce a passport
on request to an immigration officer or to the Secretary of State,
b)
the production of a document which is not a valid passport
as if it were
c)
the destruction, alteration or disposal in each case without
reasonable explanation, of a passport
d)
the destruction,
alteration or disposal in each case without reasonable explanation, of a ticket
or other document connected with travel
e)
failure without reasonable explanation to answer a question
asked by a deciding authority
s8(4) “failure to take advantage of a reasonable
opportunity to make an asylum claim or a human rights claim while in a safe
country”
s8(5) “failure to make an asylum claim or a human
rights claim before being notified of an immigration decision unless the claim
relies wholly on matters arising after the notification”
*Note: be aware of potential difficulties that can arise in immigration cases regarding notification.
s8(6) failure to make
an asylum claim or a human rights claim before being arrested under an
immigration provision unless –
a)
“he had no reasonable opportunity to make the claim before
the arrest or
b) the claim
relies wholly on matters arising after arrest”
ILPA would very much
like feedback from criminal practitioners on the implementation of these
offences. Rosie Brennan is
co-ordinating liaison with criminal practitioners on this offence and other
aspects of immigration law in the police station/criminal proceedings and can
provide further information for criminal practitioners.
Contact details:
Rosie Brennan c/o
ILPA, Lindsay House, 40-42 Charterhouse Street, London EC1M 6JN
020 7251 8383
Email: info@ilpa.org.uk - mark for attention Rosie
Brennan or rosiebrennan@fsmail.net
Rosie Brennan/Syd
Bolton
Dated: 22.9.04
(updated 10.12.04)