The young woman from Somalia who fled to the UK after experiencing severe trauma and persecution in her home country, including rape and the murder of her parents, was wrongly prosecuted for possession of a passport that did not belong to her after claiming asylum. While possession of a false document is generally illegal, the law recognizes refugees may need to use deception like false papers to escape persecution. The woman met the criteria for a defense under the Immigration Act but was wrongly prosecuted anyway due to failures by prosecutors and her defense lawyer. The Supreme Court refused to award her damages.

1. Supreme Court refuses damages to refugee wrongly prosecuted for
illegal entry
Shortly after Christmas in 2009, a young woman from Somalia flew into Stanstead and
claimed asylum. She had just turned 18.
As later accepted by the Home Office, she had experienced severe depredations in her
home country. This included her rape at the age of six in the presence of her disabled
mother, and the murder of both of her parents. She fled Somalia in 2008, initially to Yemen,
where she spent the next year.
She was eventually able to fly to Europe with the help of an agent, who provided a British
passport to facilitate her entry into the UK.
After claiming asylum, the young woman from Somalia was prosecuted for possession of an
identity document which did not belong to her.
Welcome to Britain
When refugees flee persecution, it is rare that they will have the correct paperwork. It will
sometimes be the case that individuals have to forge documents in order to enter a country
of safety, or pay someone (often an agent) to supply a document that does not belong to
them.

2. Unsurprisingly, being in possession of a document that does not belong to you, with the
intention of using it to establish your own identity, is illegal. In fact, it is punishable by up to
10 years in prison by s.4 Identity Documents Act 2010.
However, the law also recognizes that those fleeing persecutions may have to resort to
deception such as possession and use of false papers in order to make good their escape.
Article 31 of the Refugee Convention 1951 prohibits contracting states from imposing
penalties for illegal entrance.
Presumably with a nod to the framers of the Convention (or otherwise a massive
coincidence), s.31(1) Immigration Asylum Act 1999 puts this defense into practice:
It is a defense for a refugee charged with an offence to which this section applies to show
that, having come to the United Kingdom directly from a country where his life or freedom
was threatened (within the meaning of the Refugee Convention), he
i) presented himself to the authorities in the United Kingdom without delay;
ii) showed good cause for his illegal entry or presence; and
iii) made a claim for asylum as soon as was reasonably practicable after his arrival in the
United Kingdom.

3. In a series of cases in recent years, it has emerged that refugees have been wrongly
prosecuted and wrongly convicted despite having an arguably defence under section 31 or
under a Supreme Court case called R v Asfaw [2008] UKHL 31.
Prosecutors have acted improperly and defence lawyers incompetently; and the courts have
been very critical of these failings.
Visit us at : www.vira.co.uk