Summary of caselaw on the s31 defence

Summary of Facts of Criminal Immigration cases

Here is a summary of all the cases where the Court of Appeal have considered the s31 defence since AM & Others. It is a very quick breakdown of the journey to the UK, with a note on other issues if they arise.

None of these are ‘factual precedents’. People with more ‘direct’ routes may fail in the defence (and vice versa) but are set out to show just how wide the defence can be.

Where there are cojoined cases, I have summarised them all in the one case, even if the different appeals have different outcomes.

Appeals allowed as defence would ‘quite probably have succeeded’

AM – Somali who came to the UK by plane. The journey was confused, but seems to have been a flight to Egypt, before flying to Italy where he stayed 1½ days and then coming to the UK. Appeal dismissed as AM had received proper legal advice, but there would also be ‘real difficulties’ with the 1½ days in Italy.

MV – Iranian who went by land to Turkey, then by plane to Syria (1 week) before flying to Spain (3 hours spent in the airport).

RM – Somali. Left Somalia by lorry through ‘various African countries’ before flying to the Netherlands (3 days) and on to the UK.

MN – Iranian. Left Iran on a lorry for 25 days, ending up in Greece (2 weeks locked in a flat) before flying to the UK.

  • Dastjerdi [2011] EWCA Crim 365 – Iranian, came to UK via Turkey and ‘two other countries’ (length of stay unknown) – was going to Canada but nobody met him at the UK, so claimed asylum.

  • Jaddi [2012] EWCA Crim 2565 – Iranian who had previously unsuccessfully claimed asylum in the UK and returned. Came to UK with the help of an agent through Turkey (1 month), Greece (2-3 days), Italy (3-4 days) before flying to Gatwick. There he produced two false documents before being arrested (although there was some dispute about this).

  • Adom [2013] EWCA Crim 384 – Ghanian, flew to Egypt (in transit for a few hours), then to UK. Presented passport on arrival then claimed asylum after he was fingerprinted.

Mateta – national of the DRC, came to the UK via an overnight stay in Belgium, on way to Canada to claim asylum. Arrested at airport when leaving to go to Canada (length of stay in UK unkonwn)

Adukwa – Cameroonian national. Flew to Kenya (where he remained in the airport at all times) then to Heathrow. Arrested trying to leave Manchester airport the next day on a flight to Canada where he was intending to claim asylum).

Bashir – Somali. Travelled via Kenya (1 month), Dubai and Greece (length unknown). Claimed asylum after arrest.

Amir Ghavami & Saeideh Afshar – Iranian husband and wife. Came to UK via Thailand (2 months, flying there on their own passports with a valid visa), Tanzania (20 days), Kenya (7 days) and Spain (20 days). Flew to Gatwick, before getting a bus to Heathrow to fly to Canada where they intended to claim asylum Arrested whilst trying to board the plane.

  • Zondo [2014] EWCA Crim 1501 – Zimbabwean, came to the UK via South Africa and Qatar (length of time unknown). Non-counsel application, so very little detail.

  • Hassein [2014] EWCA Crim 1978 – Somali, left Somalia and spent 2 years in Kenya. Didn’t claim asylum there as “he did not wish to be held in a refugee camp where he could not earn a living in order to support his family”. Came to UK via Tanzania (with a stop of about 3 weeks), not stopping there as he “did not come across any refugee camps, and in any event did not know how to apply for asylum”.

  • Sadiqi [2014] EWCA Crim 2479 – Iranian husband and wife. Came to UK via Turkey and then by air to Spain (length of stay unknown), intending to travel to the USA to claim asylum there.

Claimed aslyum in the UK after arrest.

  • Sadeghi [2014] EWCA Crim 2933 – Iranian. Left via Turkey, before flying to Tanzania, then going to Zambia by train, before flying to the UK (length of time in those countries unknown). Intending to go on to Canada to claim asylum. Spent 7-8 days in UK before being arrested trying to board a flight to Canada. Claimed asyum 23 days after arrival in the UK.

It is worth noting some comments from the Court of Appeal :

he could not reasonably have been expected to claim asylum in Turkey, Tanzania or Zambia. Indeed it is clear that in any event he was under the control of an agent at that time who was conducting his intended transit to Canada, which provides a perfectly sensible explanation, on his part, as to why he did not seek asylum in any of those places.

Thirdly, it was explicable that he did not present himself to the authorities in the UK. As will be evident from the facts which we have set out above, he was, at the time of being in the UK, in transit to Canada having been told he was not able to claim asylum in the United Kingdom … Fourthly, having accepted that the appellant had good reason not to claim asylum in the United Kingdom prior to his arrest and whilst still in transit, he did in fact claim asylum, on 3 February 2012, not long after the criminal proceedings in his case had been concluded”.

  • Mulugeta & others [2015] EWCA Crim 6

Mulugeta – A non-passport case (the charge was under s24A Immigration Act 1971 – seeking leave to enter by deception). Appeal dismissed as the defence could not apply – he had entered the UK on a valid visa and claimed asylum later. The charge was based on lies told in the Screening interview, and therefore had nothing to do with the purpose of the s31 defence (see s31(6)).

Issa – Somali, came to the UK via Dubai (some weeks), then transiting through Holland.

Firouzi – Iranian, came via Thailand and Uganda (total of 6 weeks). Spent 14 days in the UK before being arrested trying to board a flight to Canada where he was intending to claim asylum.

The Court of Appeal accepted that by presenting the false passport to an Immigration Officer when he arrived in the UK meant that he had presented ‘himself to the auhtorities as soon as he arrived in the’ UK and an issue as to when the asylum claim was made was resolved in his favour.

  • Shabani [2015] EWCA Crim 1924 – Iranian. Left via Turkey, before flying to Spain (11 days), then to the UK.

  • Nguidjol [2015] EWCA Crim 2073 – Cameroonian, On his way to Canada when stopped at the airport entering the UK. Came via Nigeria (an unspecified length of time), France (10 days) and Spain (2 days).


Other cases

Appeals in the following cases were dismissed.

  • Kamalanathan [2010] EWCA Crim 1335 – Sri Lankan who came to the UK via Russia, then Poland, then by land. Was in the UK for a month before being arrested whilst trying to leave the country to go to Canada. Told Immigration Officers on arrival that he was intending to come to the UK to claim asylum. In light of that, he had ‘stopped running’ and there was no good reason for him to not claim asylum.

Para 5 is useful “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.

  • C [2011] EWCA Crim 2911 – Angolan who came to UK in slightly opaque circumstances, allegedly with a doctor from MSF, arrested trying to leave the UK to go to Sweden. Appeal dismissed as the FTT had twice disbelieved C’s account of his journey to the UK.

  • Sadighpour [2012] EWCA Crim 2669 – appeal dismissed after Court of Appeal considered FTT reasoned decision that his account was not credible and he was not a refugee.


You can download a word copy of this here.

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One response to “Summary of caselaw on the s31 defence

  1. Pingback: s31 Defence for asylum seekers – a practical guide | Immigration Offences

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