Refugee defence under s.31 of the Immigration and Asylum Act 1999

Ben Douglas-Jones appeared in Kamanga, a case where the appellant had not been advised about the availability of a refugee defence under s.31 of the Immigration and Asylum Act 1999 when he pleaded guilty to a document offence in 2007.

The President of the Queen's Bench Divison gave the judgment of the Court and held that the test for an application for leave to appeal out of time which does not turn on a change in law is the test in Mateta - i.e. that if the defence “would quite probably have succeeded” then “a clear injustice has been done”, the application for leave to appeal out of time should be granted and the appeal allowed.

Caselaw has suggested that the test for exceptional leave out of time is that there needs to be “a substantial injustice” whether or not the application turns on a change in law. It now appears that where there is a change in law an applicant needs to show a substantial injustice which cannot be demonstrated merely by the conviction being unsafe; whereas, where it does not turn on a change in law (at least in the context of poor advice cases), the Mateta test will suffice.