Richard Osagie Idahosa v Home Office

1. On 12th July 2013 at the Crown Court at Lewes before HHJ Kemp Mr Richard Idahosa (“the Appellant”) pleaded guilty to possession of an identity document with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010 (“2010 Act”). On the same occasion, he was sentenced to 15 months’ imprisonment. He appeals against his conviction with the leave of the Full Court granted on 2nd May 2019.

2. Leave was granted, together with the necessary extension of time, because it is arguable that the Appellant was not advised that he had a potential defence under section 31 of the Immigration and Asylum Act 1999 (“the 1999 Act”): namely, that he was a refugee in transit in the UK seeking to claim asylum in Canada. Although the Appellant has long since served his sentence of imprisonment, his conviction is not spent for the purposes of the Rehabilitation of Offenders Act 1974, and in his witness statements he has explained the difficulties that he has faced in obtaining suitable employment in this country.

85. An individual fleeing persecution is not obliged to claim asylum in the UK on arrival. However, as and when it becomes apparent to him or her that s/he will not be able to leave in the near future, there is a strong argument that at that point the defence is no

Judgment Approved by the court for handing down. Idahosa v R [2019] EWCA Crim 1953

longer available. The right option then would be to apply for asylum here or to present oneself to the authorities and seek in effect Article 31.2 protection. This approach to the section is consistent with the overall philosophy of Article 31 that asylum seekers should act with reasonable expedition.

86. Did it become apparent to the Appellant that he would not be leaving the UK in the near future? This brings into question his overall credibility. His account is that he was waiting in Brixton with his bag packed awaiting the go-ahead from the agent which he believed could be forthcoming at any time. If this account were true, we would hold on these certainly atypical facts that the Appellant should be treated as having been on a short-term stopover.
87. We have already commented that the Appellant’s credibility should be called into question as regards what happened on 11th and 12th June, but credibility is not a monolithic entity. There are two factors which point strongly in the Appellant’s favour. First, the account he gave to the immigration officer at his asylum interview was detailed, compelling and accepted by the Home Office as being substantially true. Secondly, it does seem clear that the Appellant genuinely wanted to claim asylum in Canada in order to be with his partner, he had no wish or reason to remain here, and it is credible that he was strung along by his agent who was no doubt unwilling or unable to provide a likely timeframe for departure beyond giving emollient assurances. We do not think that Mr Douglas-Jones’ cross-examination dented the Appellant’s account in connection with these crucial questions.

88. It follows that we are driven to conclude that the Appellant did have good prospects of establishing that it is explicable that he did not present himself to the authorities in the United Kingdom during a short stopover in this country when travelling through to the nation where he intended to claim asylum.

Disposal

89. This appeal is allowed, and the Appellant’s conviction must be quashed.

Read the full judgement: https://is.gd/mn2mo9