Crown guidelines introduced to support refugees

New prosecution guidelines to protect refugees fleeing persecution were launched by the Lord Advocate today, International Human Rights Day.

They instruct prosecutors to consider whether a refugee, or a person who has claimed asylum, may have a defence under the Immigration Act 1999 to certain offences committed while trying to safely enter the country.

Recognising that those seeking safe haven may have to breach immigration rules, the guidelines – on which the Crown has consulted extensively with interested parties – state that prosecutors should uphold the principles of article 31 of the 1951 Refugee Convention that refugees should not, as far as possible, be put at risk of being penalised for their illegal entry.

Put broadly, three conditions have to be met. The person must:

• come directly from another territory where their life or freedom was threatened;
• present themselves to the authorities without delay; and
• show good cause for their unlawful entry or presence.

The offences to which the guidelines apply relate to using forged documents or other forms of deception as a means of entry, or any attempt to commit such an offence. More than 200 prosecutions have been taken in Scotland since 2009; it is not known in how many of these article 31 could have been invoked.

Describing the guidelines as "an important step in how the country deals with refugees", the Lord Advocate, Frank Mulholland QC, said: “To flee persecution and danger, it may be necessary to take steps to protect themselves and their families and we need to recognise the complexities of their situation and the difficult choices, they face.

“Prosecutors in Scotland play a vital role in ensuring that those who truly need protection are not put at risk of prosecution and punishment because they needed to commit offences to gain entry and claim asylum here. We have a proud tradition in this country of supporting those who are fleeing persecution.

"I want to ensure that prosecutors are clear on the factors they have to take into consideration when making decisions that can affect the life and liberty of asylum seekers. This new prosecution policy sends a clear message that prosecutors will take into account the principles behind the 1951 Refugee Convention when making decisions in individual cases."

He added that the Crown would work with other organisations to ensure that those who needed help and protection would be given it.

Gary Christie, head of policy at the Scottish Refugee Council, commented: "Refugees fleeing torture, imprisonment or human rights abuses often have to resort to unlawful entry to or exit from other countries as legal avenues to safety are not available to them. In many instances refugees may use false passports or have no passport as they cannot get passports from governments which are persecuting them or they may have to leave suddenly.

“In light of the current refugee crisis and the increasing focus on UK border security, the Crown Office's guidance is a timely and extremely important reminder to the Scottish criminal justice system and UK border authorities of refugees' fundamental right under the 1951 Refugee Convention to not be penalised for entering Scotland without a passport.

“We hope that this ensures refugees seeking asylum in Scotland will no longer find themselves in the dock for exercising their right to seek asylum."