London, 10 June 2008 - Baker & McKenzie LLP acted for the United Nations High Commissioner for Refugees ("UNHCR"), the intervener, in a recent, significant House of Lords case concerning the rights of a refugee travelling on false documents. 

The case concerned an Ethiopian national who had intended to travel to the United States on forged documents to seek refugee status there.  She arrived in the United Kingdom in February 2005 on a forged Ethiopian passport and successfully passed through immigration at Heathrow Airport. When she attempted, later in the same day, to depart for the US, using a forged Italian passport which had been provided by an agent, she was arrested before boarding the aircraft. She indicated that she wanted to claim asylum and, in April 2007, was formally recognised by the Home Secretary as a refugee.

She was charged with two offences in relation to the same facts and conduct: (1) using a false instrument (the Italian passport) with intent, contrary to s3 of the Forgery and Counterfeiting Act 1981; and (2) attempting to obtain services (the air transport services from the airline) by falsely representing that she was authorised to use the passport, contrary to s1(1) of the Criminal Attempts Act 1981. She was acquitted by the jury in relation to count 1.

The defendant unsuccessfully sought a ruling from the judge that she could rely upon Article 31 of the Refugee Convention (upon which the statutory defence was based) by way of a defence to count 2, and consequently she pleaded guilty to attempting to obtain services by deception. She was sentenced to nine months' imprisonment, and appealed against both conviction and sentence.

The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence, substituting an absolute discharge and raising concerns about the manner in which the case had been prosecuted.  The defendant appealed to the House of Lords.

In its judgement, the House of Lords considered whether a refugee who was charged with an offence not specified in section 31 of the Immigration and Asylum Act 1999 could rely on the protection afforded by Article 31 of the Refugee Convention.

In a decision which will resolve a significant area of uncertainty for refugees in a similar position to the appellant, the appeal was upheld, and the appellant refugee's conviction was quashed. The House of Lords held that Section 31 should be interpreted consistently with the Refugee Convention, and to argue otherwise would be an abuse of process. Lord Bingham of Cornhill, delivering the lead judgment, praised UNHCR's "…most valuable submissions…".

Robert Coffey led the Baker & McKenzie team, which also included Liz Williams. Mike Fordham QC and Shaheed Fatima of Blackstone Chambers acted as pro bono counsel.