Sadighpour v R.

Where the Secretary of State has refused an asylum claim, section 31(7) of the Immigration and Asylum Act 1999 requires a defendant relying on the section 31 defence to prove refugee status on the balance of probabilities. It does not impose only an evidential burden.

A guilty plea entered without advice about a potentially available section 31 defence is not thereby unsafe. An appellate court will intervene only exceptionally, where the defence would quite probably have succeeded or, on the alternative formulation, had a reasonable prospect of success. Whether a person was genuinely in transit and acted promptly remains fact-sensitive.

Sadighpour v R. concerned an appeal against a conviction following a guilty plea to possessing a false French passport with improper intention, contrary to section 4 of the Identity Documents Act 2010.

The appellant said that he had fled Iran, travelled through Turkey, Tanzania and Zambia, entered the United Kingdom, and was arrested while attempting to travel to Canada. He had not been advised that he might rely on the defence in section 31 of the Immigration and Asylum Act 1999. The Crown accepted that this advice should have been given.

After the conviction, the First-tier Tribunal rejected his asylum and human-rights claims. The central questions were whether the guilty plea rendered the conviction unsafe and whether he had a sufficient prospect of establishing the section 31 defence on a retrial.

1. Appeal dismissed. Although the appellant had not received advice about a potentially available section 31 defence, that omission did not itself make his guilty plea unsafe. The court would set aside such a plea only exceptionally: the defence had to be likely to succeed, or at least have a reasonable prospect of succeeding.

2. Section 31 ordinarily requires a defendant first to raise an evidential issue that he or she is a refugee. If that is done, the Crown must disprove refugee status. If refugee status is not disproved, the defendant bears the balance-of-probabilities burden on the other statutory requirements, including transit through other countries, prompt presentation, good cause, and the timing of the asylum claim.

3. However, where the Secretary of State has refused an asylum claim, section 31(7) of the Immigration and Asylum Act 1999 changes the position. The defendant is then taken not to be a refugee unless he or she proves refugee status on the balance of probabilities. The word used in section 31 does not itself prescribe a single standard of proof. Reading section 31(7) as imposing only an evidential burden would make it redundant.

4. The First-tier Tribunal's decision was not binding, but it was a fully reasoned specialist assessment following tested evidence. It was properly relevant to the prospects of a retrial. Its findings that the appellant had fabricated the recent event said to have caused his flight, and had failed even under the lower asylum standard, meant that he would not establish refugee status under either possible section 31 burden.

5. The court did not decide the remaining section 31 conditions adversely to the appellant. A person genuinely in transit does not necessarily lose the protection reflected in section 31, and promptness and transit are fact-sensitive. Those matters could not assist the appellant because he failed on the prior issue of refugee status. The conviction was therefore not unsafe.

• Court of Appeal (Criminal Division): by [2012] EWCA Crim 2669, dismissed the appeal against conviction.
• Isleworth Crown Court: the appellant pleaded guilty on 20 January 2012 to possession of an identity document with improper intention and was sentenced to 12 months' imprisonment.