Idahosa v R

Where a potential defence under section 31 of the Immigration and Asylum Act 1999 is generated by a defendant’s circumstances or instructions, legal representatives must explain its existence and limits sufficiently for an informed choice about plea. They must also record the instructions and advice.

Section 31 applies purposively to a refugee apprehended while leaving the United Kingdom during a limited stopover en route to seek asylum elsewhere. Whether a stopover is short-term is a fact-sensitive question of degree. A guilty plea induced by a failure to give proper advice may be a nullity only in an exceptional case: the advice must go to the heart of the plea, the defence must quite probably have succeeded, and a clear injustice must result.

The appellant pleaded guilty at Lewes Crown Court to possessing another person’s passport with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010, and was sentenced to 15 months’ imprisonment. He had been arrested while attempting to board a flight to Canada after 54 days in the United Kingdom.

He appealed with leave on the basis that counsel had not advised him of a possible defence under section 31 of the Immigration and Asylum Act 1999. He maintained that he was a refugee using the United Kingdom as a stopover while travelling to claim asylum in Canada. The court heard oral evidence from him and his former counsel. The central issues were whether he had received proper advice and whether his failure to approach the United Kingdom authorities was explicable during a short stopover.

1. Appeal allowed. The guilty plea was a nullity and the conviction was quashed.

2. There was some discussion which caused counsel to consider section 31, but the appellant was not told that he might have a defence. Counsel treated the defence as incapable of succeeding and did not explain its parameters. The limited instructions were confusing and required further inquiry. Proper inquiry would probably have elicited the explanation that the appellant was awaiting onward travel documents. He was therefore not given a proper opportunity to make an informed choice about his plea.

3. The stringent test governing an appeal after a guilty plea was met. Following the principles discussed in R v Mohamed (Abdulla) [2011] 1 Cr. App. R. 35, R v Boal [1992] 95 Cr. App. R. 272 and R v Z [2013] EWCA Crim 1181, the erroneous advice went to the heart of the plea. The court also had to be satisfied that the statutory defence would quite probably have succeeded and that a clear injustice had occurred.

4. Section 31 was construed purposively, consistently with R v Asfaw [2008] 1 AC 1061 and R v Mateta [2014] 1 WLR 1516. A refugee need not claim asylum in the United Kingdom merely because he arrives here. A person may be in transit despite having entered the country, but the stopover must be short-term or limited. That inquiry is one of fact and degree.

5. The court did not finally determine whether the defence necessarily ceases once it becomes apparent that onward travel will not occur soon. Proceeding on that basis, the appellant’s credible evidence showed that he had expected the agent’s arrangements to be completed at any time. His accepted refugee account, genuine wish to seek asylum in Canada, and lack of reason to remain in the United Kingdom gave him good prospects of establishing that the 54-day stay was an explicable short stopover. The conviction was accordingly quashed.

• Court of Appeal (Criminal Division) — Idahosa v R [2019] EWCA Crim 1953: appeal against conviction allowed; guilty plea treated as a nullity and conviction quashed.
• Crown Court at Lewes — on 12 July 2013, the appellant pleaded guilty to an offence under section 4(1) and (2) of the Identity Documents Act 2010 and was sentenced to 15 months’ imprisonment.