Ben Douglas-Jones KC, with Andrew Johnson (5 Paper Buildings), represented the Crown in Elmi, an important case on the limits of the refugee defence to documents offences and the approach to safety on appeal following a guilty plea.
Section 31 of the Immigration and Asylum Act 1999 provides a defence to certain document offence for refugees who come to the UK directly from a country where their life or freedom was threatened (within the meaning of the Refugee Convention), where they (a) present themselves to the UK authorities without delay; (b) show good cause for their illegal entry or presence; and (c) make a claim for asylum as soon as reasonably practicable after their arrival in the United Kingdom.
In this case it was argued on behalf of the Appellant that the protection of the offence should extend to (a) asylum applicants who are entitled to a grant of humanitarian protection; and (b) presumptive refugees as well as refugees.
Humanitarian protection is available to (1) non-refugees; (2) who arrive at a port of entry in the UK; (3) where substantial grounds are shown for believing that the asylum applicant concerned, if returned to their country of origin, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and (4) who are not excluded from a grant of humanitarian protection.
Presumptive refugees are persons whose illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether in the UK or elsewhere, where that conduct should be covered by article 31 of the Refugee Convention.
The Court held at  “… It is not possible to construe s 31 as applicable to those with either sort of protection. The defence only applies to refugees, but, consistent with its statutory purpose, may be advanced at trial by those who are at that time presumptive refugees. It is for the jury to determine whether the defence is made out and the issue for the jury, posed in terms recorded at paragraph 37 above, is whether the defendant is a refugee.”
In appeals where a s.31 defence has been overlooked, an FtT decision may be used to assess the strength of the overlooked defence. This was explained in Ali Reza Sadighpour v R  EWCA Crim 2669;  1 Cr App R 20 (Treacy LJ, Mackay J and HHJ McCreath, the Recorder of Westminster) (cited in Mateta at ). Such a decision may not be of much assistance where credibility is not in issue. Here, the FTT found that he had been a refugee (or at least had been entitled to claim protection under the Refugee Convention) at some time before the FtT decision, but it is unclear when. Accordingly, the FTT does not offer any assistance on the issue which would have faced the jury: was the appellant a refugee when he came into the UK on a false passport in July 2010?  and .
In R v Boal  QB 591 the Court held that an appeal would succeed only exceptionally following a guilty plea where a defence had been overlooked: “Only, in short, where [the Court] believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done.” The Court considered whether “clear injustice” would flow from the fact that the defence would probably have succeeded or whether it was a separate element of the test (where here the Crown argued that while the defence may have succeeded, the later FtT decision showed that the Appellant was not in fact a refugee, so there was no clear injustice because the defence should not have succeeded). It found that “… the answer lies somewhere between those two extremes. There may be cases where no clear injustice has occurred even though an appeal court concludes that the missed defence would quite probably have succeeded at trial. But if there are such cases (as to which we reach no firm conclusion), this is not one of them. In this case, it cannot be suggested that the FTT’s subsequent conclusion that he was not a refugee somehow moderates or cures the injustice to the appellant of not being made aware that he could raise the defence in 2010” .