Badur, R (on the application of) v Birmingham Crown Court & Ors

An offence under section 24A of the Immigration Act 1971 cannot apply retrospectively to conduct completed before that provision came into force. Earlier conduct could still be prosecuted under the repealed provision by virtue of section 16 of the Interpretation Act 1978.

Where a charge is treated throughout as being under the later provision, but the correct charge is under the earlier provision, the resulting misapprehension may materially affect the available refugee defence. A conviction should not be regularised by amendment or substitution where the court cannot be satisfied that the defendant would have been convicted had the correct and wider defence been argued. In such circumstances, the conviction may be quashed without remittal.

The claimant was convicted at Birmingham Magistrates’ Court of seeking to obtain leave to remain by deception. His conviction was upheld on appeal by the Crown Court, following earlier committal and remittal proceedings.

The charge had originally been framed under the earlier summary-only offence in section 24(1)(a)(a) of the Immigration Act 1971, but was later amended to section 24A(1)(a), which was not in force when the alleged conduct occurred. The Crown Court quashed the indictment and remitted the matter to the magistrates. The subsequent conviction and appeal proceeded on the apparent basis that section 24A applied.

The central issues were whether the claimant had been lawfully charged, whether the charge could be amended or substituted after conviction, and whether the mistaken reliance on the statutory defence under section 31 deprived him of the wider protection available under Article 31 of the Refugee Convention.

1. The conviction was quashed. The matter was not remitted to the magistrates’ court, because its long and unsatisfactory history made any further hearing inappropriate.
2. Section 24A(1)(a) of the Immigration Act 1971, as amended in 1999, came into force after the alleged deception and did not operate retrospectively. Once the prosecution treated the deception as occurring during one week in November 1999, the conduct could not be charged under section 24A. The earlier offence under section 24(1)(a)(a), as amended in 1996, remained prosecutable after repeal by virtue of section 16 of the Interpretation Act 1978.
3. The amendment removing the allegation of a continuing offence was permissible, but it meant that the case could only proceed summarily under the earlier provision. The claimant therefore had no lost right to elect trial by jury.
4. The court rejected the submission that the error could be cured merely by correcting the label on the conviction or substituting a conviction under the earlier provision. The prosecution, defence, magistrates and Crown Court had all proceeded on the shared misapprehension that section 24A applied. The claimant had consequently relied on section 31 of the 1999 legislation rather than Article 31 of the Refugee Convention.
5. Article 31 was wider and more advantageous than the statutory defence, including because the statutory defence imposed the additional requirement in section 31(2) concerning protection in a country through which the refugee had passed. Under Article 31, the reasons for delay in a third country required consideration. The claimant’s minority for most of his time in India and his dependence on his parents were potentially relevant. The court could not be satisfied that conviction would inevitably have followed had the proper defence been argued.
6. The court also noted that the Crown Court’s failure to address relevant expert evidence about India was surprising. It was unnecessary to determine the remaining grounds concerning the refusal to state a case.

The judicial review followed the claimant’s conviction at Birmingham Magistrates’ Court and the dismissal of his appeal by the Crown Court at Warwick on 18 March 2004. The Divisional Court quashed the conviction and made no order for a further hearing.