Turning wrongful convictions into rights? Asylum seekers and the criminal law

Fifteen years have passed since the High Court delivered the ground-breaking decision in Adimi [1999], in which Lord Justice Brown called attention to the scarce observance of Article 31 of the Refugee Convention in domestic criminal proceedings against asylum seekers arriving in Britain, or en route to another country, without proper documents. In response to the judgment, the British Parliament incorporated section 31 in the Immigration and Asylum Act 1999, providing for a defence for refugees against certain criminal charges under a number of conditions. While the then Attorney General stated that only meritorious cases would be prosecuted, recent Court of Appeal decisions (R v MV and others [2010]; R v Adom (Bismark) [2013]; R v Mateta and others [2013]) suggest that successful asylum claimants continue to be prosecuted for their illegal entry into or transit through Britain. Indeed, even if there are no precise figures about the number of asylum seekers who have been prosecuted in such circumstances, the Criminal Cases Review Commission (CCRC) considered that the number of cases referred to it revealed a ‘significant and potentially widespread misunderstanding or abuse of the law’ (CCRC, 2012: 15). Although these judicial developments concern cases at the appeal stage, little is known about the everyday work of the lower criminal courts and how working practices of prosecutors, defence lawyers and the judiciary influence the handling of cases involving asylum seekers accused of immigration-related crimes. Dr Aliverti argues that the examination of those practices can shed light on the reasons for the continuing criminalisation of asylum seekers, and perhaps the key to its undoing.