YY v R.

Where a defendant has pleaded guilty to an immigration or identity-document offence, a conviction will be unsafe for want of advice about a statutory defence only in exceptional circumstances. The court must be satisfied that the overlooked defence would quite probably have succeeded and that a clear injustice has resulted.

Representatives must advise on a possible refugee defence under section 31 where the circumstances and instructions raise it. The same approach applies to the statutory defence available for an offence under section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004. A later grant of humanitarian protection does not itself establish that an earlier defence would probably have succeeded.

Two convictions were referred by the Criminal Cases Review Commission. YY, an Iranian national, pleaded guilty at Lewes Crown Court to possessing a false identity document without reasonable excuse. He had sought asylum on arrival and was later granted asylum.

Ayad Nori, an Iraqi national, pleaded guilty at Isleworth Crown Court to entering the United Kingdom without a passport. He claimed that an agent had taken his family's passports during their journey. His asylum claim was refused, but he received humanitarian protection.

Neither appellant had previously appealed. Each contended that inadequate advice had caused him to overlook a statutory defence. The central question was whether either omitted defence would quite probably have succeeded, so that the guilty plea had produced a clear injustice.

1. Both appeals were dismissed. A guilty plea does not prevent an appeal based on an overlooked defence, but intervention is exceptional. The court must be satisfied that the defence would quite probably have succeeded and that a clear injustice has been done. That was not established in either case.

2. The court applied the advice principles stated in R v MA [2010] EWCA Crim 2400 and summarised in R v Mateta [2013] EWCA Crim 1372. A representative must identify and explain a possible section 31 refugee defence where the circumstances and instructions make it arguable. The same principle applies to advice about the statutory defence under section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

3. YY's contemporaneous instructions were that he had fled Iran because of adultery. They did not raise his later account of an interest in Christianity. In light of ME Iran CG [2003] UKIAT 166, there was no arguable section 31 defence on the instructions then given. Although explicit advice on reasonable excuse under section 6 of the Identity Documents Act 2010 had not been given, the court could not conclude that such a defence would quite probably have succeeded. Leave to advance the unreferenced ground was refused and YY's appeal was dismissed.

4. Nori's defence that an agent had taken his passport had been raised in his defence statement. The court was therefore not prepared to find that the statutory defence had been overlooked. Humanitarian protection did not have the status of a First-tier Tribunal determination, and the evidence did not show a defence strong enough to displace his unequivocal plea. His appeal was dismissed.

5. The court added, obiter, that the Criminal Cases Review Commission should not routinely investigate and refer cases which can proceed directly to the Court of Appeal. It should preserve its exceptional-reference role for cases that have exhausted the ordinary appellate route and for the distinct position of guilty pleas in magistrates' court proceedings.

• Court of Appeal (Criminal Division): The Criminal Cases Review Commission referred both convictions. The court dismissed both appeals.
• Crown Court at Lewes: YY pleaded guilty on 26 April 2011 to possession of false identity documents without reasonable excuse and was sentenced to six months' imprisonment.
• Crown Court at Isleworth: Ayad Nori pleaded guilty on 11 September 2008 to entering the United Kingdom without a passport and received a suspended sentence with a residence requirement.