No Judicial Review of Asylum Prosecutions: Reaffirming the Kebeline Principle and Section 31 Defence under the Windsor Framework

Introduction

This commentary examines the Court of Appeal in Northern Ireland’s decision in Shahriyari v Public Prosecution Service [2025] NICA 17, delivered 10 April 2025. The applicant, Mitra Shahriyari—an Iranian national and pending asylum seeker—sought leave for judicial review of the PPS decision to prosecute her for illegal entry (Immigration Act 1971, s. 24) and possession of a false identity document (Identity Documents Act 2010, s. 6). She challenged the prosecution on multiple grounds, including breach of the Windsor Framework, ECHR rights, Common Travel Area obligations, and Wednesbury irrationality. The Court refused leave, reaffirming key principles on the proper forum for prosecutorial challenges and the operation of the statutory Section 31 defence to offences committed in the course of flight from persecution.

Summary of the Judgment

The Divisional Court refused leave to apply for judicial review on all grounds.
It held that the proper forum for challenging prosecutorial decisions in criminal proceedings is the criminal court itself (the “Kebeline principle”), absent exceptional circumstances.
The Court found no diminution of rights under Article 2(1) of the Windsor Framework, as the offences and detention powers existed pre-Brexit.
It rejected claims under the Common Travel Area and various EU directives as unarguable or inapplicable.
The decision-making process of the PPS was neither unlawful nor irrational; the applicant retains full scope to raise the Section 31 defence in criminal trial.

Analysis

Precedents Cited

R v DPP ex parte Kebeline [2000] 2 AC 326: Established that prosecutorial decisions are not amenable to judicial review except in cases of dishonesty, mala fides or exceptional circumstances. Shahriyari reaffirms that challenges to prosecution should proceed by pre-trial or trial applications (e.g., no-bill, abuse of process) rather than judicial review.
Sharma v Browne-Antoine [2006] UKPC 57: Formulated the low threshold for leave to apply for judicial review—arguable ground with realistic prospect of success. Reiterated in Northern Ireland in Re Ni Chuinneagain’s Application [2021] NIQB 79 and [2022] NICA 56.
R v Uxbridge Magistrates’ Court, ex p Adimi [2001] QB 667: Pre-statutory defence decision recognising article 31(1) Refugee Convention immunity for genuine refugees; shaped enactment of Section 31 Immigration and Asylum Act 1999.
R v Asfaw [2008] UKHL 31: House of Lords held that Section 31 should be given purposive interpretation in line with Convention aims, covering offences connected to flight from persecution.
SXH v Crown Prosecution Service [2017] UKSC 30: Held that prosecution of asylum seekers for use of false documents does not engage Article 8 ECHR in a way that bars prosecution.

Legal Reasoning

The Court’s reasoning proceeds in two main strands:

Proper Forum for Challenge (Kebeline principle):
- Prosecutorial decisions in extant criminal proceedings ordinarily fall within the criminal process. Any challenge to the adequacy of evidence, Convention rights or statutory defences (e.g., Section 31) should be ventilated at trial by way of pre-trial applications or raised before the Crown Court.
- Absent dishonesty or mala fides by the PPS, a Divisional Court is not the appropriate forum. The trial judge is better placed to assess factual questions underlying the Section 31 defence and other arguments.
Substantive Merits of EU and Human Rights Grounds:
- No diminution of rights under Article 2(1) Windsor Framework because the relevant offences and detention powers existed pre-Brexit and apply equally to asylum applicants today as before 31 December 2020.
- Common Travel Area obligations do not confer substantive rights on non-citizens, nor import EU free-movement or non-discrimination rules; the CTA is an inter-State arrangement distinct from EU law.
- The applicant’s reliance on EU Directives and CFR articles was misplaced: recitals have no binding force, and the Dublin III Regulation provisions on detention do not apply because there is no take-back request under the Regulation.
- Wednesbury unreasonableness was not established—the PPS decision-making letter was thorough, addressed statutory and public-interest factors, and undertook not to proceed with the illegal entry charge if the Section 31 defence succeeded on the false documents count.

Impact

This decision carries significant implications:

It reinforces the strict division between judicial review and criminal trial processes in prosecutorial challenges, emphasizing the Kebeline principle.
It clarifies that the Windsor Framework does not create new procedural or substantive shields for asylum seekers beyond pre-existing domestic or Convention-derived rights.
The ruling underscores the centrality of Section 31 Immigration and Asylum Act 1999 as the statutory vessel for Convention article 31 protections, to be applied and tested in criminal courts.
Practitioners are warned to avoid over-reliance on novel Windsor Framework arguments without clear legal foundation, to prevent protracted satellite litigation.

Complex Concepts Simplified

Kebeline principle: A prosecutorial decision cannot normally be reviewed by a civil/judicial review court once criminal proceedings have begun; the criminal courts are the proper venue.
Section 31 defence: A statutory embodiment of article 31(1) Refugee Convention immunity, allowing refugees to avoid penalties for illegal entry or document offences if they prove flight-related factors (direct route, no unreasonable delay, good cause).
Wednesbury unreasonableness: A high threshold requiring that no reasonable authority, acting properly, could have made the decision in question.
Windsor Framework: Part of the UK-EU Withdrawal Agreement guaranteeing no “diminution of rights” post-Brexit; here held inapplicable where no change in domestic practice or law occurred.
Common Travel Area (CTA): A longstanding UK-Ireland arrangement allowing free movement of British and Irish citizens only; it does not grant rights to non-citizen asylum seekers.

Conclusion

Shahriyari [2025] NICA 17 reaffirms that challenges to prosecutorial decisions in ongoing criminal cases must be addressed within the criminal process under the Kebeline principle. The decision clarifies that the Windsor Framework does not extend procedural immunities or negate prosecutions for offences dating from before Brexit. It underscores the primacy of the Section 31 statutory defence for genuine refugees—and its proper testing in criminal courts—while discouraging collateral, satellite litigation in the Divisional Court. This ruling will guide both prosecutors and defence counsel in framing challenges to asylum-related prosecutions and discourages unnecessary procedural diversions.