Labour's tough stance on immigration may have forced courts to send asylum-seekers back to their home countries to face "torture or death", one of the most senior judges in England and Wales has warned.
Lord Justice Sedley, a Court of Appeal judge, accuses the Government of threatening the independence of the judiciary by imposing a rule that obliges judges to dismiss an asylum-seeker's story if that refugee has fled their home country using a false passport. Sir Stephen Sedley, writing in the London Review of Books, warns that such a measure "is a serious invasion of judicial independence".
The judge, who caused controversy this year over his call for a national compulsory DNA database, said: "As is obvious, many people fleeing persecution have no option but to travel on false papers. An enactment which may have the effect of prescriptively requiring a judge to disbelieve an individual's otherwise credible story, and so possibly send them back to torture or death, is a serious invasion of judicial independence."
Sir Stephen is supported by immigration judges and other members of the senior judiciary, as well asylum campaign groups.
The law was first brought in under the 2004 Asylum and Immigration (Treatment of Claimants, etc) Bill, which also proposed ending an asylum-seeker's right to appeal against their asylum decisions in court. That part of the Bill was thrown out after MPs raised a political storm.
Asylum groups say scores of refugees may have been sent back to face further persecution because of the legal direction on false documents. Many asylum- seekers fleeing torture have little choice but to use false travel documents, they said.
In his article on the legal problems of introducing a written constitution in the UK, Sir Stephen said the "false-passport" rule illustrated the strains between the executive and the legislature in passing law. He said of the impact of the passport rule: "Immigration judges for the most part manage to minimise its effect, but it is not the proudest moment for humanitarian protection or judicial independence in the UK."
A UK Border Agency spokesman said: "We do not enforce return unless we are satisfied that it is safe to do so. The Government remains committed to removing from the UK those who have no lawful basis to stay here."
Veronique Mikanda, 51: Forced to use false papers for entry
Ms Mikanda fled the Democratic Republic of Congo (DRC) after her husband and two children were murdered by forces loyal to the rebel leader Laurent Nkunda. She was raped by Nkunda's soldiers. Ms Mikanda came to the United Kingdom in 2003 using a false French passport. She was arrested on arrival and sentenced to four months in jail. On 6 July 2006 her claim for asylum was rejected and she was detained at Yarl's Wood detention centre in Bedfordshire. She has since been released on health grounds and awaits deportation to the DRC. Jan Shaw, Amnesty International's UK Refugee programme director, said: "Many people have to use false papers in order to leave their home country safely when they're fleeing persecution. They should not be penalised for doing this. In many cases, where people promptly present themselves to the authorities and apply for asylum upon arrival, penalising them for having a false passport could be in breach of the refugee convention."