A 54-day Stopover Recognised as “in transit” for Refugee Convention

In Idahosa v R [2019] EWCA Crim 1953, the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum.

What is the ‘false documents offence exception’?

The Refugee Convention necessitates that contracting states do not prosecute refugees for immigration offences, which are linked with seeking international protection, including using false documents to enter a country to claim refuge. 

UK law has accordingly applied the exception to domestic cases, such as in the decision in R (Adimi) v Uxbridge Magistrates Court [1999] EWHC Admin 765 where it was held that the protection awarded by the Refugee Convention must also apply to refugees who are “in transit” from their country of origin to the country in which they intend to claim asylum.

Background facts to the case of Idahosa

Mr Idahosa entered the UK lawfully from Nigeria and intended to travel onwards to Canada to claim asylum. His stay in the UK was expected to be brief however prolonged when his agent was unable to arrange his travel to Canada.

After 54 days, he was arrested at Gatwick Airport attempting to board a flight to Canada using a false British passport, which he was using as it allows visa-free travel to Canada.

The false documents offence exception was applied in his case as the court concluded that Mr Idahosa remained intent on leaving the UK for Canada to be reunited with his partner. He was not able to do so merely because he was prosecuted at Gatwick Airport. The Court of Appeal accordingly had quashed his conviction.

This judgement demonstrates that the Court of Appeal grapples complicated issue of public international law to obtain a result which does not neglect fundamental rights.