By Rona Epstein
8 November 2019
Tara Casey wrote recently, ‘Poverty is not a crime and should never be treated as one’. Likewise, seeking asylum is not a crime, but is too often treated as one.
The American academic Professor Juliet Stumpf described the convergence of criminal and immigration law as ‘crimmigration’. Two recent cases illustrate how harshly asylum seekers may be treated under crimmigration law.
The first is SXH (Appellant) v The Crown Prosecution Service (Respondent)  UKSC 30.
SXH is a refugee from Somalia. She and her family suffered dreadful violence from majority clans over the years; both her mother and father were murdered and she was raped and severely beaten. In December 2008, she fled from Somalia to Yemen. A year later she left Yemen and travelled to Holland. She then flew from Holland to the UK on a false passport. Challenged by the UK Border Agency on arrival, she immediately claimed asylum. She was prosecuted for the offence of possession of a false document. After spending six months in custody she was released and given asylum.
She brought a case against the Crown Prosecution Service (CPS), claiming that the prosecution was disproportionate and violated her rights under the European Convention of Human Rights (ECHR). Her case against the CPS failed. She then appealed, unsuccessfully, to the Supreme Court.
Lord Kerr (2017) stated:
I reach the decision that the appellant must fail in her appeal with regret. This woman, in her short life, has had to endure experiences of the most horrific nature. …It is not the least surprising that she had to resort to the subterfuge of false papers in order to secure the measure of safety which she believed that this country would afford her. It is sad that her terrible circumstances were compounded by her incarceration when she was vulnerable and defenceless.
Why did the court not realise that, in Lord Kerr’s words, ‘continuation of the decision to prosecute beyond the time that it should have been recognised that [SXH] had an answerable defence … constituted an interference with [her] freedom of liberty under article 5 of the Convention and article 8 rights’? Surely the right to liberty of every person should always be at the forefront of judicial thinking? Why was this extremely vulnerable woman sent to prison? Where was the respect for basic human rights in that court? For us, the custodial sanction strongly indicates a lack of respect for basic human rights and a reprehensible infringement of human dignity.
Assia B was charged with three offences and pleaded guilty to one: possession of an identity document with an improper intention. For this she was sentenced to ten months in prison. She came to the UK on a student visa, and while in the UK she was raped. When her visa expired she was terrified of returning to Algeria due to the stigma attaching to her status as a victim of rape. She obtained a Portuguese passport and used that false passport to obtain employment. She was arrested, charged and remanded in custody for one month, then released on bail subject to an electronically monitored curfew.
By the time of her trial in the Crown Court in September 2016 her circumstances had changed. She had married a naturalised British citizen and she was pregnant, due to give birth a month after the hearing date. The court was told of her health difficulties, including asthma and a pulmonary embolism. The recorder was asked to adjourn the hearing for a pre-sentence report but refused. Assia B had no previous convictions. The recorder said that she could have applied for asylum in the UK, and considered that the circumstances of the offence were too serious to allow anything other than immediate imprisonment, so Assia B went to prison. Two weeks later her case came before the Court of Appeal.
The Court of Appeal saw medical reports indicating that Assia B’s health difficulties continued during her time in prison. A pre-appeal report revealed that the stress of imprisonment was having a negative effect on ‘this vulnerable young woman’ and recommended that there were exceptional circumstances that would justify a suspended sentence – this was an isolated offence and there was nothing in Assia B’s attitude, lifestyle or circumstances to indicate a risk of further offences. The court ruled that in view of the pregnancy and health difficulties, it was right to suspend the sentence of imprisonment and quashed the sentence of immediate imprisonment, substituting a suspended sentence of six months’ imprisonment suspended for two years.
The court commented on the recorder’s refusal to get a pre-sentence report:
We also consider that the Recorder was somewhat precipitous in moving to sentence without the assistance of a pre-sentence report. She plainly thought that immediate custody was an inevitable part of the sentence and a pre-sentence report would therefore serve no purpose. In our view, though, that conclusion was not so obvious and a pre-sentence report would have been useful. Even if the Recorder, or a subsequent judge was to conclude notwithstanding the report that immediate custody was necessary, it would still have served some purpose to have that report accompanying the defendant when she was remanded.
The court had an opportunity to suspend the sentence or pass a lighter sentence, given that the defendant was pregnant, vulnerable, suffering from ill health and the victim of a violent crime; however, they chose to do neither.
Disproportionate sentencing for the vulnerable
Not only is Assia B’s sentence grossly disproportionate, but it also shows the institutionally racist, repressive and violent nature of the criminal justice system.
The Court of Appeal later rectified this, but the trauma of being in prison had already been inflicted on Assia B who was expecting to give birth two weeks after her release from prison. How many Assia Bs are there in prison who have not been able to mount a challenge at the Court of Appeal?
The Criminal Cases Review Commission (CCRC) has expressed concern that potentially hundreds of asylum seekers and refugees have been wrongly convicted [of immigration ‘offences’ such as use of a false document] after being advised to plead guilty to charges relating to their entry to the UK. The CCRC has observed that prosecutions for offences such as failing to produce a passport, contrary to the Immigration and Asylum (Treatment of Claimants) Act 2004, appear to take place without adequate advice from lawyers who may not be familiar with the complexity of the law, and that these applicants can experience substantial injustice.
The Home Office is locking up trafficked women
The recent report by Women for Refugee Women, From One Hell To Another, reveals that the Home Office is locking up women from China who have been trafficked to the UK, in contravention of its own policies. By reviewing the legal files of 14 of these women, it is clear that the Home Office is deliberately refusing to protect them, and is knowingly inflicting further harm and trauma on them.
The case against detention has been made time and again. The Home Office has made promises of reform by introducing an ‘Adults at Risk’ policy, which states that people who are vulnerable, including survivors of gender-based violence and trafficking, should not be detained. It has also repeatedly promised to help and support survivors of trafficking. But the research shows that despite this, vulnerable women are still routinely being locked up and harmed by detention. The UK government needs to end its use of detention, and resolve people’s immigration cases in the community.
The government, policy makers and courts should be ashamed of the sheer lack of humanity towards those escaping difficult and violent situations and seeking sanctuary.
Rona Epstein is Honorary Research Fellow, Coventry Law School