Factual and Procedural Background
The Applicant, a national of The State, fled The State on 20 November 2007 because of persecution and violence directed at her minority clan. An agent arranged travel via multiple states and supplied a false travel document. On 28 November 2007 she arrived in The State and presented the false travel document to immigration officials. She was arrested and immediately claimed asylum.
The Applicant was charged with an offence under section 25(1) of the Identity Cards Act 2006. On advice from her legal representatives she pleaded guilty on 7 December 2007 and was sentenced to 12 months' imprisonment. On 3 May 2008 the Secretary of State refused her asylum claim and on 22 May 2008 made a deportation order. The Applicant appealed the deportation decision to the Asylum and Immigration Tribunal, giving evidence at a hearing on 23 September 2008. The Tribunal found her account credible and on 1 October 2008 allowed her appeal against deportation on asylum and human rights grounds. The Secretary of State accepted the Tribunal's findings on 6 October 2008 and granted refugee status; leave to remain followed in April 2009 and indefinite leave to remain in August 2014.
On 24 October 2025 the Applicant applied for leave to appeal her 2007 conviction, seeking an extension of time of approximately 18 years on the ground that she had not been advised of a statutory defence under section 31 of the Immigration and Asylum Act 1999 at the time of her guilty plea. The application was referred to the full court. The prosecution does not oppose the application. By judgment dated 7 July 2026 the court granted the extension of time, granted leave to appeal, allowed the appeal and quashed the conviction.
Legal Issues Presented
- Whether the Applicant was entitled to an extension of time (approximately 18 years) to seek leave to adduce fresh evidence and to appeal her conviction on the ground that she was not advised of a possible section 31 defence at the time of pleading guilty.
- Whether, on the merits, a defence under section 31 of the Immigration and Asylum Act 1999 would "quite probably" have succeeded had it been raised when the Applicant pleaded not guilty.
- Whether the change or clarification in the law (notably the decision in the leading authority decided after the plea) affects the availability of out-of-time leave and requires a showing of substantial injustice.
Arguments of the Parties
Applicant's Arguments (Attorney Bunting)
- The Applicant was not advised of a possible defence under section 31 of the Immigration and Asylum Act 1999 at the time of prosecution and pleaded guilty as a result.
- Had she been advised of the section 31 defence she would have pleaded not guilty and that defence would quite probably have succeeded.
- The conviction has continuing adverse effects amounting to substantial injustice (repeated refusals of British citizenship, inability to travel, employment restrictions, shame and stigma).
Respondent's Position (Attorney Marsland)
- The prosecution does not oppose the application.
- Conceded that the Applicant was not advised about a possible section 31 defence, that such a defence would quite probably have succeeded, and that at the time of the plea the Applicant could have adduced sufficient evidence to raise refugee status which the prosecution could not have disproved to the criminal standard.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Adimi) v. Uxbridge Magistrates' Court [1999] EWHC Admin 765 |
Article 31 protection extends to refugees using false documents; short stopovers en route do not automatically forfeit protection. |
Used to show Article 31's broad construction and to support the proposition that use of false documents can be protected. |
| R (Pepushi) v CPS [2004] EWHC 798 (Admin) |
Section 31 of the IAA is narrower in scope than Article 31; section 31(2) limits availability where refugee stopped in another country unless they could not reasonably have expected protection there. |
Relied on to contrast domestic statutory scope with Article 31 and to frame the limits of the statutory defence. |
| R v Asfaw [2008] UKHL 31 |
Section 31 is capable of providing immunity from criminal penalties for refugees in continuing flight even after a short stopover; Refugee Convention to be given purposive construction. |
Key change/clarification in law which demonstrated that a short transit stopover was not necessarily fatal to a section 31 defence; central to assessing whether the defence would have succeeded. |
| R v Mateta [2013] EWCA Crim 1372 |
Sets out evidential and legal burdens for a section 31 defence and the elements a defendant must prove or raise. |
Applied to identify the evidence the Applicant would have needed and to assess that the Applicant could likely satisfy those requirements. |
| R v AUS [2024] EWCA Crim 322 |
Summarised key principles for section 31 cases: duty to advise, possibility that a guilty plea may be a nullity, the Boal threshold for intervention, and reference to Tribunal findings. |
Adopted as authoritative guidance on duty to advise and the test for reopening guilty pleas and extensions of time. |
| R v Boal [1992] QB 591 |
Principle that the court will intervene "most exceptionally" where it believes the defence would "quite probably have succeeded" and a clear injustice has been done. |
Applied as the threshold test for allowing intervention where a guilty plea is challenged. |
| R v Sadighpour [2013] 1 WLR 2725 |
Where the defendant's case has been considered by the First-tier Tribunal, this court should assess prospects by reference to tribunal findings. |
Used to justify reliance on the Asylum and Immigration Tribunal's findings when assessing prospects of success of the section 31 defence. |
| R v Tredget [2022] EWCA Crim 108 |
Re-affirmed the Boal principle. |
cited to confirm high threshold for interference with guilty pleas. |
| R v Jogee [2016] UKSC 8 |
Principle on change of law: convictions based on faithful application of law as it stood require exceptional leave to appeal out of time; substantial injustice must be shown. |
Applied to frame the requirement for demonstrating substantial injustice when extension of time is sought due to change in law. |
| R v Johnson [2016] EWCA Crim 1613 |
Further exposition of the requirement that substantial injustice be shown for out-of-time appeals after a change in law. |
Relied on alongside Jogee to set the test for extension of time in change-of-law cases. |
| Ordu [2017] EWCA Crim 4 |
Authority on lengthy extension of time applications in very similar facts; refused extension where no continuing impact of the conviction was shown. |
Distinguished and followed as guidance; caused the court to seek further evidence of substantial injustice before deciding the present long-extension application. |
| JM [2021] EWCA Crim 1137 |
Additional guidance on extensions of time in change-of-law cases. |
Referred to for further guidance on whether substantial injustice existed to justify the long extension. |
| Other authorities mentioned in the judgment (e.g. Makuwa, Jaddi, MA) |
Authorities cited in support of evidential and substantive points concerning section 31 elements and timing of asylum claims. |
Used in the judgment's exposition of the section 31 elements as part of the chain of authority considered. |
Court's Reasoning and Analysis
The court proceeded by (i) assessing whether, on the evidence available at the time of prosecution and as subsequently tested by the Tribunal, there was sufficient material to show that the Applicant was a genuine refugee; (ii) determining whether the Applicant would likely have been able to raise and succeed in a section 31 defence; and (iii) considering whether exceptional leave to appeal out of time should be granted given the long delay and the change/clarification in the law.
On the first point the court found the Tribunal's 2008 findings credible and accepted by the Secretary of State when refugee status was granted; those findings established that the Applicant was a genuine refugee. On the second point the court concluded the Applicant would likely have been able to demonstrate, on the balance of probabilities, the matters required to raise a section 31 defence: transit through a state that could not be expected to afford protection, a short stopover in another state that was explicable, presenting to authorities without delay on arrival in The State, and good cause for illegal entry because she travelled without valid documents fleeing persecution. The prosecution conceded these points.
On the third point the court considered the law on extensions of time where the applicant relies on a change in law: an out-of-time appeal requires a showing of substantial injustice (as framed by authority). The court considered prior similar authority refusing long extensions where no continuing impact was shown (Ordu) and, after adjourning for further evidence, reviewed the Applicant's statement of continuing adverse effects. The court accepted that those continuing effects (repeated refusals of naturalisation based solely on the conviction, inability to travel due to lack of passport, employment restrictions arising from disclosure on enhanced checks, and ongoing shame and stigma) amounted to substantial injustice.
Given (a) the conceded failure to advise the Applicant of the section 31 defence, (b) the likelihood that such a defence would have succeeded, (c) the Tribunal findings corroborating refugee status, and (d) the material ongoing prejudice amounting to substantial injustice, the court concluded it was in the interests of justice to grant exceptional leave to appeal out of time and to allow the appeal.
Holding and Implications
The court granted the extension of time, granted leave to appeal, allowed the appeal and quashed the conviction.
Consequences: The Applicant's conviction under section 25(1) of the Identity Cards Act 2006 has been quashed. The direct effect is relief to the Applicant from the historic conviction and its ongoing adverse consequences (as identified in the Applicant's evidence). The judgment does not purport to create a new rule of law beyond applying and distinguishing existing authorities; it resolves the application on the facts before the court.