Mateta & Ors, R v

A refugee charged with a false-identity-document offence may rely on the defence in section 31 of the Immigration and Asylum Act 1999 if the statutory conditions are met. A genuine short-term transit stopover does not, without more, remove that protection. The availability of Convention protection in intermediate countries, the reasons for delay, and whether the person was genuinely in transit are fact-sensitive questions.

Representatives must advise on a possible section 31 defence where the circumstances and instructions raise it. A conviction following a guilty plea induced by a failure to give that advice may be quashed only exceptionally, where the defence would quite probably have succeeded and a clear injustice has resulted.

Five appellants had pleaded guilty in Crown Courts to possessing false passports or identity documents with the requisite or improper intention. Each had entered or sought to leave the United Kingdom while intending to travel onwards, and each later obtained refugee status or asylum.

Four matters reached the court by references from the Criminal Cases Review Commission. A fifth application for leave to appeal was referred by the Registrar, and the court granted an extension of time and leave. The common issue was whether convictions following guilty pleas were unsafe because incorrect legal advice meant that a defence under section 31 of the Immigration and Asylum Act 1999 was not considered or properly explained.

1. The appeals were allowed and the convictions were quashed. The Crown did not seek retrials. In each case the appellants had been deprived of a proper opportunity to consider a potentially available section 31 defence.

2. The court restated the statutory structure. Once a defendant provides sufficient evidence to raise refugee status, the prosecution must disprove that status to the criminal standard, following R v Makuwa [2006] EWCA Crim 175. If the Secretary of State has refused asylum, the defendant bears the legal burden of proving refugee status on the balance of probabilities. The defendant also bears that standard for the remaining statutory conditions.

3. Following R v Asfaw [2008] UKHL 31, a refugee may retain the protection of Article 31 and section 31 while genuinely in transit, including when seeking to leave the United Kingdom after a short stopover. Whether the person was in continuing flight is a factual inquiry. Relevant considerations include the length and reasons for stays in intermediate countries, whether Convention protection was reasonably available there, and whether delay in presenting or claiming asylum was explicable. A claim need not invariably be made at the earliest possible moment. Good cause for illegal entry or presence may be established by reasonably travelling on false papers.

4. R v Mohamed Abdalla, R v V(M), R v Mohamed (Rahma Abukar), R v Nofallah [2010] EWCA Crim 2400 required lawyers to explain the possible defence and its limitations where the instructions raise it. Applying the exceptional safety approach in R v Boal (1992) 95 Cr. App. R. 272, the court held that each defence would quite probably have succeeded and that clear injustice had occurred. The failures of the appellants’ representatives therefore rendered the convictions unsafe.

• Court of Appeal (Criminal Division) — Four references were made by the Criminal Cases Review Commission and one application for leave to appeal was referred by the Registrar. The court granted the necessary extension and leave, allowed all five appeals, and quashed the convictions.
• Crown Courts at Isleworth, Lewes and Manchester — The appellants had pleaded guilty to offences concerning false identity documents under the Identity Cards Act 2006 or the Identity Documents Act 2010. No lower-court judgment citation was stated.