Leading case on the scope of the s.31 Immigration and Asylum Act 1999 “refugee defence”

R. v Elmi (Abdihakim) [2022] EWCA Crim 1428


Ben, leading Andrew Johnson, appeared for the Crown in this leading case on the scope of the s.31, Immigration and Asylum Act 1999 “refugee defence” for document offences. 


The appellant contended, relying on FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696, [2010] 1 W.L.R. 2545, [2010] 6 WLUK 421, that s.31 should be construed to include those granted humanitarian protection within the definition of refugees and, relying on Adimi, to include presumptive refugees.


However, the Crown correctly argued that s.31(6) defined "refugee" by reference to the Convention and did not allow a more expansive definition, emphasising the distinction between the two concepts in the Immigration Rules para.339C(ii), FA (Iraq) and Adimi considered. It was not possible to construe s.31 as if it applied to persons with either sort of protection. The defence only applied to refugees but, consistent with its statutory purpose, could be advanced at trial by those who were at that time presumptive refugees. It was for the jury to determine whether the defence was made out (see paras 45-49 of judgment).