In the case of SXH v CPS, the Supreme Court considered the Appellant’s Asylum & Article 8 ECHR claim whether the Crown Prosecution Service’s (CPS) decision to prosecute the Appellant who had entered the UK illegally would be in breach of her Article 8 ECHR right. The Supreme Court upheld the High Court and the Court of Appeal’s decision in dismissing the Appellant’s appeal. It was held by the Supreme Court that the decision to prosecute for an immigration related offence did not amount to a breach of the Appellant’s Article 8 ECHR right. The CPS were satisfied that they had considered the proportionality test and there was the evidential evidence at the time of their decision. The Supreme Court judgement did suggest that there was a possibility that unreasonable delay in the continuation of the decision to prosecute may constitute an interference with Article 5 ECHR and consequently Article 8 ECHR. However, the Supreme Court did not elaborate on this point any further as this was not the central issue before the Supreme Court and the point was raised by the Appellant in oral submissions and not pleaded to allow the Secretary of State sufficient opportunity to respond.
SXH v Crown Prosecution Service – Appellant’s Case in her Asylum & Article 8 ECHR claim
The Appellant was born in Somalia and was part of a minority group. The Appellant’s family were victims of severe violence and as a result, both her parents were murdered. The Appellant was raped and also beaten in Somalia. As a result of the violence and danger to her life, the Appellant fled Somalia and travelled to Yemen in December 2008 and later travelled to Holland. The Appellant travelled to the UK on 27 December 2009 using a false passport. On arrival, the Appellant was questioned about her false passport and she subsequently claimed Asylum. Following her Asylum interview, the Appellant was arrested on suspicion of using a false travel document under Section 25 (1) of the Identity Cards Act 2006 (“2006 Act”).
The CPS were satisfied that they had considered the evidential test and there was a basis to pursue criminal proceedings against the Appellant. The CPS also considered the public interest factors and decided that it was in the best interest of the public to prosecute anyone who commits a criminal act and therefore there were grounds to prosecute. The CPS was in the view that the Appellant could not rely upon the Section 31 defence under the Immigration and Asylum Act 1999 (“1999 Act”) as the Appellant had spent a year in Yemen. The Appellant was granted Asylum on 10 June 2010 and the CPS concluded they would no longer pursue criminal proceedings against the Appellant as it was not in the public interest.
Following the grant of the Appellant’s Asylum application, she brought proceedings against the CPS, Home Office and the police for damages on inter alia that her Article 8 ECHR right had been breached. The Appellant’s claims were dismissed by the High Court. The Appellant appealed the High Court’s decision but the Court of Appeal upheld the original decision and dismissed the appeal on the basis that Article 8 ECHR had not been engaged. The Court of Appeal held that the offence of travelling on a false travel document was not an exercise of an Article 8 ECHR right. The Appellant then appealed to the Supreme Court and the appeal was unanimously dismissed. It was held that the CPS was reasonably entitled to proceed with prosecution as the evidential test was satisfied.
SXH v Crown Prosecution Service – Supreme Court Decision on Asylum & Article 8 ECHR claims
The Supreme Court judgement has made the position clear if an individual has committed an immigration related offence they can be prosecuted and that such offence does not engage any protection under Article 8 ECHR. Consequently, the Appellant’s appeal to the Supreme Court was dismissed on all counts. However, the Supreme Court held that Article 8 ECHR may be engaged in circumstances where the CPS have failed in its ongoing duty to review the prosecution of the Appellant and have caused unreasonable delay in the continuation of their decision to prosecute the Appellant constituting an interference with the Appellant’s right to freedom under Article 5 ECHR and consequently her right to private and family life under Article 8 ECHR. The Supreme Court, in any event, did not elaborate any further on this point as this was not the central issue before the Supreme Court and the point was raised by the Appellant in oral submissions and not pleaded to allow the Secretary of State sufficient opportunity to respond.
What does the SXH v Crown Prosecution Service ruling mean for future Asylum & Article 8 ECHR claims?
The Supreme Court ruling has dismissed the substantive claim by the Appellant that Article 8 ECHR was engaged in the CPS’ decision to prosecute her. However, the Supreme Court ruling has helpfully suggested that in certain circumstances Article 8 ECHR can be engaged in Asylum cases. This is where a genuine Asylum Seeker has been able to show fear of persecution from their home State, the CPS would have an ongoing duty not to infringe Articles 5 and 8 ECHR rights by continuing to prosecute on the Asylum Seeker on the basis that it is clear that it would not be in the public interest to do so. It therefore fundamentally important that you take appropriate legal advice from specialist immigration solicitors and barristers before submitting an Asylum and Article 8 ECHR claim to ensure that cogent and detailed argument are put to the Home Office at the earliest available opportunity.
Using Legal Representation for Asylum & Article 8 ECHR claims
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Successful Asylum & Article 8 ECHR claims
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