Court of Appeal quashes Somali refugee's conviction in Adow after 18-year delay

The Court of Appeal has quashed the 2007 conviction of a Somali refugee for possessing a false identity document, granting an extension of time of some 18 years after finding she was never advised of a statutory defence that would quite probably have succeeded. The judgement in Adow v R, handed down on 7 July 2026, offers a further illustration of when a lengthy delay will be excused in a change of law case.

The applicant fled Somalia in November 2007 after years of persecution directed at her minority Tunni clan, part of the Bravanese community. Her account, later accepted by the Asylum and Immigration Tribunal, described her father's killing, her mother's disappearance and an attack in which her aunt was raped and her younger brother injured. With no passport or lawful means of travel, an agent arranged her escape using a false Swedish passport, routing her through Dubai and Sweden before she arrived at Stansted. She presented the document to immigration officials, was arrested, and claimed asylum immediately.

On the advice of her legal representatives she pleaded guilty to an offence under section 25(1) of the Identity Cards Act 2006 and was sentenced to 12 months' imprisonment. The Tribunal allowed her appeal against deportation in October 2008, and the Secretary of State granted her refugee status. She has since been granted indefinite leave to remain.

An overlooked statutory defence

The single ground was that the applicant had not been advised of the defence under section 31 of the Immigration and Asylum Act 1999, which gives domestic effect to Article 31 of the 1951 Refugee Convention. The prosecution did not oppose the application, accepting that the defence had not been raised, that it would quite probably have succeeded, and that the Crown could not have disproved her refugee status to the criminal standard.

Reviewing the authorities from Adimi and Pepushi through to the House of Lords in Asfaw, and the principles distilled in Mateta and AUS, Mrs Justice O'Farrell held that there had been sufficient evidence in December 2007 to show the applicant was a genuine refugee. Her stop of about four days in Sweden amounted to no more than a short transit stopover, explicable given that she was a lone woman travelling for the first time and following the agent's instructions. She had presented herself without delay and shown good cause for her illegal entry.

The court noted that, at the time of the plea, a misconception prevailed that even a brief stopover in a safe third country was fatal to a section 31 defence, a view corrected only by Asfaw the following year. Had the defence been advised, the applicant would have pleaded not guilty and would likely have been acquitted, if not at trial then on appeal.

Establishing substantial injustice

Because the application turned on a change in the law, the applicant had to show substantial injustice under the principles in Jogee, Johnson and Ordu. The court adjourned to allow further evidence. Her statement set out the conviction's continuing effects: three refusals of British citizenship on good character grounds, an inability to travel on her Convention travel document, exclusion from work requiring an enhanced criminal record check, and enduring stigma within her community.

Satisfied that she had suffered a substantial injustice, the court granted the extension of time, allowed the appeal and quashed the conviction. Lord Justice Warby and Mrs Justice Brunner agreed.