Scotland’s new prosecutorial guidance and refugees

21 December 2015 by Guest Contributor

Emily Baxter:  Earlier this month, Scotland’s Lord Advocate announced new prosecution guidelines designed to protect refugees fleeing persecution. These help give effect to the UK’s obligations under Article 31 of the 1951 Refugee Convention, which states that:

 “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.”

Section 31(1) of the Immigration and Asylum Act 1999 (“the Act”) already provides a defence for refugees who commit certain offences in order to gain entry to the country. The new guidelines provide direction for Scottish prosecutors when considering cases in which this defence may arise. They reiterate the importance of the public interest test for prosecution when considering the particular vulnerabilities of refugees “even when the criteria of section 31 are not strictly met.”

The guidelines also potentially broaden the application of the defence in Scotland, both in terms of the offences to which it applies and the classes of people who may rely on it.

Section 31(4) of the Act states that in Scotland that defence applies to the following offences:

– Fraud

– Uttering a forged document

– Section 4 or 6 of the Identity Documents Act 2010

– Section 24A of the Immigration Act 1971 (deception)

– Section 26 (1)(d) of the Immigration Act 1971 (falsification of documents)and

– Any attempt to commit any of those offences

However, the guidelines state that “other offences may well be covered by the defence if committed to facilitate entry to the United Kingdom in connection with a flight from persecution”, such as charges involving giving false details to facilitate entry.

Additionally, while the Act only refers to a defence for refugees the guidelines suggest the protection afforded by section 31 can be extended to those who are not refugees or asylum seekers. Examples given are stateless persons or those who cannot are granted leave to remain on humanitarian grounds.

The full guidelines are available here: http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/COPFS%20Refugees%20Policy.pdf

Comment:

 The guidelines support and extend the application of the existing defence in section 31(1) of the Act.

However, they also reiterate that the following criteria should be met:

1. The person has come to the UK directly from a country where his or her life or freedom was threatened within the meaning of the Refugee Convention;
2. The person presented him or herself to the authorities in the United Kingdom without delay;
3. The person had good cause for his or her illegal entry or presence;
4. The person has made a claim for asylum as soon as reasonably practicable after arrival in the United Kingdom;
5. If the person stopped in another country outside the UK having left the country where his or her life or freedom was threatened, that he or she could not reasonably have expected to be given protection under the 1951 Convention in that country; and
6. The person claimed asylum after having committed the offence from which he or she seeks protection from conviction.

The first criterion may be particularly difficult for many refugees to prove on the balance of probabilities, and will be controversial in light of the growing “refugee crisis”. For example, in September the European Parliament overwhelmingly voted in favour of a Resolution on Migration and Refugees in Europe 2015/2833(RSP) calling in the European Commission to reform the “Dublin rules” which require refugees to claim asylum in the first EU state the reach. Time will tell as to whether the new guidance has a salutary impact on the practical ability for refugees to settle in Scotland.