In Idahosa v R [2019] EWCA Crim 1953 the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum.

The false documents offence exception

The Refugee Convention requires contracting states to refrain from prosecuting refugees for immigration offences which are related to seeking international protection, such as using false documents to enter a country to claim asylum.

In UK law this is given effect by section 31 of the Immigration and Asylum Act 1999, which was hastily implemented in response to the decision in R (Adimi) v Uxbridge Magistrates Court [1999] EWHC Admin 765. In Adimi, it was held that the protection accorded by the Refugee Convention must also apply to refugees who are “in transit” from their country of origin to the country in which they intend to claim asylum.

The 54-day stopover

Mr Idahosa entered the United Kingdom lawfully from Nigeria, with the intention of travelling onwards to Canada to claim asylum. He expected his stay in the United Kingdom to be very brief, but his agent was unable to arrange for him to travel to Canada immediately. In the event, Mr Idahosa waited for 54 days with his bags packed and ready to travel until the agent got him a ticket to Canada.

He was arrested at Gatwick Airport attempting to board a flight to Canada using a false British passport. The false passport was necessary because it allows visa-free travel to Canada. Mr Idahosa claimed asylum and was granted refugee status in the United Kingdom.

Wrongly advised to plead guilty

Mr Idahosa’s bad luck continued when he entered the criminal justice system. The only reason he did not rely on the defence in the first place is that his barrister, who had “considerable experience” in this area of law, failed to advise him that he might have a defence. The Court of Appeal found (at paragraph 73) that this advice had not been given, despite the barrister’s claim that she had in fact given such advice.

As a result, Mr Idahosa pleaded guilty despite having a possible defence. The court decided that because of this failure it was appropriate to consider his appeal notwithstanding his guilty plea.

Purposive approach to section 31

This left the court to decide the main issue, which was whether Mr Idahosa could benefit from section 31 despite being “in transit” for 54 days. The text of the legislation states:

(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he—

(a) presented himself to the authorities in the United Kingdom without delay;

(b) showed good cause for his illegal entry or presence; and

(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

On a strictly literal construction it would therefore appear that Mr Idahosa could not benefit from the defence. But as immigration lawyers know, the provisions of the Refugee Convention which this legislation implements must be interpreted purposively, as they were in Adimi.

The court ruled that when considering a refugee in transit, the defence is available until it becomes apparent that the refugee will not be able to continue their journey beyond the United Kingdom:

An individual fleeing persecution is not obliged to claim asylum in the UK on arrival. However, as and when it becomes apparent to him or her that s/he will not be able to leave in the near future, there is a strong argument that at that point the defence is no longer available. The right option then would be to apply for asylum here, or to present oneself to the authorities and seek in effect Article 31.2 protection. This approach to the section is consistent with the overall philosophy of Article 31 that asylum seekers should act with reasonable expedition.

On the facts of this case, the court concluded that Mr Idahosa remained intent on leaving the United Kingdom for Canada to be reunited with his partner. It only because apparent that he could not do so when he was apprehended at Gatwick Airport.

Therefore, the Court of Appeal quashed his conviction.

This case is a happy ending for Mr Idahosa, who otherwise might have struggled to rebuild his life in the United Kingdom. It is also a great example of the Court of Appeal grappling with a complicated issue of public international law to reach a result which protects fundamental rights.

This article was updated on 21 November to clarify the Court of Appeal’s finding on the advice originally given to Mr Idahosa.