Conflicting messages on Asylum


This article, written by Andrew Morris of Hine Solicitors, was originally posted on the Law Society Gazette on Thursday 24th November 2011 and has been re-published here. To view the original article, please navigate to:


A recent test case involving a former Afghanistan interpreter working for the British army in Helmand province has raised important questions about the decision to prosecute for passport offences and claims for asylum.

Elyas Mohtasham, an Afghan national, began work with the British army in Helmand in 2009. He occupied a ‘high-profile’ position, according to his superior officers, and regularly put his life in danger to assist British troops in communicating with local people. The British army use such fluent English speakers to assist in training troops on local culture and to familiarise the troops with their new surroundings.

They wear full military uniform and patrol with the troops. What set Mr Mohtasham apart from many interpreters is that he witnessed the deaths of five military police officers when they came under fire from insurgents posing as members of the national Afghan police force in 2010.

After receiving death threats from the Taliban, Mr Mohtasham conferred with his family and took the decision to flee his country. He says that letters were left at his family home stating that the Taliban knew who he was and whom he worked for. These contained death threats. He chose to travel to the UK, he says, because he assumed he would be ­protected as a former member of the armed forces.

Mr Mohtasham arrived in the UK in July 2011 without a passport. His was a story that will be familiar to many practitioners in the field of immigration offences. It involved the use of an ‘agent’ to arrange his travel with a false British passport through Dubai to London. He paid over $20,000 to the agent. The agent took his false passport from him before he landed. His Afghan passport was also given to the agent under instructions. It is precisely for this scenario that section 2 of the Immigration and Asylum (Treatment of Claimants) Act 1999 came into force.

Practitioners will also be aware that section 31(1) – Immigration and Asylum Act 1999 – defences under the Refugee Convention do not apply to section 2. This is a worrying scenario, particularly when many of those who leave their country of origin to seek refuge in the UK often do not have a passport.

The status of interpreters working for British forces abroad has for many years been a sensitive subject. A group of Iraqi interpreters is currently making a civil claim against the British government for failure adequately to protect them. Following the withdrawal of British forces in Iraq, the government offered asylum to several hundred interpreters and their families. This was part of a deal where they were given a choice, either to take a cash settlement or to come and live in the UK. The government has never made it an automatic right for interpreters to settle in the UK permanently. This ­contrasts with the practice in both Canada and the US where there is a scheme in place that guarantees ­interpreters working for forces abroad automatic asylum.

Mr Mohtasham was charged with failure to have possession of an identity document when presenting himself for an asylum interview under section 2 of the act.

Section 2 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 UK. The offence is intended to discourage persons from destroying or disposing of their immigration documents while travelling to the UK, especially where the purpose of the destruction is to hide their identity, age or nationality in an attempt to increase the chances of a successful asylum claim or prevent removal from the UK.

Section 5(c) of the act provides that it is a defence for the person to ‘prove that they have a reasonable excuse for not being in possession of the document as specified in section 2’. However, subsection 7(a) states that it is not a reasonable excuse to state that the document was destroyed or disposed of unless it was for ‘reasonable cause’ or ‘out of the control of the person charged with the offence’. Subsection 7(b) further defines situations that would not constitute ‘reasonable cause’, including ‘complying with instructions or advice given by a person who offers advice about, or facilitates, immigration into the UK, unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice’.

Thus the circumstances in which the defence can apply are restricted by this legislation. However, it is difficult to imagine a scenario whereby a genuine refugee would be expected not to comply with the instructions of an agent who is ­ensuring their safe passage to the UK, and to whom they have entrusted their safety.

In a statement made by the prosecution, the decision to discontinue the charge was taken ‘in view of Mr Mohtasham’s contribution to the British forces in Afghanistan’. It remains to be seen whether this will apply directly to other interpreters from Afghanistan, especially after British troops begin to withdraw in 2013.

On 17 August 2011, the Ministry of Defence released information following a freedom of information request in which it was confirmed that 650 local Afghans are employed as ‘patrol interpreters’. Some 21 interpreters have been killed while on patrol since 2006. Although the MoD puts the number of its local Afghan workforce suffering intimidation at only 30 of the entire workforce of 2,230, local sources claim that the tally of threat-related resignations is closer to 30 in the last year alone.

Although the MoD is yet to release an official statement about its policy on asylum claims from Afghan interpreters, it is believed that this case sets a useful precedent (certainly with the press attention it has gathered) – namely that any interpreter working with the British forces would have little difficulty in convincing the court that they had a ‘reasonable cause’ under subsections 5 or 7.

Andrew Morris is a higher rights advocate at Hine Solicitors, specialising in crime and fraud. He acted for Mr Mohtasham in his criminal and asylum proceedings.

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