Way must be found to protect refugees, says Dean
Offering protection to people fleeing persecution may be difficult, but it must be done, the Dean of the Faculty of Advocates stated yesterday.
Opening a conference to raise awareness of an important legal protection available to those charged with certain immigration offences, James Wolffe QC said that the duty on states to give asylum to those who faced a well-founded fear of persecution in their home country was a moral imperative as well as an obligation in international law.
The conference, sponsored by the Faculty and arranged with the Scottish Refugee Council as part of its 30th anniversary celebrations, focused on article 31(1) of the 1951 Refugee Convention, which provides that, in stipulated circumstances, states should not prosecute refugees for illegally entering the country or for using false papers. It is reflected, though not completely, in the statutory defence in s 31 of the Immigration and Asylum Act 1999 to certain offences relating to illegal entry.
Mr Wolffe, who said his own father had come to this country in the 1930s to escape Nazi persecution, pointed out that escapees frequently required to engage in subterfuge and false identity, adding: "To prosecute and punish genuine refugees for using subterfuge and false papers would, then, undermine the duty of protection which states owe to them."
He continued: "I do not underestimate the challenges today of meeting those moral and legal claims – we can see that exemplified by what is happening in the Mediterranean," stated Mr Wolffe.
"The displacement of populations by war and civil strife; the ease of international mobility; the potential difficulty of distinguishing the genuine refugee from the economic migrant or, indeed, from the person who would do us harm – all of these challenge our commitment to the protection of refugees.
"But we cannot fail to meet the claims of those who flee persecution just because it is difficult or inconvenient to do so."
Also at the conference, the Lord Advocate, Frank Mulholland QC assured the audience that the Crown was committed to supporting the rights of refugees and would be proactive in seeking information that would indicate that the defence might be available. He described the main features of a Crown Office & Procurator Fiscal Service policy currently being developed to address such cases – now being consulted on and which will be published in due course – which, he said, would adopt a "wide and expansive" interpretation of the elements that require to be established under s 31.
The conference heard that there have been over 200 convictions since 2009 related to attempted illegal entry at three key points in Scotland: Stranraer, Glasgow Airport, and Edinburgh Airport.
Mr Wolffe commented: "I am really pleased that the Faculty has been able to support the Scottish Refugee Council in raising awareness of this important feature of the law – which lies at the interface of criminal law and refugee law. I have the impression that it is not as well understood as it should be, and it was therefore very gratifying indeed that the conference attracted a large audience."