Criminal sanctions for non-cooperation: Section 35 action (including guidance from the Crown Prosecution Service)
The Asylum & Immigration (Treatment of Claimants etc.) Act 2004 introduced criminal penalties for individuals who fail to cooperate with attempts to obtain travel documents to facilitate their removal from the UK.
The number of criminal convictions pursued and obtained under this legislation appears to be small when set against the prominence of Home Office assertions of non-cooperation in Monthly Progress Reports and bail summaries. BID has obtained data on the number of criminal prosecutions and convictions under Section 35 of the Asylum & Immigration (Treatment of Claimants etc.) Act 2004 through a series of FOI requests made on 25 November 2011 (request for data from 2010), 11 July 2013 (request for data from 2011 to 2012), 1 August 2013 (request for data from 2004 to 2009), and 6 August 2014 (request for data from January to December 2013). The number of criminal prosecutions and convictions under Section 35 spanning the entire period, since the Act came into force on 22 September 2004, can be found in the table below:
Defendants proceeded against at magistrates' courts and found guilty at all courts offences under Section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 , England and Wales, 2004 to 2014
2004 Proceeded against:0 Found guilty:0
2005 Proceeded against:8 Found guilty:4
2006 Proceeded against:13 Found guilty:7
2007 Proceeded against:12 Found guilty:9
2008 Proceeded against:33 Found guilty:25
2009 Proceeded against:11 Found guilty:7
2010 Proceeded against:8 Found guilty: 8
2011 Proceeded against:1 Found guilty:0
2012 Proceeded against:8 Found guilty:6
2013 Proceeded against:4 Found guilty:2
This section of the Act came into force on 22 September 2004. The figures given in the table relate to persons for whom these offences were the principal offences for which they were dealt with. When a defendant has been found guilty of two or more offences it is the offence for which the heaviest penalty is imposed. Where the same disposal is imposed for two or more offences, the offence selected is the offence for which the statutory maximum penalty is the most severe. Excludes data for Cardiff magistrates' court for April, July and August 2008.
Source: Justice Statistics Analytical Services - Ministry of Justice.
Ref: 581-13 FoI 84521, Ref: 701-11 FOI 73711, Ref: FOI - 519-13 - 84089
It should be noted that in the context of criminal charges laid against an individual for non-co-operation, interview records (e.g. of the ‘first documentation interview') carried out by reporting centre staff or staff from the CCD Prison Operation and Removal Team once an IS35 letter has been issued requesting action to enable a travel document to be obtained, may become an exhibit in a criminal prosecution.
See Home Office 'Enforcement instructions and guidance Chapter 18: 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'
Crown Prosecution Service (CPS) guidance on prosecution for immigration offences including s35 action
Section 35(3) Asylum and Immigration (Treatment of Claimants etc) Act 2004: Non Cooperation with a Request for Information:
Section 35 creates an offence of failing to comply, without reasonable excuse, with actions that the Secretary of State may require someone to take so as to enable a travel document which will facilitate the person's deportation or removal from the United Kingdom to be obtained by that person or on his behalf. The offence came into force on 22 September 2004. This provision was intended to prevent people, who have exhausted all avenues of appeal following a failed asylum claim, to avoid deportation by refusing to sign the necessary documentation that is required before that person can leave the UK.
Under section 35(1), the Secretary of State may require a person to take a specified action if the Secretary of State thinks that:
(a) the action will or may enable a travel document to be obtained by or for the person; and
(b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom.
Section 35(2) defines the specified action required, namely to:
- provide information or documents to the Secretary of State or to any other person;
- obtain information or documents;
- provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye);
- make, or consent to or co-operate with the making of, an application to a person acting for the government of a State other than the United Kingdom;
- co-operate with a process designed to enable determination of an application;
- complete a form accurately and completely;
- attend an interview and answer questions accurately and completely; and
- make an appointment.
Under section 35(3), a person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under section 35(1).
Section 2 Asylum and Immigration (Treatment of Claimants etc) Act 2004: Not Having a Travel Document at a Leave or Asylum Interview
This offence came into force on 22 September 2004. Section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ('the Act') creates an offence of a person not having an immigration document for himself or any dependant children, at a leave or asylum interview on entering the United Kingdom. The offence is intended to discourage persons from destroying or disposing of their immigration documents en route to the United Kingdom, particularly where doing so in order to conceal their identity, age or nationality in an attempt to increase the chances of success of a claim or application or to make consideration of their claim or application more difficult and/or to thwart removal.
Section 2(1) of the Act states:
"A person commits an offence if at a leave or asylum interview he does not have with him an immigration document which
(a) is in force, and
(b) satisfactorily establishes his identity and nationality or citizenship"
An "immigration document" is defined by section 2(12) of the Act as a passport, or a document which relates to a national of a State other than the United Kingdom and which is designed to serve the same purpose as a passport.
A "leave or asylum interview" as defined by section 2(12) of the Act an interview with an immigration officer or an official of the Secretary of State at which a person:
(a) seeks leave to enter or remain in the United Kingdom, or
(b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c.42) as being incompatible with his Convention rights.
It is not the intention of the offence to penalise those who never had an immigration document during the course of their journey to the United Kingdom, or those who use a false immigration document (e.g. a false passport) to travel to the United Kingdom and who produce that document on arrival.
No offences are committed where:
- the interview takes place after the person has entered the United Kingdom (in-country applications), and
- within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.