Adow v R

On 7 December 2007, in the Chelmsford Crown Court before His Honour Judge Gratwicke, the applicant, then aged 26 years, pleaded guilty to one count of possession of an identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006, and was sentenced to 12 months’ imprisonment.

The applicant seeks an extension of time of approximately 18 years in which to apply for leave to adduce fresh evidence and for leave to appeal against conviction, on the ground that she was not advised that a statutory defence under section 31 of the Immigration and Asylum Act 1999 was available to her. Her application has been referred to the full court by the Registrar. The application is not opposed by the prosecution.

The relevant facts can be stated shortly. The applicant is a national of Somalia. On 20 November 2007, she fled Somalia due to persecution and violence against her minority clan. She was in fear for her life but had no passport or lawful means of travel. An agent arranged for the applicant to escape Somalia, travelling via Dubai and Sweden, and provided a false Swedish passport for that purpose.

On 28 November 2007, she arrived in the UK at Stansted Airport and presented to immigration officials the Swedish passport that had not been lawfully issued to her. She was arrested. Immediately after her arrest and detention, she claimed asylum in the UK.

The applicant was charged with an offence under the Identity Cards Act 2006, to which she was advised by her legal representatives to plead guilty. On 7 December 2007 the applicant entered a guilty plea and was sentenced to 12 months’ imprisonment. 

On 3 May 2008 the Secretary of State for the Home Department refused the applicant’s claim for asylum. On 22 May 2008, as a result of her conviction, the Secretary of State made a decision to make a deportation order and notified the applicant of the same.

The applicant appealed against the decision to make a deportation order to the Asylum and Immigration Tribunal. At a hearing held on 23 September 2008 the applicant gave evidence and was cross-examined on her account, together with other witnesses, including her husband and cousin. The applicant explained to the Tribunal that she was a member of the Tunni clan, part of the Bravanese minority, which was regarded as weak. Her family were subjected to numerous attacks over a period of about 10 years; her father was killed and her mother disappeared. She recounted that in an attack on their house, she had been hit over the head, her aunt had been raped and her younger brother’s leg had been burned. Usually it was not safe for her to go outside. In November 2007 men from the majority Hawiye clan and Ethiopian soldiers came to the house, looking for her by name. It was at that point that she left the house to stay with an elderly couple and her aunt arranged for her to leave Somalia. She feared returning to Somalia because, as a lone woman from a minority clan, she would be subject to persecution.

Having assessed her account as credible and reliable, on 1 October 2008, the Asylum and Immigration Tribunal allowed the applicant’s appeal against deportation on asylum and human rights grounds.

On 6 October 2008 the Secretary of State accepted the Tribunal’s findings and granted her refugee status.

On 15 April 2009, the UK Border Agency informed the applicant that she was granted leave to remain in the UK as a refugee and in August 2014 she was granted indefinite leave to remain.

On 24 October 2025 the applicant applied for leave to appeal against her conviction. She seeks an extension of time of approximately 18 years on the ground that prior to 2025 she did not appreciate that she had any legal basis on which to appeal. As soon as she became aware that she had been wrongly convicted, she submitted this application.

Mr Bunting, counsel for the applicant, has helpfully identified the material ground of appeal, namely, that at the time that she entered her guilty plea, the applicant was not advised that she had a defence under section 31 of the Asylum and Immigration Act 1999; had she raised such defence by a plea of not guilty, it would quite probably have succeeded.

The respondent does not oppose the application for leave to appeal against conviction. It is accepted by Mr Marsland, counsel for the prosecution, that:

At the time that the applicant entered the UK, on 28 November 2007, section 25 of the Identity Cards Act 2006 provided:

“25 Possession of false identity documents etc.

(1)

It is an offence for a person with the requisite intention to have in his possession or under his control –

(a)

an identity document that is false and that he knows or believes to be false;

(b)

an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or

(c)

an identity document that relates to someone else.

(2)

The requisite intention for the purposes of subsection (1) is –

(a)

the intention of using the document for establishing registrable facts about himself; or

(b)

the intention of allowing or inducing another to use it for establishing, ascertaining or verifying registrable facts about himself or about any other person (with the exception, in the case of a document within paragraph (c) of that subsection, of the individual to whom it relates).”

Article 31 of the 1951 United Nations Convention Relating to the Status of Refugees (“the Refugee Convention”) provides that contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The Divisional Court in R (Adimi) v. Uxbridge Magistrates' Court [1999] EWHC Admin 765 clarified that the protection from the imposition of criminal penalties for those genuinely claiming asylum, provided by Article 31 of the Refugee Convention, extended to those using false documents. Adopting a broad construction of the requirement that the person seeking protection must come directly from the territory where their life or freedom was threatened, Simon Brown LJ concluded at [17] – [18] that a short term stopover en route to the intended sanctuary would not result in forfeiture of the protection.

Effect was sought to be given to Article 31 in UK domestic law through section 31 of the Immigration and Asylum Act 1999, subsequently amended in 2006 (“the IAA”), which included the following provisions:

“31 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.

(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 –

…

(aa)

section 25(1) or (5) of the Identity Cards Act 2006 …

…

(6)

“Refugee”  has the same meaning as it has for the purposes of the Refugee Convention.”

The scope of the protection afforded by section 31 of the IAA was considered by the Divisional Court in R (Pepushi) v CPS [2004] EWHC 798 (Admin). The court accepted that the interpretation of Article 31 of the Refugee Convention in Adimi was correct but noted that it was not directly incorporated into UK domestic law. Under UK domestic law, section 31 of the IAA made express provision for the relevant defence available to a refugee using a false passport. The court concluded that the defence under section 31(2) of the IAA was narrower in scope than that provided for in Article 31 of the Refugee Convention:

“[21] It is clear from the language of s.31 that it is narrower in scope than Article 31 as interpreted by this Court in Adimi; indeed the position taken by the parties before us implicitly accepts that its scope is narrower. Under s. 31(2) the defence is only available to a refugee who stopped in another country, if the refugee is able to show that he could not reasonably have been expected to be given protection under the Convention in that other country, whereas under Article 31 a short term stopover en route would not forfeit the protection.”

The matter was considered afresh by the House of Lords in R v Asfaw [2008] UKHL 31, in which judgment was handed down on 21 May 2008. In that case, a majority of the House decided that section 31 was capable of providing immunity from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution, even after a short stopover in transit.

Affirming the decision in Adimi, the House concluded that the Refugee Convention (and the IAA) was to be given a purposive construction, consistent with its humanitarian aims. It was thus sufficient to include protection of refugees from the imposition of criminal penalties for infractions of the law reasonably or necessarily committed in the course of their flight from persecution. Although the full scope of section 31 of the IAA was not determined by Afsaw, because the case concerned a refugee who had been stopped in the UK in transit to the United States, it was acknowledged that the fact that a refugee had stopped in a safe third country in transit was not necessarily fatal to a section 31 defence.

The section 31 defence was explained by Leveson LJ in R v Mateta [2013] EWCA Crim 1372 at [21]:

“i)

The defendant must provide sufficient evidence in support of his claim to refugee status to raise the issue and thereafter the burden falls on the prosecution to prove to the criminal standard that he is not a refugee (section 31 Immigration and Asylum At 1999 and Makuwa [26]) unless an application by the defendant for asylum has been refused by the Secretary of State, when the legal burden rests on him to establish on a balance of probabilities that he is a refugee (s. 31(7) of the Asylum and Immigration Act 1999 and Sadighpour [38] – [40]).

ii)

If the Crown fails to disprove that the defendant was a refugee (or if the defendant proves on a balance of probabilities he is a refugee following the Secretary of State's refusal of his application for asylum), it then falls to a defendant to prove on the balance of probabilities that

a)

that he did not stop in any country in transit to the United Kingdom for more than a short stopover (which, on the facts, was explicable, see (iv) below) or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so:

b)

he presented himself to the authorities in the UK "without delay", unless (again, depending on the facts) it was explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum;

c)

he had good cause for his illegal entry or presence in the UK; and

d)

he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom, unless (once again, depending on the facts) it was explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum. (s. 31(1); Sadighpour [18] and [38] – [40]; Jaddi [16] and [30]).

iii)

The requirement that the claim for asylum must be made as soon as was reasonably practicable does not necessarily mean at the earliest possible moment (Asfaw [16]; R v MA [9]).

iv)

It follows 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 (Asfaw [26]; R v MA [9]).

v)

The requirement that the refugee demonstrates "good cause" for his illegal entry or presence in the United Kingdom will be satisfied by him showing he was reasonably travelling on false papers (ex p. Adimi at 679 H).”

We are greatly assisted in this case by the comprehensive analysis of the relevant authorities in R v AUS [2024] EWCA Crim 322 by Holroyde LJ who summarised the key principles of a section 31 defence at [24]:

“(a)

Those representing defendants charged with possession of an identify document with intent are under a duty to advise them of a possible section 31 defence so that the defendant can make an informed decision whether to advance that defence.

(b)

This court can entertain an application for leave to appeal against conviction on the ground that a guilty plea was a nullity.

(c)

However, it is not sufficient for a defendant who has pleaded guilty merely to show that some of the advice he received was wrong, or that a possible defence was overlooked. The principles stated in R v Boal [1992] QB 591 is that this court will only intervene "most exceptionally" and only where the court "believes the defence would quite probably have succeeded and concludes therefore that a clear injustice has been done".

(d)

If the defendant's case has been considered by the First-tier Tribunal, it is appropriate for this court to assess the prospects of a successful defence by reference to the tribunal's findings: see R v Sadighpour [2013] 1 WLR 2725.

The Boal principle has recently been re-affirmed by this court in R v Tredget [2022] EWCA Crim 108.”

We are satisfied that there was sufficient evidence at the time of her prosecution in December 2007 to show that the applicant was a genuine refugee. The account given by the applicant to the Tribunal at the hearing in September 2008 was tested, accepted as credible and sufficient to demonstrate her status as a refugee. The Secretary of State accepted without challenge the findings of the Tribunal and granted the applicant refugee status.

We are also satisfied that the applicant would likely have been able to demonstrate, on the balance of probabilities, the matters required to raise a defence under section 31. The applicant travelled to the United Kingdom via Dubai but could not reasonably have expected to be given protection under the Refugee Convention as the United Arab Emirates is not a signatory to the Convention. Although the applicant stayed in Sweden for about four days, where she could have applied for asylum, that could not be described as more than a short stopover in transit to the United Kingdom. Her failure to seek asylum in Sweden was explicable on the basis that she was a lone woman travelling outside of Somalia for the first time in her life and acted in accordance with the instructions of the agent, who told her that Sweden was not her final destination. The applicant presented herself to the authorities without delay when she arrived in the United Kingdom, notwithstanding that she presented a false passport, and made a claim for asylum. The circumstances in which the applicant fled persecution in Somalia, without any valid travel documents, would have demonstrated that she had good cause for her illegal entry to the United Kingdom using a false passport.

The applicant’s evidence is that she was not advised of the potential section 31 defence at the time of her prosecution. On the contrary, she states that she was advised that there was no defence to the charge and that she should enter a guilty plea to receive a discount on her sentence. That is borne out by the attendance notes prepared at the time; in particular, the solicitor’s attendance note of 29 November 2007, the attendance note of the consultation with counsel on 7 December 2007 and the letter from solicitors dated 18 December 2007.

We note that at that time, prior to the clarification provided by the House of Lords in Asfaw (above), there was a misconception that even a short stopover in a third country where an asylum claim might be made was fatal to a section 31 defence. However, the hearing in Asfaw occurred just two months later, in February 2008, and the opinion of the House of Lords was handed down on 21 May 2008. In those circumstances, we consider that, if the section 31 defence had been advised, the applicant would have pleaded ‘not guilty’. It is likely that such defence would have been successful, if not before the trial judge, then on a successful appeal, following Asfaw.

In the light of our findings, the concessions made by Mr Marsland on behalf of the prosecution in our view are properly made.

We turn then to consider whether the very long extension of time that is sought, of some 18 years, should be granted.

The principles that are applicable, in cases where an appeal against conviction is based on a failure to advise properly on the law as it stood at the time, are set out in AUS (above) at [28] and [30]. The court will grant an extension of time if it is in the interests of justice to do so. An extension or time to appeal against conviction will be granted only where there is good reason to give it, and ordinarily where the defendant will otherwise suffer significant injustice.

However, the application for an extension of time in this case is based on a change in the law. We have considered the principle established by the Supreme Court in R v Jogee [2016] UKSC 8 at [10] and R v Johnson [2016] EWCA Crim 1613at [10]-[23], namely, that a conviction based on a faithful application of the law as it stood at the time can only be appealed by seeking exceptional leave to appeal out of time and this court can only grant such leave if substantial injustice is shown.

Of significance in this case is the decision in Ordu [2017] EWCA Crim 4, a case on very similar facts, concerning an application for a lengthy extension of time to seek leave to appeal against conviction for an offence contrary to section 25 of the Identity Cards Act 2006, on the ground that the applicant was not advised of a potential section 31 defence because of a short stopover in Germany. Having set out the principles applicable to extensions of time in change of law cases at [18] to [21], the Court of Appeal refused an extension of time. At the time the legal advice was given and a guilty plea entered, in October 2007, the availability of the section 31 defence was not apparent; as in the case before us, the clarification in Asfaw had not then been made. The application was therefore based on a change in the law. As such, it was necessary to establish that the applicant in that case suffered a substantial injustice. On the facts of that case, the applicant could not show that there was any continuing impact of the conviction. In those circumstances, the extension of time was refused.

In the light of the decision in Ordu and additional helpful guidance in JM [2021] EWCA Crim 1137, we adjourned the application, so as to give the parties an opportunity to adduce further evidence and make further submissions as to whether there was substantial injustice in this case, which would justify the lengthy extension of time sought.

We have now been provided with a statement by the applicant dated 22 June 2026 and written submissions from Mr Bunting, counsel for the applicant, dated 23 June 2026. The Crown have confirmed they do not wish to lodge any further evidence or submissions.

The applicant’s witness statement sets out the continuing adverse impact of the conviction on her life. First, the conviction acts as a continuing impediment to the applicant becoming a British citizen. She has made three separate applications for British Citizenship, in December 2017, September 2023 and March 2025. Each application has been refused on the ground that she does not meet the requirement of good character, solely on the basis of this conviction.

Second, the conviction affects the applicant’s freedom to travel. The applicant is unable to obtain a British passport and there is no realistic prospect of obtaining a passport from Somalia. Hence, the applicant has no passport. Although she has a UK Convention Refugee Travel Document, this is not recognised by many countries; as a result, the applicant is unable to obtain a visa to travel to the USA or the UAE to visit family and friends.

Third, the conviction precludes the applicant from seeking employment that requires an enhanced criminal record check, such as an Uber taxi driver. The conviction is now spent for the purposes of the Rehabilitation of Offenders Act 1974 but it must be disclosed for the purposes of an enhanced DBS check because the applicant received a custodial sentence – see The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as currently in force.

Finally, despite the applicant living in the UK for over 18 years, having five children (who are British citizens) and acting as a carer for her nephew who has special needs, she remains subject to the shame and stigma of having a conviction in her community.

Having regard to the applicant’s evidence and Mr Bunting’s supplemental submissions, we are satisfied that that the applicant has suffered a substantialinjustice and that exceptionalleave to appeal out of time should be granted.

For the above reasons, we grant the necessary extension of time, we grant leave to appeal, we allow the appeal and we quash the conviction.