Factual and Procedural Background
On 23rd October 2007, the Appellant pleaded guilty to an offence of possessing identity documents with intent contrary to section 25(1), (2), and (6) of the Identity Cards Act 2006 and was sentenced to 9 months' imprisonment on the same day. The Appellant now seeks an extension of time of 8 years and 3 months to apply for leave to appeal against his conviction. The application was referred to the full court by the Registrar.
The offence charged was under a section of the Identity Cards Act 2006 which has since been repealed and replaced by the Identity Documents Act 2010. The relevant provisions criminalised possession of false or improperly obtained identity documents with intent to use them to establish registrable facts about oneself or others.
A statutory defence was available under section 31 of the Immigration and Asylum Act 1999, based on Article 31(1) of the Refugee Convention, allowing refugees who arrived directly from a country where their life or freedom was threatened to avoid liability if they presented themselves without delay, showed good cause for illegal entry, and claimed asylum promptly. However, this defence was limited if the refugee stopped in another country where protection was reasonably expected.
The law regarding this defence evolved through several key cases. Initially, the defence was interpreted narrowly, excluding those who stopped over in safe countries en route to the UK, as seen in R (Pepushi) v. Crown Prosecution Service [2004]. Later, the House of Lords in R v. Asfaw [2008] clarified that the defence extended to refugees attempting to leave a country, even after short stopovers, thus broadening the scope of protection.
The Appellant arrived in the UK from Germany on 12th October 2007 using a false passport, was detained, disclosed his true identity, and claimed asylum. His asylum claim was granted on appeal in July 2008, recognizing him as a refugee facing persecution if returned to Turkey. He was unaware at the time of the change in law that could have impacted his conviction and only discovered this around 2015 during applications for Indefinite Leave to Remain and UK nationality.
The Appellant applied in February 2016 for an extension of time to appeal his conviction, explaining that he did not know he could challenge it and had pleaded guilty based on earlier legal advice. His original grounds included lack of proper representation and that his travel through Germany was part of fleeing persecution. Later amended grounds criticized prior legal advice based on the changed understanding of the law post-Asfaw.
Legal Issues Presented
- Whether an extension of time should be granted for the Appellant to apply for leave to appeal against his conviction, given the significant delay and change in the law relating to the section 31 defence under the Immigration and Asylum Act 1999.
- How the court should apply the test for granting extensions of time in "change of law" cases, particularly considering the impact of the Appellant’s conviction and the principles established in R v. Johnson and others [2016] EWCA Crim 1613 and Jogee [2016] UKSC 8.
- Whether the Appellant’s conviction is unsafe in light of the evolved interpretation of the s.31 defence and the likelihood that the defence would have succeeded if raised at trial.
Arguments of the Parties
Appellant's Arguments
- The Appellant was unaware of the possibility to challenge his conviction earlier due to lack of proper legal advice and knowledge of the change in law.
- The Appellant’s travel through Germany was involuntary and part of fleeing persecution, thus the s.31 defence should have applied despite the stopover.
- Post-Asfaw case law changes meant that the defence was available but was not raised due to prior counsel’s advice based on earlier, narrower interpretations of the law.
- The delay in applying for leave to appeal was due to late discovery of the law change during immigration status applications.
Crown's Arguments
- The Crown accepts that the s.31 defence was available under the law as clarified by the House of Lords in Asfaw.
- The Crown invites the court to apply the test for extension of time in change of law cases as set out in R v. Johnson and others and Jogee.
- The Crown conditionally concedes that if the extension is granted, the Appellant should have been advised about the s.31 defence and that the defence might well have succeeded.
- The Crown indicates it would not oppose the substantive appeal if leave is granted, acknowledging the probable safety issues with the conviction.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. Uxbridge Magistrates Court ex p. Adimi [2001] QB 667 |
Triggered statutory defence under s.31 IAA 1999 to comply with Refugee Convention obligations. |
Contextualised the introduction of s.31 defence and its limitations. |
| R (Pepushi) v. Crown Prosecution Service [2004] EWHC 798 (Admin) |
Interpreted s.31 narrowly, excluding defence if refugee stopped over in safe countries en route. |
Initially limited the defence; later overruled in principle by Asfaw. |
| R v. Asfaw [2008] UKHL 31; [2008] 1 AC 1061 |
Expanded s.31 defence to include refugees attempting to leave a country, even after short stopovers. |
Changed the law, broadening the availability of the s.31 defence. |
| R. v Kamalanathan [2010] EWCA Crim 1335 |
Clarified jury’s role in s.31 stopover cases as a factual determination. |
Provided guidance but did not change the principle established in Asfaw. |
| R v. AM and other cases [2010] EWCA Crim 2400; [2011] 1 Cr App R 35 |
Applied the test for safety of conviction following guilty plea (Boal test). |
Used as comparative cases but not binding on extension of time test applied here. |
| R v. Mateta and other cases [2013] EWCA Crim 1372; [2013] 2 Cr App R 35 |
Similar to AM, considered extensions of time and safety of convictions. |
Referenced but distinguished due to different test applied for extensions. |
| R v. Johnson and others [2016] EWCA Crim 1613 |
Set out the test for extension of time in change of law cases requiring demonstration of substantial injustice. |
Primary authority guiding the court’s discretion in this case. |
| Jogee [2016] UKSC 8 |
Confirmed the legal principles governing extensions of time and the approach to changes in law. |
Supported the Johnson test and clarified the court’s approach to change of law applications. |
| R v. Boal (1992) 95 Cr. App. R. 272; [1992] Q.B. 591; [1992] 2 W.L.R. 890 |
Test for safety of conviction following guilty plea requiring demonstration of clear injustice. |
Distinguished from the substantial injustice test; relevant for assessing conviction safety. |
Court's Reasoning and Analysis
The court began by reviewing the statutory framework of the offence and the s.31 defence, noting the evolution of the law through key cases culminating in the House of Lords decision in Asfaw, which broadened the defence's applicability. The Appellant's conviction predated this change but the defence was not raised at trial due to counsel’s advice based on the earlier narrow interpretation, given the stopover in Germany.
The court considered the principles governing extensions of time in change of law cases as recently clarified by the Supreme Court in Jogee and the Court of Appeal in Johnson. It emphasized that a mere change in law does not automatically justify an extension; the applicant must demonstrate that a substantial injustice would be caused by refusal.
Applying these principles, the court acknowledged that the Appellant’s conviction would likely be unsafe if the s.31 defence were raised, satisfying the Boal test for safety. However, the substantial injustice test requires more than an unsafe conviction; it requires an ongoing or continuing impact from the conviction.
The court found that the Appellant had served his sentence, had his conviction spent under the Rehabilitation of Offenders Act 1974, and had since obtained Indefinite Leave to Remain and UK nationality. The conviction no longer had practical consequences for him. Thus, quashing the conviction would not remedy any ongoing injustice but merely erase unpleasant memories.
The court also rejected the submission that the absence of a time limit in s.31(8) IAA 1999 implied that no time limits should apply to appeals based on this defence, reasoning that this provision was designed to remedy a past legislative failure and did not override ordinary procedural rules.
While the court regretted that the Appellant was not informed earlier of the change in law, it concluded that the delay and lack of continuing impact meant the substantial injustice threshold was not met. The court distinguished previous cases (AM and Mateta) that applied a different test and emphasized the binding authority of Jogee and Johnson.
Holding and Implications
The court refused the application for an extension of time to appeal the conviction.
The direct effect is that the Appellant’s conviction remains in place, with no leave to appeal granted out of time. The court noted that the Appellant has since achieved a settled status in the UK and that quashing the conviction would not produce any practical benefit or remedy a substantial injustice. No new precedent was established, as the court applied existing authoritative tests for extensions of time in change of law cases.