Travel Document Project

Amended Instructions for Documenting Removals and the Implementation of Section 35 of the Asylum and Immigration (Treatment of Claimants Etc.) Act 2004 in Non-Compliant Cases (January 2011)  

These instructions are also contained in Chapter 17 Criminal Procedure and Investigations Act, Enforcement Instructions & Guidance (EIG) , from section 17.11 onwards.

In this instruction UKBA states:

"The following process has been designed to improve compliance to the documentation process. It applies to all caseworkers in England and Wales, Criminal Casework Directorate (CCD), Operational teams responsible for documentation interviews and officers in Local Immigration Teams (LIT). This document also contains guidance on reasonable excuse and case priorities. This document reflects the Agency's efforts to widen the use of Section 35 for individuals who are not complying with documentation. Staff are encouraged to take a robust line when tackling non-compliance and to take action at as early a stage as possible.

Section 35 provides that a person may be required to take a specified action if the Secretary of State thinks that the action may enable a travel document to be obtained and that the document will facilitate the person's removal. Section 35 action should only be taken against individuals who are eligible for removal from the UK.

1.3 A person commits an offence if he fails without reasonable excuse to comply with a requirement to take specific action for the documentation process, and, if guilty, may be sentenced to a maximum of 2 years imprisonment and/or fine.

1.4 Non-compliance with such a requirement can be: non attendance at a documentation interview, attendance at an LIT interview but refusal to answer questions or complete any part of the documentation process, i.e. not bringing family members when required to do so, not bringing supporting documentation when required to do so, refusal to co-operate, providing incomplete information, non-attendance or refusal to answer questions at Embassy or High Commission interview (either face to face or telephone), providing false information which results in the Embassy or High Commission rejecting the application [this list is not exhaustive]

3.1 Section 35 should be used when individuals have no outstanding appeals and are removable but for the documentation barrier.

8. Guidance on reasonable excuse

8.1 When considering whether an individual has offered a reasonable excuse, the following guidance should be consulted:

8.2 Whilst the burden is on the prosecution to prove that any excuse raised by the defendant is not reasonable, the burden of proof is an evidential one on the defendant; that is, the defendant will need to raise evidence of his cause. Once the defence of ‘reasonable excuse is raised, the burden of disproving it is on the Prosecution to the criminal standard. [EPU 09/04 refers]

8.3 CPS guidance is that the legislation is silent on what constitutes ‘reasonable excuse'. In the case of R v Masoud Tabnak [2007] the Court of Appeal (Criminal Division) found that a failure to co-operate based on a fear of persecution or serious harm under the Refugee Convention and Article 3 of the Human Rights Convention, could not amount to a ‘reasonable excuse' for not complying with the requirement imposed under section 35(1) of the Act. The Court confirmed the decision of the trial judge that "To allow fear of persecution to amount to a reasonable excuse would frustrate the intended aims and objectives of Parliament." The provision is concerned solely with an inability to comply with the practical requirements defined in section 35(2).

8.4 The fear of persecution or serious harm is a defence which has already been considered by the Asylum and Immigration Tribunal, a specialist Tribunal which is best placed to consider whether the defendant's claim for asylum is genuine or not. Such a ruling is conclusive that a person is not a refugee and precludes a defendant from adducing evidence to raise the question of refugee status in criminal proceedings. If a defendant were allowed to raise fear of persecution as a defence at the Crown Court, it would, in effect, be placing the judge and jury in an appellate function over experienced professionals.

8.5 Examples of what might constitute reasonable excuse include the failure to attend an interview because of a medical appointment or difficulties with transport, or needing time for further information. Any claim which is raised as a ‘reasonable excuse' must be substantiated. It is then for the prosecution to prove that the person did not take the appropriate steps to meet the requirement to take specific action and does not have a ‘reasonable excuse' for failing to do so.

This department has assured Parliament that the Secretary of State will only request an individual to take such steps as are required to document him/her if the department intends/is able to remove or deport the individual.  If policy, instructions or a significant legal judgement prevent removal then such cases will not qualify for Section 35 action (for instance if there is a court judgement or if country policy prevents removals to a certain country).  Therefore only cases where there is a reasonable expectation of removal should be put forward for Section 35 action.

Chapter 17 EIG Annex E: Checklist for Referrals to CIT

Implementation of Section 35

The following checklist should be completed before referral to your CIT

1. Annex B (Doc I/V) conducted & IS35 served on individual

2. Individual has had the requirements of IS35 and the consequences of not complying read/explained to him/her

3. Individual has been uncooperative with the redocumentation process at interview

4. Individual has been asked whether he/she will comply with the documentation process

5. Subject has been asked whether he/she has a reasonable excuse for non compliance

6. Reason given for non compliance with documentation process

7. Subject has failed to supply a reasonable excuse for not complying with the documentation process

8. Individual has confirmed that he/she has understood the requirements of Section 35

9. Necessary witness statements have been completed (check draft statements with Crime team before signing)