The recent Court of Appeal judgment R v Mateta and others [2013] EWCA Crim 1372 is the most recent case of wrongful convictions of refugees who have been prosecuted for offences relating to entry to or exit from the UK – typically false passport offences – in a flight from persecution.

Four of the convictions were referred to the court by the Criminal Cases Review Commission (CCRC), a body which investigates suspected miscarriages of justice. This brings to 20 the number of asylum cases referred by the CCRC to appeal courts. Twelve cases have been referred to Isleworth Crown Court and one to Croydon. A further seven cases have been referred to the appeal court, including R v Mohammed and Osman [2007] EWCA Crim 2332. Many of the cases have involved offences to which there is a defence under section 31 of the Immigration and Asylum Act 1999, as was the case in Mateta. In none of these cases was the refugee adequately advised about the defence in section 31 of the act. In other cases, such as Osman, involving section 2 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, asylum seekers and refugees have not been advised that they may have a ‘reasonable excuse’ defence.

While defence lawyers have been blamed for a failure to advise in Mateta (and also in R v MA [2010] EWCA Crim 2400), they face real difficulties in advising clients who, on arrival to the UK, have yet to have their asylum claims determined. Accounts of persecution may only emerge gradually. Prosecutors also have a duty to consider whether an asylum seeker may have a defence under section 31 of the 1999 act. Although the Crown Prosecution Service has revised its guidance in relation to section 31, the CCRC is aware that asylum seekers continue to plead guilty to offences in circumstances which suggest that they have a potential defence.

The Mateta judgment is useful in the guidance it provides on the phrase ‘coming directly’ in section 31 of the 1999 act, particularly in relation to the cases of Ghavami and Afshar. They spent the equivalent of three and a half months transiting countries on their way to the UK (which, in fact, was also a transit point as they had intended to travel to Canada).

The first two cases which the commission referred to Isleworth Crown Court (in 2005) concerned a couple from Libya who had spent two years in Denmark where they had made a claim for asylum. However, when they realised that the Libyan authorities had tracked them to Denmark, they left immediately and attempted to get to Canada via Heathrow where they were stopped and arrested. Human rights reports about the ability of Libyan agents to track – and even kill – dissidents abroad revealed them to be in potential danger in Denmark despite their two-year stay. Their convictions were quashed by the Crown court. While that case is not an appeal court case, it is noteworthy nevertheless that the Crown court accepted that the couple had ‘come directly’ despite the stay in Denmark.

It is clear from the travaux préparatoires (or working papers) of article 31 of the Refugee Convention, from which the section 31 defence is derived, that the phrase ‘coming directly from a territory where their life or freedom was threatened in the sense of article 1’ was inserted by the French delegation at a late stage, to limit article 31 to those who had become refugees as a result of events before January 1951.

The original definition of ‘refugee’ in the convention was limited to refugees who were such as a result of events occurring before January 1951. There was a consensus that the ‘coming directly’ phrase was intended to apply to all refugees, except those who had obtained permanent or temporary refugee status and who, for example, would therefore have travel papers. It was intended to exclude those who had obtained refugee status but who nevertheless travelled without papers on a personal whim. The 1967 Protocol removed the temporal and geographical limitation (although a few states, such as Turkey, retain the geographical limitation, only recognising refugees from Europe). By removing the temporal limitation, much of the force of the ‘coming directly’ phrase has been removed. The prevalence of agents on whom asylum seekers and refugees are dependent has further weakened its relevance. It is interesting that in Spain, the incorporation of article 31 into national law makes no mention of ‘coming directly’.

The Mateta judgment also considered the burden of proof in relation to section 31(7) although, in fact, all those in this case had been recognised to be refugees. Section 31(7) states that a person who has had a negative asylum determination by the secretary of state is not a refugee ‘unless he shows that he is’. The appeal court in Mateta held that where no initial determination has been made, the refugee must provide sufficient evidence to raise the issue. However, where a negative asylum decision has been made, the legal burden of proof is on the refugee to establish that he is a refugee on a balance of probabilities.

The CCRC will have to address these differing burdens of proof in cases where applicants have had no asylum decision or a negative decision. In cases involving section 2 of the 2004 act (which are, of course, distinct from section 31 cases), where showing that a person is a refugee will provide a ‘reasonable excuse’, the burden will be lower than the balance of probabilities as section 2 has no equivalent to section 31(7).

Lord Justice Leveson made clear his annoyance with the fact that refugees continue to be deprived of running a defence under section 31. It is to be hoped that this judgment marks the beginning of the end of the practice – in relation to both section 31 of the 1999 act and section 2 of the 2004 act.

 Yewa Holiday is a lawyer at the CCRC