In Elmi [2022] EWCA Crim 1428, the Court of Appeal quashed the conviction of a failed asylum seeker who had been found guilty of possessing a false identity document. Elmi had not been advised that he could use the defence of a presumptive refugee under s.31 of the Immigration and Asylum Act 1999.

Errors leading to convictions such as Elmi’s are often overlooked with no regard to future consequences. In this case, Elmi’s path to citizenship was blocked and he was unable to work in certain jobs. The Court of Appeal’s decision may offer an olive branch to others who find themselves in similar circumstances.

The facts

Elmi is a Somali national who arrived in the UK in August 2010 using a false Norwegian passport. He claimed asylum at the airport as a member of the Mehari minority sub-clan. The following day he was charged with possession of a false identity document with the intent to use it, contrary to s.25(1) of the Identity Cards Act 2006. He pleaded guilty in the Crown Court and was sentenced to 12 months’ imprisonment. His asylum claim was refused by the Home Office two years later and a deportation order was made.

Elmi appealed to the First-tier Tribunal. His account of his past was found to be credible and correct. It was likely he had been persecuted as a Mehari at some point in the past. Following the country guidance provided in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), he could not considered a targeted under the 1951 Refugee Convention. Instead, he was entitled to humanitarian protection because he was at general risk of serious harm and his return would breach his rights under article 3 of the European Convention of Human Rights. The appeal also succeeded on article 8 grounds due to a genuine and subsisting relationship with his 4-year-old son. Elmi has remained in the UK on humanitarian grounds ever since.

The appeal

Had Elmi been advised of the s.31 defence, he would have pleaded not guilty to possessing a false identity document. The defence is available for a refugee charged with an offence, where they can 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.”

The Court of Appeal had to decide whether his defence would have been likely to succeed and therefore that a clear injustice had been done. The case of R v Boal [1992] QB 591 provides for this course of action. A helpful summary of the case is given in paragraphs 158-159 of Tredget [2022] EWCA Crim 108. It was agreed that Elmi was a presumptive refugee at the time of his trial (see below) and the jury would have received the following direction from the judge:

“Has the prosecution made you sure that the defendant is not a refugee?

If you conclude that he is or might be a refugee, you must return a verdict of not guilty.”

The prosecution argued that the defence would not succeed if Elmi was retried. The First-tier Tribunal had decided after the trial that he was not a refugee and a jury would be bound by that finding. It was not for the Court of Appeal to go behind this decision.

Elmi argued that the prosecution’s position did not consider humanitarian protection alongside refugee protection. The prosecution had already conceded that he had good cause for using a false passport in light of his need for humanitarian protection. Denying Elmi a defence that would be available for those seeking refugee protection (as opposed to humanitarian protection) would be illogical. It was also contrary to the prosecution of trafficking victims.

In any event, the First-tier Tribunal had decided he was not a refugee in 2013, not in 2010 when these criminal proceedings started. The Tribunal’s decision could not be relied upon. If it was to be relied upon in a retrial, Elmi’s subsequent appeal shows that his account was credible and correct. The prosecution could not have rebutted his defence.

The decision

The Court of Appeal broke the issues into three segments.

The scope of the s.31 defence

S.31(6) defines a “refugee” the same way the Refugee Convention does in article 1A. You can read more about the definition of a refugee here. By doing so, the defence presented an “insuperable hurdle” that left “no space for a more expansive definition” to include individuals granted humanitarian protection. However, s.31 does include “presumptive refugees”, which was defined as a person claiming asylum in good faith (see ex p Adimi [2001] QB 667). Elmi was a presumptive refugee a the time of his trial and it was for the prosecution to rebut this position.

Would his defence have succeeded?

The Court of Appeal found that the First-tier Tribunal’s decision would not have helped the jury. It did not speak to his status at the time of his trial. In answering this question, the court had to undertake a “highly artificial exercise” of re-creating his evidence at trial. They drew assistance from the Tribunal’s findings on Elmi’s consistency and credibility:

“We think it likely that the appellant would have chosen to give evidence to support his defence, and in doing so he would have told the jury the same story as he had given to the Secretary of State in his screening interview and two asylum interviews, and as he ultimately provided to the [First-tier Tribunal]. This story contained harrowing details of the treatment meted out to him and his family in Somalia, including the murder of his father, the rape of his sister, his own near death by shooting, bombs being thrown into his house and further attempts to shoot him. He would have explained that the reason for these attacks was that he was a member of the Mehari sub-clan.”

The court held that a jury would have believed his evidence. At the very least, the jury would not have been able to say with certainty that it was untrue. In doing so, the court observed that the evidential hurdle applied in the Crown Court was lower than the one in the First-tier Tribunal.

Had there been a clear injustice?

The Court of Appeal found that as a matter of fact that there had been a clear injustice in Elmi’s conviction. Regarding the negative asylum appeal, the court said “…it cannot be suggested that the [First-tier Tribunal’s] subsequent conclusion that he was not a refugee somehow moderates or cures the injustice to the appellant of not being made aware that he could raise the defence in 2010”.

What can be taken away?

Criminal and asylum proceedings can often run in parallel, along with a multitude of other issues faced by someone fleeing persecution. Immigration practitioners should be mindful of the s.31 defence and the offences to which it applies. It is also worth reading the CPS’ guidance on the subject to ensure that the defence is signposted and properly evidenced, so that it is properly put to a client who is charged. In my own experience, I have seen those seeking asylum put on notice at their screening interview that the Secretary of State considers they have engaged in deception under s.24A of the Immigration Act 1971. It therefore continues to be a live issue.

The Court of Appeal highlighted the considerable deference it gives to the First-tier Tribunal’s expertise and the comparatively lower standard of proof in the criminal courts. When preparing submissions for an asylum appeal, it may be useful to consider the wider consequences of factual and legal findings which would support criminal proceedings. A more common scenario is the refusal of citizenship on good character grounds. Elmi shows that it may be worth digging out the client’s First-tier Tribunal decision and going through it with a fine tooth-comb.