The Problem with the Prosecution of Refugees
Posted
Time to read
Guest post by Yewa Holiday. Yewa teaches criminal law and land law at Queen Mary University of London. Her PhD thesis explored the compatibility of the criminalisation of refugees in England and Wales with article 31(1) of the 1951 Refugee Convention. You can follow her on twitter @yyadiloh. This is the final instalment of Border Criminologies’ themed posts on wrongful convictions of asylum seekers organized by Ana Aliverti.
This post looks at article 31(1) of the Refugee Convention and the prosecution of refugees in England and Wales via the case of Mr Nori in R v YY and Nori
The UK criminal justice system deals with article 31(1) by providing two defences which refugees can use when faced with prosecution; first, the refugee defence which is based on article 31(1) (used mainly for false passport type offences), and second the reasonable excuse defence (used mainly for failing to produce a passport). While, the intention behind the former is to ensure that refugees are not penalised for offences of unlawful entry and presence, the latter aims to deter people from hiding their identity by disposing of identity documents or from claiming asylum when they had been recognised as refugees elsewhere.
The CCRC's response to cases where these defences should have been available to defendants is to frame them as miscarriages of justice because of inadequate legal advice. However, the problem with the criminalisation of refugees is of a more fundamental nature. This has begun to be recognised, for example by Colin Yeo who has asked whether the CPS are more responsible than ‘allegedly incompetent defence lawyers’ and by Aliverti and Hoyle and Sato, in this series. However, refugees who have committed offences of unlawful entry and presence ought not to be prosecuted at all. The reason they should not be prosecuted is due to the 'fundamental principle' of non-penalisation in article 31(1). If article 31(1) is to operate to protect refugees, the asylum claim must take precedence over any criminal prosecution. If refugee status or other protected status is granted, that should be an end of the matter. If the person cannot show that she or he merits international protection, only then should the CPS consider whether or not it would be in the public interest to prosecute.
He could not explain why, if that was the case, he did not use it and purchase his own air tickets, once in Syria, as opposed to paying another extortionate amount. During his interview, I was not totally convinced by
Note: Yewa’s thesis will be published as a monograph by Brill in 2017.
Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.
__________
How to cite this blog post (Harvard style)
Holiday, Y. (2017) The Problem with the Prosecution of Refugees. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/problem (Accessed [date]).
Share
YOU MAY ALSO BE INTERESTED IN
With the support of







