Lord Advocate introduces new prosecution guidelines for refugees

New prosecution guidelines, designed to protect refugees fleeing persecution, have been introduced by the Lord Advocate, Frank Mulholland QC.

Prosecutors will consider whether a refugee, or a person who has claimed asylum, may have a defence under the Immigration Act 1999 should they commit an offence while trying to safely enter the country.

Those seeking safe haven may have to breach immigration rules.

The new guidelines state that prosecutors should uphold the principles of article 31 of the 1951 Refugee Convention that refugees should not, as far as possible, be put at risk of being penalised for their illegal entry.

The broad principle for Scottish prosecutors is that those who are refugees, or presumptive refugees, who needed to commit offences to gain entry to the country shall not be penalised if three conditions are met. The person must:

(i) Come directly from another territory where their life or freedom was threatened

(ii) Present themselves to the authorities without delay.

(iii) Show good cause for their unlawful entry or presence.

Mr Mulholland said: “This is an important step in how this country deals with refugees and those seeking safety far from their own homes.

“To flee persecution and danger, it may be necessary to take steps to protect themselves and their families and we need to recognise the complexities of their situation and the difficult choices, they face.

“Prosecutors in Scotland play a vital role in ensuring that those who truly need protection are not put at risk of prosecution and punishment because they needed to commit offences to gain entry and claim asylum here. We have a proud tradition in this country of supporting those who are fleeing persecution.”

He added: “I want to ensure that prosecutors are clear on the factors they have to take into consideration when making decisions that can affect the life and liberty of asylum seekers. This new prosecution policy sends a clear message that prosecutors will take into account the principles behind the 1951 Refugee Convention when making decisions in individual cases.

“We will work with our criminal justice partners, as well other organisations across Scotland and the UK as a whole, to ensure that those who need our help and protection will be given it.”

The new policy comes following extensive consultation with refugee charities, police, human rights organisations and academic experts.

Gary Christie, head of policy, Scottish Refugee Council said: “Refugees fleeing torture, imprisonment or human rights abuses often have to resort to unlawful entry to or exit from other countries as legal avenues to safety are not available to them.

“In many instances refugees may use false passports or have no passport as they cannot get passports from governments which are persecuting them or they may have to leave suddenly.

“In light of the current refugee crisis and the increasing focus on UK border security, the Crown Office’s guidance is a timely and extremely important reminder to the Scottish criminal justice system and UK border authorities of refugees’ fundamental right under the 1951 Refugee Convention to not be penalised for entering Scotland without a passport.

“We hope that this ensures refugees seeking asylum in Scotland will no longer find themselves in the dock for exercising their right to seek asylum.”