SXH (Appellant) v CPS (Respondent) UKSC 2014/0148 relates to an asylum seeker who fled her native Somalia in 2008 because of suffering extreme sexual and physical violence and arrived in the UK in 2009 via Yemen and Holland. “SXH” hails from the minority Bajuni community. The Darood clan murdered her father. Her mother died in Al-Shabaab related violence. It is undisputed that she could not obtain proper documentation in Somalia. However, she was detained and charged with possessing a false document under section 25(1) of the Identity Cards Act 2006 – repealed by the Identity Documents Act 2010 – when it emerged that she had entered the UK using a false travel document. She was granted asylum and released from custody. In the hearing on 19 July 2016, Lord Mance, Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson considered three important issues, namely (i) whether her entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation engaged article 8 of the ECHR (ii) whether the prosecution decision was disproportionate and (iii) what is the appropriate threshold for engaging article 8. UNHCR is intervening in these proceedings. Lord Mance granted provisional anonymity to SXH at the outset of the hearing. A final decision on anonymity will be made at the disposal of proceedings.
SXH said that the false travel document had been given to her an agent. Advised to travel to the UK, she did not claim asylum in Holland because it was unfamiliar to her. In June 2010, the prosecution offered no evidence and a formal verdict of not guilty was entered at Chelmsford Crown Court. Since the Crown Prosecution Service (CPS) is a public authority within the meaning of section 6 of the Human Rights Act 1998, SXH complained that the decision to prosecute her constituted an unlawful interference with the right of respect for her private life under article 8 and entitled her to damages. The Court of Appeal held that the offence under section 25 did not interfere with the right to private life but if it did, it was a proportionate interference with that right in pursuit of the legitimate aim of preventing crime and disorder.
The decision to prosecute someone for the offence could engage her right under article 8 but short of extremes, it was hard to imagine circumstances in which a decision to prosecute for an ECHR compliant offence could be undermined on article 8 grounds. The section 25 offence did not impact SXH’s ability to claim asylum in the UK. Possessing false documentation was not a manifestation of personal autonomy. Nor could it be construed as an expression of the enjoyment of private life triggering a reasonable expectation of respect. In light of R v G  UKHL 37, Pitchford LJ held that the offence failed to engage article 8.
Prior to that the High Court held that, only in very specific circumstances, article 8 might be capable of being engaged by a decision to prosecute. Dismissing her claim for damages under section 7 of the 1998 Act, Irwin J found that SXH had not partaken in activity constituting a part of her private life by presenting false identification papers to immigration officials. Conflating any possible consequences of prosecuting her with an actual interference with article 8 was not “good sense” because:
79. … It would introduce a spongy and uncertain relativism into the criminal law.
The high water mark of the CPS’s case was that the section 25 provision creates a criminal offence subject to the statutory defence in section 31 of the Immigration and Asylum Act 1999, i.e. that when coming from a country where her life or freedom was threatened, SXH stopped in another country but could not reasonably have expected to be given protection there. In Asfaw  UKHL 31, it was held that a genuine refugee was not to be deprived of the section 31 defence merely because of being in transit in the UK to the country in which asylum would be claimed, namely the USA.
Because she was seeking asylum to try to protect and advance her personal and sexual autonomy, SXH argued that without false identification documents she could not exercise her right to seek asylum, and that therefore the decision to prosecute someone in her position for the section 25 offence constituted an interference with the right to respect for her private life. She submits that it was possible to avoid committing the offence by destroying or disposing of the false document between disembarkation and passport control. By analogy, under Thet v DPP  EWHC 2701 (Admin) she could then avail the defence to a prosecution under section 2(1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 because she had a reasonable excuse for not being in possession of a genuine document under section 2(4)(c).
However, Pitchford, Beatson and Gloster LJJ held that it could not be said that there was no public interest in, or legitimate aim to be served by, commencing the prosecution for an offence under section 25 of a defendant such as SXH who could not have obtained genuine travel documents. The court rejected the argument that the prosecution was disproportionate because it was not deferred. If the court’s conclusion regarding prosecuting an ECHR compliant offence was misplaced, the key question remained whether the decision to prosecute was in accordance with the law and necessary in a democratic society.
Pitchford LJ found no “pure chance” element regarding whether SXH would be prosecuted. He reasoned that she had lived in Yemen for a year before making her way to the UK. Now embroiled in a deadly civil war where British weapons are used by the Saudi led coalition to attack civilians, in early 2014 Yemen was seen by his Lordship as “a Refugee Convention country which welcomed those fleeing from violence and turmoil in Somalia.” The main issue was whether the decision to prosecute was ECHR compliant. Therefore, it was immaterial that the CPS had been misinformed at the outset of the prosecution that there were no practical means to claim asylum in Yemen.
The burden rested on SXH to establish that she could not reasonably have been expected to seek asylum there. No explanation had been provided either in the screening interview or in her interview under caution. “Investigation and expert analysis,” by the home office was needed in connection to her lengthy stay in Yemen. This aspect of her case placed it outside the sphere of a simple assessment whether the asylum claim was genuinely made. This was so irrespective of the home office’s view that conditions for Somali migrants in Yemen were very harsh and it was reasonable for them to find less desperate conditions elsewhere.
Pitchford LJ held at para 73 that it was “unrealistic” to expect a full investigation of SXH’s experience in Yemen prior to the decision to prosecute being made because “it was unknown by what date those enquiries would be completed.” Rejecting various arguments, he went on to hold that:
74. … Section 25 of the Identity Cards Act 2006 is not aimed only at those who have access to genuine identity documents; it is aimed at all those who use false identity documents.
Ultimately, when making the decision whether to prosecute, it was not for the prosecutor to become enmeshed in evaluating the risk of detention pending trial or the probable sentence on conviction because such adjudication lies in the judiciary’s domain. The appeal was therefore dismissed.
In Johnson  UKSC 56 (see here), transforming British nationality law, the Supreme Court recently overturned a seemingly impenetrable decision of the Court of Appeal and it will be interesting to see whether something similar occurs in this case.