Francesca Delany in Court of Appeal Case on Section 31 Immigration and Asylum Act 1999

R v Mohammed and Others [2010] EWCA Crim 2400


Francesca Delany represented MV, an Iranian asylum seeker, in his successful, out of time appeal against conviction for possession of false identity documents. MV fled Iran due to political problems following the post-election violence in 2009. He arrived in the UK on a false passport and claimed asylum immediately upon arrival. He was charged with possession of a false passport under s.25 of the Identity Cards Act 2006 however his criminal representatives in Liverpool failed to advise him of the statutory defence under s.31 Immigration and Asylum Act 1999.

The judgment ends with these remarks:

"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."

As noted by Andrew Keogh in 'Crimeline':

"In this case, where the court unusually name solicitors and counsel involved, practitioners are once again reminded of the importance of considering Section 31 Asylum and Immigration Act 1999, which in some cases provides a defence to criminal offences allegedly committed by refugees. In these cases the court was concerned with offences under the Identity Cards Act. If you have no current awareness of this section then you should make it a priority to read this case."

Please click here to read the full judgment.