Navabi & Ors, R v [2005] EWCA Crim 2865 (11 November 2005)

Navabi & Ors, R v [2005] EWCA Crim 2865 (11 November 2005)

Section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is clear and unambiguous; the statutory burden of proof on the defendant is legal and must be discharged on the balance of probabilities; there is no requirement to read down the statute in light of Article 31 of the Refugee Convention; the statutory defence is compatible with Article 6(2) ECHR; the defence of necessity was not available on the facts of Navabi's case.

Citation
[2005] EWCA Crim 2865
Parties
Prosecution: R; Appellant: Fraydon Navabi; Appellant: Senait Tekie Embaye
Jurisdiction
England and Wales
Judgment Date
11 November 2005
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
appeals dismissed
Legal Topics
Burden of Proof, Statutory Interpretation, Asylum and Immigration Act 2004 Section 2, Refugee Convention Article 31, Reverse Burden of Proof, Defence of Necessity, Compatibility With European Convention on Human Rights
Criminal Law Immigration Law Burden of Proof Statutory Interpretation Asylum and Immigration Act 2004 Section 2 Refugee Convention Article 31 Reverse Burden of Proof Defence of Necessity +1 more

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Parties

R

Prosecution

Fraydon Navabi

Appellant

Senait Tekie Embaye

Appellant

Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 Whether section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 must be read in light of Article 31 of the Refugee Convention
  2. 2 Whether the statutory burden of proof on the defendant under section 2(4) is compatible with Article 6(2) ECHR
  3. 3 Whether the standard of proof for the statutory defence should be less than the balance of probabilities

Ratio Decidendi

Section 2 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is clear and unambiguous; the statutory burden of proof on the defendant is legal and must be discharged on the balance of probabilities; there is no requirement to read down the statute in light of Article 31 of the Refugee Convention; the statutory defence is compatible with Article 6(2) ECHR; the defence of necessity was not available on the facts of Navabi's case.

Court Disposition

appeals dismissed

Orders

  • Both appeals against conviction are dismissed.