On 13 March 2024, in AUS v R [2024] EWCA Crim 322, the Court of Appeal quashed the 2010 conviction of a Somali citizen who was sentenced to 12 months’ imprisonment for possession of a false identity document, contrary to s25(1) of the Identity Cards Act 2006. The applicant was not advised by her former criminal representatives that a defence was available to her under s31 of the Immigration and Asylum Act 1999 (the “refugee defence”).

The Vice President, Lord Justice Holroyde, read the court’s judgment, concluding at [26] that the applicant:

“did not receive the advice she should have received to the effect that she could advance a defence which would quite probably have succeeded. She has thereby suffered a clear injustice. She would not have pleaded guilty, served her sentence of imprisonment and suffered all the consequences of her conviction if she had been advised of the section 31 defence”.

Background

The applicant fled Somalia following an attack on her home in which her two sons were killed. She travelled to the UK via Dubai, Belgium and Germany. Her asylum claim was refused and an appeal to the First-tier Tribunal dismissed. The Home Office then began deportation proceedings and a further appeal against deportation was dismissed. Thereafter the applicant pursued numerous protection and human rights claims, but all were refused due to purported inconsistencies.

In 2018 Wilson Solicitors LLP took up the applicant’s case and evidenced that she had trauma-related mental health symptoms and scars consistent with her account of ill-treatment in Somalia. A fresh claim was refused but this time the applicant was given a right of appeal. The appeal succeeded and the applicant finally received refugee status in 2021. This founded the applicant’s successful case to have her conviction quashed.

The refugee defence

The case focused on the statutory refugee defence at section 31 of the Immigration and Asylum Act 1999:

Defences based on Article 31(1) of the Refugee Convention

(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.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country

The court recited the important principle, as set out in R v Mateta [2013] EWCA Crim 1372 at [21], that:

the fact a refugee stopped in a third country in transit is not necessarily fatal and may be explicable: the refugee has some choice as to where he might properly claim asylum. The main touchstones by which exclusion from protection should be judged are the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape.

In this case the applicant’s time in Dubai was essentially immaterial as the United Arab Emirates was not a signatory to the Refugee Convention, and her time in Belgium and few days in Germany were deemed to be short stopovers which were not capable of invalidating the defence. The other elements of the defence were clearly satisfied and therefore the failure of her previous representatives to advise the applicant about the refugee defence meant that her guilty plea was a nullity.

Extension of time

The court went on to consider whether it was appropriate to extend time by more than 12 years. The applicant was required to show good reasons for the extension and that it would be a significant injustice not to extend time. The court accepted at [29] that the applicant had “provided a comprehensive account of the reasons for the passage of so many years” and, importantly perhaps for those acting in similar cases (although each case will be considered on its own facts), her immigration solicitors: “understandably, waited until the successful conclusion of her asylum appeal before referring her to her present solicitors”.

The Vice President stated at [31]:

“we are satisfied that a refusal of the necessary extension of time and the consequent refusal of leave to appeal would cause significant injustice to the applicant. Her leave to remain is limited in time, and she remains liable to deportation on the basis of her conviction of this offence. The uncertainty of her position imposes many restrictions on her and gives rise to continuing stress and anxiety”.

It was relevant that the letter accompanying the grant of asylum contained a warning that the Home Office still considered the applicant’s deportation to be conducive to the public good. The applicant also supplied medical evidence of the harm the conviction continued to have on her mental health.

It seems that, somewhat perversely, the applicant was also assisted by the Home Office’s draconian policy shift concerning citizenship. On 31 July 2023, the Nationality: Good Character Requirement policy was updated with the effect that persons will now generally be refused citizenship where they have received a custodial sentence of 12 months on the basis that they are not considered of “good character”. The previous 15-year period after which a 12-month sentence would no longer be a barrier to an application for citizenship was abolished, i.e. there is no longer a time limit for the refusal of citizenship.

Comment

This judgment demonstrates the incoherence of recent government policy and legislation concerning the criminalisation of refugees. The statutory refugee defence was added to the statute books in 1999 to ensure the UK was better able to comply with its obligations under Article 31 of the Refugee Convention.

As Lord Bingham observed in R v Asfaw [2008] UKHL 31: “The decision in Adimi exposed a serious lacuna in our domestic law, which failed to give any immunity against criminal penalties in accordance with article 31. Steps were hastily taken to make good the omission, by enactment of section 31 of the Immigration and Asylum Act 1999”. However, the defence applies to very few offences:

(3) In England and Wales and Northern Ireland the offences to which this section applies are any offence, and any attempt to commit an offence, under—

(a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);

(aa) section 4 or 6 of the Identity Documents Act 2010;

(b) section 24A of the 1971 Act (deception); or (c)section 26(1)(d) of the 1971 Act (falsification of documents).

Notably, it does not apply to the new offences created by the Nationality and Borders Act 2022 (found at ss24(D) and 25 of the Immigration Act 1971), of illegal arrival and facilitating illegal arrival to the UK, which have led in recent times to the imprisonment of many refugees for crossing the Channel. The logic of Article 31, and indeed of the statutory defence, is that: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees”. [Emphasis supplied]

Lord Bingham noted in 2008 that the failure to protect against punishment for illegal entry was “perplexing” (see Asfaw at [28]), but that failure was perhaps of less practical significance previously because the government was not so intent on imprisoning refugees as it now is.

The failure is particularly surprising given that false document offences are protected by the refugee defence despite being a more serious form of offending (as the Court of Appeal confirmed in R v Aydin Ginar [2023] EWCA Crim 1121 at [18]). The lack of statutory protection for those arriving without permission remains perplexing and warrants urgent consideration by any government purporting to have an interest in fulfilling its international obligations.

Colin Gregory of Bhatt Murphy Solicitors (also based at the University of Leeds), and Pippa Woodrow and Daniella Waddoup of Doughty Street Chambers acted for AUS.

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