“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. …”
“6. It was only in R. v Uxbridge Magistrates’ Court Ex p. Adimi [2001] Q.B. 667 that the circumstances of prosecuting for documentary offences those who claimed asylum were first considered. Simon Brown L.J. considered the broad purpose of art.31 and put the matter in this way (at 677G): “Self evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law. In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by article 31.” 7. The response of the Government to this decision was to move an amendment to the Immigration and Asylum Bill then before Parliament. It was that amendment which became s.31 of the 1999 Act although it is to be noted that the legislation contains two aspects that more narrowly define the position than that advanced by Simon Brown L.J. namely, in subs.(1) the requirement that anyone claiming protection must have applied for asylum as soon as is reasonably practicable, and in subs.(2) that a refugee who has stopped in another country outside the United Kingdom must show that he could not reasonably have been expected to have been given Convention protection in that other country. “Self evidently it was to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law. In the course of argument, Newman J suggested the following formulation: where the illegal entry or use of false documents or delay can be attributed to a bona fide desire to seek asylum whether here or elsewhere, that conduct should be covered by article 31.”
“18. If the Crown fails to disprove that the Defendant was a refugee, it then falls to a Defendant to prove on the balance of probabilities (a) that he did not stop in any country in transit to the United Kingdom or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so: (b) to prove that he presented himself to the authorities in the UK without delay; (c) to show good cause for his illegal entry or presence in the UK; and (d) to prove that he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.”
“26. I am of opinion that section 31 of the 1999 Act should not be read […] as limited to offences attributable to a refugee's illegal entry into or presence in this country, but should provide immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit. This interpretation is consistent with the Convention jurisprudence to which I have referred, consistent with the judgment in Adimi [R. v Uxbridge Magistrates’ Court Ex p. Adimi [2001] Q.B. 667], consistent with the absence of any indication that it was intended to depart in the 1999 Act from the Convention or (subject to the exception already noted) Adimi, and consistent with the humanitarian purpose of the Convention. It follows that the jury in the present case, on finding the conditions in section 31 to be met, were fully entitled to acquit the appellant on count 1, as the respondent then accepted, even though the offence was committed when the appellant was trying to leave the country after a short stopover in transit.”
“5. The real question is, looking at all the circumstances: is the person in the course of a flight? Is he making a short-term stop over? Is he in transit? Whichever phrase is used, one has to see whether at the material time the person was here, not having come to this country either temporarily or permanently seeking to stop here, but was going on. That is a question of fact.”
“9. Although the full scope of s.31 of the 1999 Act was not determined by Asfaw, Lord Bingham did make clear that in order to satisfy the requirement of s.31(1)(c) the claim for asylum must be made as soon as was reasonably possible (which did not necessarily mean at the earliest possible moment: see [16]). Second, the fact that a refugee had stopped in a third country in transit was not necessarily fatal: he affirmed the observations of Simon Brown L.J. in Adimi (at 678) that refugees had some choice as to where they might properly claim asylum and that the main touchstones by which exclusion from protection should be judged were the length of the stay in the intermediate country, the reasons for delaying there and whether or not the refugee sought or found protection de jure or de facto from the persecution from which he or she was seeking to escape: see also R. v MMH[2008] EWCA Crim 3117 at [14]–[15].”
“16. … However, it is right to say that in thus concluding the House of Lords accepted a proposition which derives from the judgment of Simon Brown LJ in R v Uxbridge Magistrates' Court ex parte Adimi[2001] QB 667 at 687. That was an observation to the effect that in order to give effect to the Convention it is necessary not to punish those who are merely in transit in a third country or, in Mrs Asfaw's case, in this country. A person who is genuinely in transit does not, on the authority of Asfaw, lose the protection of the Convention and thus of section 31.”
“26. … In very general terms, it seems to us that in the great majority of cases there will simply be no excuse for a genuine refugee not to make himself known immediately he arrives in the safe place that is to say the arrivals immigration hall at a United Kingdom airport. Moreover, from the point of view of sensible immigration control, that makes sense. … 30. … it is certainly open to a tribunal of fact to conclude and in many cases it may be the right conclusion, that there is simply no reason for such a traveller not to identify himself the moment he is in friendly official hands.”
“10. The upshot […] is that it is open to anyone charged with an offence under s.25(1) of the 2006 Act to adduce sufficient material to raise an issue that he or she is a refugee and entitled to the protection of s.31 of the 1999 Act whereupon the burden of disproving that defence will fall upon the prosecution: see R. v Makuwa[2006] EWCA Crim 175 ;[2006] 2 Cr. App. R. 11 (p.184). It is thus critical that those advising defendants charged with such an offence make clear the parameters of the defence (including the limitations and potential difficulties) so that the defendant can make an informed choice whether or not to seek to advance it. 11. There is no doubt that this court can entertain an application for leave to appeal against conviction on the grounds that a tendered guilty plea was a nullity. The limited basis of that jurisdiction was explained in R. v Evans[2009] EWCA Crim 2243 ) by Thomas L.J. in these terms (at [52]): “The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial ‘is actually no trial at all’ (see the opinion of Lord Atkinson in Crane v DPP[1921] 2 AC 299 at 330) or where there has been ‘some irregularity in procedure which prevents the trial ever having been validly commenced’ (see the opinion of Lord Diplock in Rose(1982) 75 Cr App R 322 at 336.” 12. The test for a plea to be held a nullity was elaborated (per Scott Baker L.J. in R. v Saik[2004] EWCA Crim 2936 ) as requiring the facts to be so strong as to demonstrate that there is no true acknowledgment of guilt with the advice going to the heart of the plea so that it was not “a free plea”
“The fact that Lee was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although these factors highly relevant to whether the convictions, or any of them, were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.” 13. This alternative approach was adopted in R. v Boal(1992) 95 Cr. App. R. 272 which concerned the failure to challenge what was held to be the erroneous assumption that an assistant general manager at a bookshop, responsible for the shop during a week in which the manager was absent, was a manager withins.23(1) of the Fire Precautions Act 1971 . In quashing the conviction that followed guilty pleas based on that assumption (observing that the appellant “was deprived of what was in all likelihood a good defence in law”), Simon Brown L.J. also made clear the additional hurdle that had to be overcome when he said at 278: “This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.” […] 56. These cases are characterised by allegations that those advising illegal entrants to this country have simply failed to ensure that the scope of the potential defences to an allegation of breach of s.25 of the 2006 Act have fully been explored. If the circumstances and instructions generate the possibility of mounting a defence under s.31 of the 1999 Act, there is simply no excuse for a failure to do so and, at the same time, properly to note both the instructions received and the advice given. If these steps are taken, cases such as the four with which the court has just dealt will not recur and considerable public expense (both in the imprisonment of those convicted and in the pursuit of an appeal which will involve evidence and waiver of privilege) will be avoided.” “The applicable general principle is that such a writ will be granted where the proceedings are a nullity, that is to say where a purported trial ‘is actually no trial at all’ (see the opinion of Lord Atkinson in Crane v DPP[1921] 2 AC 299 at 330) or where there has been ‘some irregularity in procedure which prevents the trial ever having been validly commenced’ (see the opinion of Lord Diplock in Rose(1982) 75 Cr App R 322 at 336.” “The fact that Lee was fit to plead; knew what he was doing; intended to make the pleas he did; pleaded guilty without equivocation after receiving expert advice; although these factors highly relevant to whether the convictions, or any of them, were either unsafe or unsatisfactory, cannot of themselves deprive the court of the jurisdiction to hear the applications.” “This decision must not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done. That is this case. It will not happen often.” […] 56. These cases are characterised by allegations that those advising illegal entrants to this country have simply failed to ensure that the scope of the potential defences to an allegation of breach of s.25 of the 2006 Act have fully been explored. If the circumstances and instructions generate the possibility of mounting a defence under s.31 of the 1999 Act, there is simply no excuse for a failure to do so and, at the same time, properly to note both the instructions received and the advice given. If these steps are taken, cases such as the four with which the court has just dealt will not recur and considerable public expense (both in the imprisonment of those convicted and in the pursuit of an appeal which will involve evidence and waiver of privilege) will be avoided.”
“35. We are therefore satisfied that it is appropriate to have regard to the Tribunal’s decision in assessing the Appellant’s prospects under Section 31 on any retrial. After all, the Tribunal is a properly constituted judicial body. Its members have particular specialist experience in dealing with matters pertaining to immigration and asylum. The Appellant was able to deploy his full arguments and call relevant witnesses. The evidence was fully tested. Both parties made their respective submissions, and a fully reasoned judgment was reached. 36. As already stated, paragraph 31(7) provides if the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is.”