Immigration

Revised: 19 June 2018 |Legal Guidance

Introduction

This guidance sets out the CPS policy on the prosecution of immigration offences.

The Immigration Enforcement section of the CPS Knowledge Hub contains further practical guidance and information for prosecutors, including offence typologies and a list of Area Leads.

There are three ways of dealing with illegal entrants:

  • administratively, by the Immigration Authorities i.e. Immigration Enforcement officers or the Home Office.
  • diversion by way of a Foreign National Offender Conditional Caution (FNOCC).
  • by way of criminal proceedings.

Even if criminal proceedings cannot be taken, a person may remain administratively categorised as an illegal immigrant and still be subject to deportation or removed by the Home Office under Section 3(5) or Section 4(2) Immigration Act 1971.

Immigration offences

See Annex: Table of Immigration Offences

Statutory Defences

1. Section 31 Immigration and Asylum Act 1999

Section 31 of the Immigration and Asylum Act 1999 (IAA) provides a statutory defence for refugees committing particular offences, providing they satisfy stated conditions.

The s31 defences, based on Article 31 of the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention), was an attempt by Parliament to comply with its treaty obligations. However, since s31 applies in relation to specific offences only, where a refugee commits any other offence, prosecutors should apply the approach set out in the section on “The Public Interest”. This will ensure that proper consideration is given to any entitlement to A31 protection.

The applicable offences under s31(3) are:

  • Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences).
  • Section 24A of the Immigration Act 1971 (use of deception to obtain or seek to obtain leave to enter or remain or to secure avoidance, postponement or revocation of enforcement action).
  • Section 26(1)(d) of the Immigration 1971 Act (falsification of documents).
  • Sections 4(1) and 6(1) of the Identity Documents Act 2010.
  • [Note that Sections 25(1) and (5) of the Identity Cards Act 2006 (possession of false identity documents) applied until 21 January 2011 and may still be relevant to appeals.]

The conditions that must be satisfied for the defence to apply are set out at s31(1) and (2).

“Refugee”, defined in Article 1, is a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Under section 31(5) a refugee is not entitled to this defence in relation to any offence committed after making a claim for asylum. Consequently, a defendant who enters the country either clandestinely or legally, claims asylum, and then obtains false documents for use in attempting to travel to another country, would be outside the scope of section 31.

Interpretation of s31

In the case of R v Asfaw [2008] UKHL 31 the House of Lords made the following observations on s31:

  • If a person presents a false document whilst in the course of transit as a refugee to another country, he could not be prosecuted in the country where he presented the false document in the course of transit. This approach was adopted in R v SK [2010] EWCA Crim 1335 [3] and in R v Jaddi [2012] EWCA Crim 2565, in which the court said the defence could still be advanced even when a defendant had passed for some days through another country in which he could reasonably have been expected to make an asylum claim, if he was nevertheless still in transit [19].
  • Accordingly, a s31 defence should be available for offences attributable to a refugee's attempt to leave the UK in the continuing course of a flight from persecution, even after a short stopover in transit [26].
  • It is permissible to charge a defendant both with an offence to which the s31 defence applies and with an offence to which it does not. However, If the second charge is based on the same conduct and is included in an indictment in order to prevent the defendant from relying on the s31 defence, there would be strong grounds for arguing that this is an abuse of process [31].

In SXH v The CPS [2017] UKSC 30, the Supreme Court considered whether a suspect’s entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation (an offence which could attract the s31 statutory defence) engaged Article 8 of the ECHR. The Court held that the decision to prosecute did not amount to a breach of Article 8, observing that “it is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights” [34].

Burden and standard of proof

The court in R v Mateta [2013] EWCA Crim 1372 at [21] provided a useful summary of the main elements of the defence, including the burden and standard of proof, as set out in R v Makuwa [2006] EWCA Crim 175:

  • The burden on the defendant as far as his refugee status is concerned is merely an evidential one i.e. he must adduce sufficient evidence to raise the issue. (See Makuwa [21, 38] for the elements that must be addressed and how the jury should be directed on them: a well-founded fear of persecution; fear based on one of the Convention reasons.) The prosecution must then prove beyond reasonable doubt that he was not a refugee. But in cases where the Secretary of State has refused an asylum application, the legal burden rests on the defendant to establish on a balance of probabilities that he is a refugee (see also s31(7) IAA).
  • In respect of the matters in ss31(a), (b) and (c) and s31(2), the defendant has a legal burden i.e. must prove on a balance of probabilities that:
    1. He did not stop in any country in transit to the UK for more than a short stopover; or, alternatively, he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the UK in which he stopped; and
    2. He presented himself to the authorities in the UK “without delay”, unless it was explicable that he did not present himself to the authorities during a short stopover in this country when travelling through to the nation where he intended to claim asylum; and
    3. He had good cause for his illegal entry or presence in the UK; and
    4. He made a claim for asylum as soon as was reasonably practicable after his arrival in the UK, unless it was explicable that he did not present himself to the authorities during a short stopover in this country when travelling through to the nation where he intended to claim asylum.
  • It follows that the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection may be judged are the length of stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection in law or in fact from the persecution from which he was seeking to escape.

Information from Immigration Enforcement (IE) - Criminal and Financial Investigation (CFI) unit

The CPS is reliant upon the Immigration Authorities for information relevant to an assessment of whether a defence under section 31 may apply. SXH v CPS [2013] EWHC 71 (QB) confirmed that it is “rational and proportionate that the CPS should depend upon the relevant agencies and departments to keep them informed” [85].

In all cases in which a s31 defence may apply, the information relevant to an assessment should be provided as early as possible prior to charge and should include:

  • Any credible evidence that the suspect has a s31 defence available to him. This should cover all the elements of the defence set out above, including whether he is a refugee and the outcome of any application for asylum.
  • If the CFI officer is of the view that the suspect is not entitled to the protection afforded by the s31 defence, an explanation on the MG3 for that view, with any supporting information.

Refugee Status determined by the Home Office

If a suspect is a refugee and the Home Office determines that the other conditions in the section 31(1) and (2) criteria are met, no charges should be brought.

Where CFI submit a case for charging advice on the basis that the section 31(1) and (2) conditions have not been met, prosecutors must carefully consider the evidence submitted. If the defence is likely to succeed, no prosecution should be brought for the relevant offences.

If the suspect is not a refugee, the defence is not available, regardless whether they fulfil the other conditions. It will be a matter for UKBF to consider deportation/removal and/or refer the case to the CPS for a charging decision.

In accordance with paragraph 3.6 of the Code for Crown Prosecutors, prosecutors have a duty of continuing review and must take account of any change in circumstances, such as any further information that comes to light regarding the suspect’s refugee status and asylum claim.

Refugee Status yet to be determined

Where a suspect's refugee status is yet to be determined or is the subject of an appeal to the Immigration Appellate Authority, it would normally be appropriate to await the outcome of the asylum proceedings before making a decision on charge, if consideration is being given to charging one of the s31(3) listed offences. This will usually be the case where CFI indicates that a decision will be made about a suspect’s refugee status within a reasonable amount of time.

However, in some cases refugee status can take several years to determine, and it is advisable that liaison takes place with the case officer and the Home Office to ascertain when a decision will be reached, as this may impact on the decision to charge.

An undetermined asylum application is not a barrier to prosecution and prosecutors should consider all the circumstances of the case in deciding whether to await the outcome of the asylum application or to proceed to charge. The following factors, for example, may be relevant:

  • A time limit in which the offence must be charged, which might expire before the asylum determination.
  • A risk of the suspect absconding pending the asylum determination.
  • The suspect has already caused delay by, for example, providing multiple contradictory accounts, a period of absconding, or the deliberate destruction of identity documents to hinder enquiries into his country of origin.

In cases where the prosecution accepts that the suspect satisfies all of the other conditions in s31(1) and (2), and the only issue is the suspect’s refugee status, no offences listed in s31(3) should be charged until the status is determined. No Further Action should be taken on these cases but the suspect should be given a re-instatement warning, in the event that refugee status is not granted.

Trial

In the event that a suspect is charged prior to determination of his refugee status, at the earliest possible court hearing, and prior to trial, the officer in the case should be asked to provide a written update on the defendant's refugee status.

If the defendant claims to be a refugee and no determination has been made, the Crown's position should be that while not accepting the claim or making any concessions in respect of his refugee status, we will not seek to establish that he is not a refugee for the purpose of the criminal trial. In such cases there will be no issue for the jury to decide and no need to explain the term - see R v Makuwa [2006] EWCA Crim 175 [37].

The issue at trial, in terms of the statutory defence, will be insufficient evidence of compliance with one or more of the other conditions in s31(1) and (2). For example, the defendant may or may not be a refugee, but the prosecution is satisfied he did not come directly from the country of persecution, or there was an unreasonable delay before he presented himself to the UK authorities.

The defence and the court should be served with a copy of R v Makuwa, to ensure that all parties are aware of what facts give rise to a section 31 defence, the burden and standard of proof and how the jury should be directed.

Appeals based on section 31

Section 31(8) makes the statutory defence retrospective in its application. A person who was convicted of an offence to which s31 applies, before it came into force, but at no time during the proceedings for that offence argued that he had a defence based on Article 31(1), may apply to the Criminal Cases Review Commission.

Moreover, there have been a number of appeals based on an accused’s representative’s failure to advise him about the availability of the s31 defence: see Leveson LJ’s comments in R v Mateta [24] and R v AM and Others [2010] EWCA Crim 2400 [10, 56] on the obligations of defence representatives.

Prosecutors should therefore carefully consider whether accounts given by asylum seekers could give rise to a defence, so as to minimise the risk of successful appeals based on the appellant’s failure to properly put forward a s31 defence at trial. If a defence is likely to be raised, the CFI officer in the case should be requested to obtain evidence on the refugee status and asylum claim: see the sections above on determining a refugee’s status.

2. Statutory defences to the offences under section 2 Asylum and Immigration (Treatment of Claimants etc.) Act 2004

Section 2 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 creates two offences of not having an immigration document at a leave or asylum interview, relating to the person and any dependant children: see the Table of Immigration Offences in the Annex.

Sections 2(4) and 2(5) of the Act contain the main statutory defences to these two offences.

Section 2(4)(e) may apply to an entrant who was smuggled for the entire journey in a lorry.

The Act does not define ‘reasonable excuse’ but s2(7) excludes deliberate destruction or disposal from amounting to a reasonable excuse for non-possession at interview, unless it was beyond the control of the entrant or for a reasonable cause. Reasonable cause does not include delaying the handling or resolution of a claim or application, increasing its chances of success, or complying with the instructions or advice of a facilitator (agent), unless it is unreasonable to expect non-compliance with the instructions or advice.

The CPS is reliant upon Immigration Enforcement for information relevant to an assessment of whether a section 2 defence might apply. In cases where a suspect makes an assertion that an agent told him to destroy or hand over his passport, this should be scrutinised by investigators.

Interpretation of the section 2 defences

R v Navabi [2005] EWCA Crim 2865 confirms that the burden of proving the defence is on the defendant and it is a legal burden i.e. on the balance of probabilities [29-30].

In Thet v DPP [2006] EWCH 2701 (Admin) the court clarified that the document referred to in subsections (3) and (6) is a genuine document. Therefore if the person enters the UK on a false passport but fails to produce it at interview, it is a reasonable excuse for not providing a document under s2(6)(b) that it was impossible for him to obtain a genuine passport in his country of origin.

In R v Mohammed and Osman [2007] EWCA Crim 2332 the court held that:

  • The person is unable to obtain a genuine travel document because of the political situation or lack of issuing facilities in the country of origin.
  • The genuine travel document is stolen or destroyed en route, or in the UK, through no fault of the applicant.

Refugee cases where the section 2 defence does not apply

The court in R v Navabi confirmed that although the offence created by s2 falls within the ambit of Article 31 of the Refugee Convention, neither A31 nor section 31 of the Immigration and Asylum Act 1999 can provide a defence to a s2 charge, as Parliament had not fully incorporated A31 into domestic law.

In refugee cases where the s2 defences do not apply, prosecutors should apply the approach to charging decisions set out in the section on the Public Interest below. This will ensure that the purposive and humanitarian aims of the Refugee Convention are borne in mind when considering the public interest.

3. Section 45 Modern Slavery Act 2015

Section 45 of the Modern Slavery Act 2015 provides a defence for victims of slavery or trafficking who are compelled to commit criminal offences.

The defence applies to all offences in the Table of Immigration Offences in the Annex, save for the offences under s25 of the Immigration Act 1971 (Assisting unlawful Immigration) and s32 of the Offences Against the Person Act 1861 (endangering safety of railway passengers).

See the legal guidance on Human Trafficking, Smuggling and Slavery for more detailed information.

The Public Interest

General approach

Prosecutors must first be satisfied that there is sufficient evidence to meet the evidential stage of the Full Code Test (FCT), set out in the Code for Crown Prosecutors (the Code).

Assessing the evidential stage will include an assessment of any statutory defences available to the suspect: see the section above on Statutory Defences and the Annex for the Table of Immigration Offences, which cross-references the available statutory defences. If a statutory defence is made out, the evidential stage of the FCT is not satisfied and there will be no need to consider the public interest stage.

If the FCT is satisfied, the public interest stage must be considered. When assessing whether a prosecution is required in the public interest, prosecutors must follow the approach set out in the Code, including consideration of the questions at paragraph 4.12. When doing so, prosecutors should also apply the relevant approach to different types of immigration cases, as set out below.

1. Approach in cases involving refugees

In cases where a statutory defence is not available to a refugee, the purposive and humanitarian aims of the Refugee Convention as set out in Asfaw should be borne in mind when considering the public interest. Specifically, prosecutors should consider the factors listed below in relation to Article 31.

Article 31

According to Lord Bingham in R v Asfaw [2008] 2 WLR 1178, the Convention must be given a purposive construction [11] and had three broad humanitarian aims, the third of which was “to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution” [9].

Article 31 gives effect to this aim, which states:

(1) 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 authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

For the meaning of “refugee” in Article 1 see the section above on Statutory Defences.

Asfaw construed A31 as providing immunity from prosecution to refugees in the course of flight, even if they stopped in an intermediate country en route to the country of intended refuge; “coming directly” therefore has to be construed flexibly.

In R v Mirahessari and Vahdani [2016] EWCA 1733, the Court appeared to adopt the first instance judgment in R v Haroun (unreported), in which the judge indicated that Asfaw is authority for the proposition that just because an offence is not one to which the section 31 statutory defence applies, that does not preclude the protection contained in A31 from acting as a bar to prosecution. However, it will not provide an automatic bar to prosecution; it will depend on what offence is alleged and the facts of the particular case [19-24].

Factors relating to Article 31 of the Convention

The person:

  • Is a refugee within the meaning of the Convention: see Article 1.
  • Came directly from a territory where their life or freedom was threatened in the sense of article 1.
  • Presented themselves without delay to the authorities.
  • Showed good cause for their illegal entry or presence.
  • Committed the offence(s) reasonably or necessarily in the course of flight from persecution or threatened persecution.

The burden and standard of proof to be applied in considering these factors should be the same as would apply to a s31 defence at trial: see the section on Statutory Defences above.

The presence of all of these factors will make it less likely that a prosecution is required. However, unlike statutory defences, they will not provide an automatic bar to prosecution.

The Article 31 factors will need to be weighed with any other factors identified in the case, to form an overall assessment of the public interest. The factors listed below under “Administrative removal” will be relevant. Additionally, the following factors should be considered:

  • Whether there is any statutory defence available to the offence charged, which has not been met on the facts of the case, and the reasons why the defence is not met. [Note that a person who is granted refugee status can still be guilty of an offence of entering the UK without a passport under s2 Asylum and immigration (Treatment of Claimants etc.) Act 2004.]
  • The seriousness of the level of crime involved in securing illegal entry, particularly if it is more serious than the documentary and deception offences which attract statutory defences.
  • The offending compromised the genuine identity of another person, causing them loss, distress or inconvenience.
  • Access to public services are obtained, which would not otherwise be available.
  • The suspect’s actions caused harm to others, or placed other persons’ life, health or safety at risk.
  • Disruption to services, such as those relating to train services in the Channel Tunnel.
  • Economic loss, which may, for example, be linked to any disruption of services.
  • The offending caused a significant investment of police or Immigration resources.

2. Approach in all non-refugee immigration cases

Prosecutors should first consider whether the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an alternative to prosecution. This applies to any case involving a non-refugee who is in the UK illegally, whether they are accused of an immigration or other type of offence. The alternatives available are:

  • Administrative removal; or, if this is not appropriate, by
  • A Foreign National Offender Conditional Caution (FNOCC).

When considering these alternatives, prosecutors will have regard to the fact that there is a substantial cost to the public when a foreign national offender, who needs to be managed in the community or kept in immigration detention, remains in the UK. See paragraph 4.12(f) of the Code: prosecutions should be a proportionate response.

Administrative removal

The person in question must agree to administrative removal. However, persons who are suspected of committing a section 2 offence (not having a travel document at a leave or asylum interview) or an offence which may attract a defence under s31 of the Immigration and Asylum Act 1999, are likely to be seeking leave to remain or asylum. Accordingly, it is not likely that they would agree to administrative removal. Additionally, if a person is a genuine asylum seeker, they should not be administratively removed.

The following factors are relevant when deciding whether administrative removal is in the public interest:

  • A likely sentence of less than 12 months imprisonment.
  • The level of harm to and the views of the victim, where applicable.
  • Previous convictions of a suspect (either UK or foreign convictions).
  • A potentially substantial confiscation order and the likelihood of timely enforcement.
  • A suspect who may be willing to assist in the investigation or prosecution of others (in accordance with the Serious Organised Crime & Police Act 2005 (SOCPA)), who would need to remain in the UK for this purpose.
  • Application of the Code. In particular, under paragraphs 4.12(b) and (d), the personal circumstances or characteristics of the suspect - for example, their age or the state of their physical or mental health - are factors which may mean it is less likely that a prosecution is required. This information should be provided by Immigration Enforcement CFI. However, prosecutors can also consider information from other sources including the police, other investigators, the suspect or those acting on their behalf.

Foreign National Offender Conditional Caution (FNOCC)

If administrative removal is not considered appropriate, in cases (including indictable only cases) where the likely sentence would be less than two years imprisonment, consideration should be given to offering the suspect a conditional caution with foreign offender conditions.

For more detailed information, refer to the section on FNOCCs below.

Administrative removal and FNOCC not appropriate

If neither administrative removal nor a FNOCC is considered appropriate, prosecutors should apply the Code, including consideration of the questions at paragraph 4.12. In most cases, it is likely that a prosecution will be in the public interest.

3. Approach in human trafficking and slavery cases

If it comes to the notice of the prosecutor that the suspect may have committed an immigration offence whilst in a coerced situation and may be a victim of human trafficking or slavery, the investigating officer should be asked to make further enquiries and refer the suspect through the National Referral Mechanism.

When making a decision on whether it is in public interest to prosecute such suspects, prosecutors should follow the approach in the legal guidance on Human Trafficking, Smuggling and Slavery.

Foreign National Offender Conditional Caution

The purpose of the Foreign National Offender Conditional Caution (FNOCC) is to bring about the offender’s departure from the UK and to ensure that return does not occur for a specified period of time. These conditions must be imposed in every case.

The offender may also be required to:

  • Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal.
  • Obtain or assist authorities in obtaining a valid national travel document.
  • Comply with removal directions within a set time period (usually 16 weeks) and any lawful directions given to effect departure.
  • Not to return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules, although in exceptional circumstances a period of 10 years may be specified.

If the FNO does not comply with the conditions set, they can be prosecuted for the original offence.

A FNOCC may only be offered to a non-European Economic Area foreign offender having no leave to enter or remain in the UK, and in respect of whom there is power to enforce departure.

FNOCCs may be used in cases that would ordinarily result in the imposition of imprisonment following conviction, where the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. They should only be used where it will be practicable to remove the person within a reasonable period of time.

FNOCCs cannot be offered where the offender makes, or has, an outstanding asylum or human rights claim to remain in the UK, or where the offender admits to committing a document or identify fraud offence in order to make a claim for asylum, or where the offender may be a trafficked victim. This does not prevent a FNOCC being offered where the asylum or human rights claim has been withdrawn or refused and any appeal against refusal has been finally determined.

A FNOCC can still be issued following charge if, following a review, the prosecutor considers the case might be disposed of more appropriately in this way. If so, prosecutors should engage with the defence before the first court hearing, to determine whether they agree. Once the FNOCC is administered, the case would be discontinued.

In all cases, the Code of Practice for Adult Conditional Cautions 2013 and the Director’s Guidance on Adult Conditional Cautioning 2013 must be applied.

See also the section on the Public Interest above.

Ancillary Orders

Deportation

Procedures in relation to deportation are dealt with under the legal guidance on Sentencing - Ancillary Orders.

Prosecutors should be fully familiar with these procedures, including their role in identifying and drawing the court’s attention to defendants eligible for deportation.

Forfeiture

Section 25C of the Immigration Act 1971 provides a power for the forfeiture of vehicles, ships or aircraft used in the commission of the offences under section 25, 25A and 25 B of the Immigration Act 1971 and section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.

For other offences, the power to forfeit items used in the commission of a crime under s143 Powers of Criminal Courts (sentencing) Act 2000 should be considered.

Disqualification

If an offender use his vehicle to facilitate immigration crimes, an application may be made for an order to disqualify him from holding or obtaining a driving licence under section 146(1) of the Powers of Criminal Courts (Sentencing) Act 2000.

Documentary Evidence

Section 32(2) of the Immigration Act 1971 provides for documents made or given by the Secretary of State or signed by him or on his behalf, to be received in evidence. Thus correspondence from the Home Office to immigrants may be admissible in its own right.

The admissibility of other records, documents etc. are subject to the general law of evidence, in particular sections 117 and 118 of the Criminal Justice Act 2003. This includes normal Home Office records not falling within the scope of Section 32.

Difficulties can arise when evidence is required as to the status of an illegal entrant who has already been deported. This evidence is a vital ingredient of the offence in respect of a person charged with assisting unlawful immigration.

Evidence is usually adduced of a list of legal entrants from which the particular illegal entrant’s name will be missing. The court is then asked to draw the simple inference that absence from the list equates with illegality. The list must be introduced by a Home Office official responsible for the compilation of the list, as the list is not automatically admissible: the negative inference is not an exception to the hearsay rule: R v Patel [1981] 3 All ER 94). The HO official should give evidence as to how the list was compiled and confirm its accuracy: DPP v Leigh [2010] EWHC 345 (Admin).

Annex: Table of Immigration Offences

Download a copy of the Table of Immigration Offences.