Halloween was definitely full of tricks and treats this 31 October, when the Court of Appeal quashed the conviction of our client (AA), a Syrian refugee who entered the UK in 2012 as an asylum seeker and was wrongfully convicted of possession of a false identity document.

AA, who had been an English teacher but had been forcefully conscripted into the Syrian army, fled his country leaving everything behind him, to save his life. AA used a false identity document to travel to the UK in a terrifying ordeal and eventually safely arrived at Heathrow airport in November 2012, having travelled through Europe for weeks. A few hours after his entry in the country, AA voluntarily surrendered himself to UK authorities to claim asylum and he was promptly arrested for possessing a false identity document.

At his police interview, the solicitor representing AA failed to advise him about the defence under Section 31 of the Immigration and Asylum Act 1999. This legislation clearly provides refugees with a lawful defence for possessing false documents, as long as they:

• presented themselves to UK authorities,
• showed good cause for illegal entry, and
• claimed asylum as soon as reasonably practicable.

All these conditions applied to AA.

However, being unaware of this defence, AA gave a no comment interview, he was charged, remanded in custody and produced at court where his solicitor does not appear to have advised him of his available defence. In January 2013, he pleaded guilty in the Crown Court and the Judge was ‘so impressed’ by his ordeal and his account, he ordered a sentence of six months imprisonment which meant he was released immediately, having already served his sentence whilst on remand (such offences usually attract a sentence of two years). This sentence was deemed exceptionally lenient by the judge given that AA was a refugee escaping from persecution in Syria.

In parallel with his criminal proceedings and whilst in custody, AA instructed immigration solicitors to lodge his asylum claim and he was (relatively) swiftly granted refugee status.

What is shocking about this case is that AA had the benefit of advice from two defence professionals, who are used to advising people recently arrived in the UK, and immigration solicitors. We carried out numerous subject access requests and Heathrow police appear to have been aware of the defence but did not apply it to AA’s case. The CPS, prosecution counsel and an experienced Judge, all failed to realise he had a clear defence to the allegation.

At no point was AA advised about the defence that applied to him under Section 31.

Due to this wrongful conviction, for the past decade, AA has been unable to obtain employment and has been prevented from obtaining British Citizenship. He eventually found out from a fellow refugee facing similar circumstances that an appeal out of time was possible, and instructed Bindmans.

A decade later, this miscarriage of justice has finally been overturned through an appeal out of time and AA’s conviction has been quashed. The prosecution did not contest the appeal. The Court of Appeal deemed AA’s conviction unsafe, and held that, had AA been properly advised of his lawful defence, it is likely to have succeeded at trial. The solicitor’s failure to properly advise about his defence rendered AA’s guilty plea a nullity.

AA commented:

I am extremely grateful for the refuge I found in the UK, but, for over a decade,  I have been unable to work in my profession and provide a proper income for my family, because of my conviction. It was a chance encounter with a friend that led me to Bindmans who started the process to help me overturn the conviction that should have never been ordered. I am looking forward to living a full life now and am very grateful to Bindmans.

AA’s solicitor, Kate Goold, of Bindmans LLP, stated:

AA was terribly let down by the criminal justice system. He always had a lawful defence which was clear from the outset as soon as he claimed asylum, but this was missed by his defence lawyers, the prosecutor, the Judge and his immigration team. I am just pleased that this has been resolved by the Court of Appeal but am sorry that AA has had to wait so long to right this wrong.

AA was represented by Kate Goold, Lodovica Degan, Shivani Soni, and Counsel David Rhodes of Doughty Street Chambers.