Hudarey, R. v

Under Asylum and Immigration (Treatment of Claimants) Act 2004, section 2 requires a genuine immigration document. A person who cannot produce one has a defence where there is a reasonable excuse. That defence has the same substantive effect whether the relevant interview is before entry or, after entry, the charge concerns failure to provide the document within three days.

A guilty plea should not be accepted where its agreed factual basis establishes that statutory defence. The resulting conviction is unsafe. A retrial may properly be refused where the prosecution had expressly accepted those facts and the interests of justice would make it wrong to require the defendant to face trial after the prosecution changes its position.

The appellant, a Libyan asylum seeker, pleaded guilty at Isleworth Crown Court to an offence under section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004. He received a conditional discharge for 12 months.

His written and Crown-accepted basis of plea stated that persecution prevented him from travelling on his genuine passport. He used a false document to avoid apprehension when leaving Libya, and destroyed it during the flight because he mistakenly believed that arrival with it would itself be unlawful.

After an extension of time and leave to appeal were granted, the Crown did not oppose the appeal. The issues were whether the agreed facts disclosed a reasonable-excuse defence, making the conviction unsafe, and whether a retrial should nevertheless be ordered.

1. The appeal was allowed. The conviction was unsafe because the agreed basis of plea disclosed a complete statutory defence. The court quashed the conviction and refused to order a retrial.

2. Section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004 concerns a genuine immigration document. For an interview before entry into the United Kingdom, section 2(4)(c) provides the reasonable-excuse defence. For an interview after entry, section 2(6) adapts that defence: the offence lies in failure to provide the document within the period specified by section 2(3).

3. The appellant’s interview appeared to have occurred before he passed border control. Section 2(4)(c), rather than section 2(6), therefore applied. The difference did not matter because the substantive reasonable-excuse issue was the same. Applying Soe Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin), the court held that persecution which made it unsafe to travel on a genuine passport, coupled with use of a false document to avoid apprehension on departure, gave the appellant a reasonable excuse.

4. The defence was apparent from the facts expressly accepted by the Crown in the signed basis of plea. The plea should not have been accepted and the appellant should not have been convicted.

5. A retrial would be clearly contrary to the interests of justice. The Crown had formally accepted the facts which established that the appellant was not guilty. It would be wrong to require him to stand trial because the prosecution later appreciated the legal implications of its acceptance.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction, and refused the Crown’s application for a retrial.
• Isleworth Crown Court: On 22 March 2006, the appellant pleaded guilty on re-arraignment to an offence under section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004 and received a 12-month conditional discharge.