Adow v R

A defendant charged with possession of an identity document with intent must be advised of a possible defence under section 31 of the Immigration and Asylum Act 1999. A short transit stop in a third country is not automatically fatal. The court must consider the length and reasons for the stay, available protection, prompt presentation, good cause for illegal entry and the timing of any asylum claim. Where a guilty plea followed without that advice, an appeal may be permitted if the defence would quite probably have succeeded and a clear injustice resulted. In a change-of-law case, exceptional leave out of time requires substantial injustice. Continuing effects on citizenship, travel, employment and reputation may establish it.

In 2007, the applicant pleaded guilty at Chelmsford Crown Court to possession of an identity document with intent, contrary to section 25(1) of the Identity Cards Act 2006, and received a 12-month prison sentence. She had fled persecution in Somalia using a false Swedish passport and claimed asylum on arrival. The Asylum and Immigration Tribunal later accepted her account and allowed her appeal against deportation; refugee status was granted.

In 2025, she sought an approximately 18-year extension of time, leave to appeal and permission to rely on fresh evidence. She argued that she had not been advised of the statutory defence under section 31 of the Immigration and Asylum Act 1999. The central issues were whether the defence would probably have succeeded and whether the continuing consequences of the conviction amounted to substantial injustice.

1. Disposition. The court granted the necessary extension of time and leave to appeal. It allowed the appeal and quashed the conviction.
2. Statutory defence. Article 31 of the Refugee Convention protects genuine refugees from criminal penalties for illegal entry or presence in appropriate circumstances, including the use of false documents. R (Adimi) v Uxbridge Magistrates' Court [1999] EWHC Admin 765 supported a broad construction. R (Pepushi) v CPS [2004] EWHC 798 (Admin) explained that section 31(2) of the Immigration and Asylum Act 1999 was narrower than Article 31. The later decision in R v Asfaw [2008] UKHL 31 confirmed that a short stopover in transit was not necessarily fatal. The requirements and burdens were summarised in R v Mateta [2013] EWCA Crim 1372.
3. Application of the defence. The accepted tribunal findings established that the applicant was a genuine refugee. Dubai afforded no Convention protection. Her four-day stay in Sweden was a short stopover, and her failure to claim asylum there was explicable in the circumstances. She presented herself and claimed asylum immediately on arrival in the United Kingdom, and her flight without valid documents provided good cause for the false passport. The prosecution accepted that she could probably have established the section 31 requirements.
4. Guilty plea and legal advice. The court applied the principles summarised in R v AUS [2024] EWCA Crim 322 and the exceptional-intervention principle in R v Boal [1992] QB 591. The applicant was not advised of the possible defence. The contemporaneous attendance notes supported her evidence, and she would probably have pleaded not guilty had she been properly advised. The defence would likely have succeeded at trial or on appeal after R v Asfaw [2008] UKHL 31.
5. Extension of time. Under R v Jogee [2016] UKSC 8 and R v Johnson [2016] EWCA Crim 1613, a change-of-law appeal requires exceptional leave and substantial injustice. The refusal of an extension in Ordu [2017] EWCA Crim 4 was distinguishable because there was no continuing impact. Here, the conviction impeded citizenship, travel and employment and caused continuing stigma. Those consequences established substantial injustice.

• Court of Appeal (Criminal Division): [2026] EWCA Crim 868 . Extension of time and leave to appeal granted; appeal allowed and conviction quashed.
• Chelmsford Crown Court: On 7 December 2007, the applicant pleaded guilty to an offence under section 25(1) of the Identity Cards Act 2006 and was sentenced to 12 months’ imprisonment.