The government did not take long to undermine the scope and clarity of the judgment in Adimi confirming that asylum seekers using false passports to gain access to a friendly shore had protection against conviction under article 31 of the UN Refugee Convention (R v Uxbridge Stipendiary Magistrate Stephen Day and CPS ex parte Adimi, CO/2533/99 R v CPS ex parte Sorani; R v SSHD ex parte Sorani, CO/3007/98 and CO/2742/98 R v CPS ex parte Kaziu and R v SSHD ex parte Kaziu CO/1167/99 QBD 29 July 1999).The UK ratified the convention, giving rise to a legitimate expectation that its provisions would be followed.

Article 31 provides that asylum seekers with false documents should not be penalised.

The High Court confirmed that its scope was broad: refugees should be given the benefit of the doubt.It protects people who claim asylum or where there is evidence of eligibility for asylum, not just those ultimately accorded refugee status.

Following guidance from the United Nations High Commission for Refugees (UNHCR), it can protect those who transit other countries.

It is not necessarily lost if people do not claim as soon as they arrive.The High Court was critical of defence lawyers who did not recognise and argue the protection of the convention.

For the past few years, approximately 1,000 people a year have been convicted and routinely sentenced to between six and nine months' imprisonment for travelling on false passports.

A high proportion were asylum seekers of good character who pleaded guilty on the advice of duty solicitors and were processed and jailed within 48 hours.Solicitors have evidently not been stung by the criticism into exhuming the files of all these wrongly jailed people.

Three months after the judgment, which left it to the criminal courts to expunge the convictions, Isleworth Crown Court has only had a handful of applications to appeal against convictions by Uxbridge magistrates, who were jailing a few hundred cases a year.

Chichester Crown Court near Gatwick could only report one such application by the end of September.

Isleworth is expediently adjourning appeals, referring back to Uxbridge magistrates under s.142 of the Magistrates Court Act.There are several reasons why practitioners should be on the lookout for asylum seekers who may have been wrongly convicted in the past.

For asylum seekers, the conviction is particularly damaging.

They are uniquely in need of security, being unable to count on the protection of their own government.

The fact of the conviction prejudices their asylum claim here and it is likely to bar them from admission to other countries.

Many of those arrested were in transit to Canada trying to join family there.

Even if they are allowed to stay here, a conviction can prevent them from naturalising as British citizens.The Crown Prosecution Service (CPS) took seriously the High Court's admonition that prosecutions should go forward only in the clearest cases, with the burden on the prosecution to disprove an article 31 defence once invoked.

Following swift new guidance, prosecutors appeared to be falling over themselves to keep anyone who might be an asylum seeker out of court.

The Home Office appears to have been less impressed.

The High Court expressed the view strongly that this issue had more to do with the proper administration and control of immigration and asylum than with the need to suppress and punish criminal activity generally.

After all, the Home Office not only has the expertise to recognise asylum seekers - unlike the police, CPS or the courts - but also has considerable powers to examine, detain without time limit, deport and remove unmeritorious travellers.The Home Office has reacted by inserting an 11th-hour amendment into the Immigration and Asylum Bill, enacting an article 31 'defence' in false passport cases.

It aims to minimise the protection of the convention, manifesting little respect for the judgment of the High Court, which in turn was based on authoritative guidance from the UNHCR and well-respected academics.

In addition to requiring the refugee to be coming directly from the country of persecution, to present himself to the authorities without delay and to show good cause for illegal entry (which clauses in article 31 were benignly interpreted by the High Court), the defence requires that an asylum claim be made 'as soon as reasonably practicable after his arrival in the United Kingdom'.A refugee who stops in another country en route has the burden of showing 'that he could not reasonably have expected to be given protection under the refugee convention in that country'.

A refugee 'who has made a claim for asylum' is not entitled to the defence 'in relation to any offence committed by him after making that claim'.

Again reversing the burden of proof, if an asylum claim has been refused by the Home Office, 'that person is to be taken not to be a refugee unless he shows that he is'.At face value, the Home Office defence will leave many people in need of asylum without protection against conviction, including people with perfectly meritorious claims who are refused on third country grounds.

There are no exceptions for children or torture victims.The government amendment also provides a retrospective defence for those convicted of a relevant offence, via the Criminal Cases Review Commission.Pragmatists in the police and CPS may find the Home Office contribution less than helpful.

When to prosecute or refrain from prosecuting is now even less clear.

The code for Crown Prosecutors, on which decisions to prosecute are based, does not reflect the UK's obligations under international law, although the civil service code does.There is a strong case for arguing that the public interest criteria in the CPS code should take account of UK obligations under international law.

The CPS code will be revised to take account of the Human Rights Act 1998.

One CPS source estimated that human rights argument will be taking up one-third more court time and showed no enthusiasm for adding in abuse of process arguments by asylum seekers who feel wrongly deprived of the article 31 defence.

The dubiousness of reversing the burden of proof i s a starting point for challenge.Practitioners should be aware that asylum seekers bearing false documents now need more rather than less anxious scrutiny.

Many wrongly imprisoned in the past should be acting to overturn the conviction and seek compensation.

Cases arising now have to be assessed against the statutory article 31 defence.

But that defence has to be interpreted in combination with the refugee convention and the Human Rights Act, backed up by other international humanitarian protection which the UK has endorsed, in addition to the accumulated jurisprudence.