A gay Nigerian refugee who was jailed after trying to seek asylum in Canada by travelling using another person’s passport has won an appeal against his conviction.
The Court of Appeal ruled on Thursday (14 November) that Richard Idahosa had not been properly informed about his rights as a “refugee in transit” when he pleaded guilty to possessing an identity document with improper intent in 2013.
People who arrive in the UK directly from a country where their life or freedom is threatened have a defence against this offence under section 31 of the Immigration and Asylum Act 1999.
The 54-year-old, who was granted refugee status by the Home Office in 2015, was sentenced to 15 months in prison which he has now long since served.
However, his criminal record has continued to cause him difficulties in obtaining suitable employment in the UK.
The court heard how Idahosa, originally from Benin City, lawfully travelled to the UK on a tourist visa in April 2013 after his sexuality had been revealed and he no longer found it safe to remain in Nigeria – where same-sex conduct is banned.
Two months later he attempted to travel to Canada to be reunited with his partner, Abu, where he intended to seek asylum.
He was stopped at Gatwick Airport having been caught using a British passport belonging to a person named Sunday Egbefe Afigod. Idahosa could not travel to Canada using his own passport because, unlike British nationals, Nigerians must apply for a visa while still in their home country.
‘Not Given An Informed Choice’
Idahosa was questioned at Crawley police station. Image Credit: Geograph.
The court heard that Idahosa was arrested and questioned at Crawley Police Station but received no legal advice from duty solicitor Timothy Spooner, as he would not speak to him for “fear of self-incrimination.”
Judges were told that he received letters from solicitor Jega Krishnasamy while remanded in custody, which assessed the prosecution’s case against him as being “extremely strong” but did not touch on his section 31 defence.
Idahosa was then represented by barrister Fiona Rowling at a preliminary hearing on 13 July 2013. The two dispute what they discussed with each other at the hearing, but Idahosa ultimately pleaded guilty in the hope that he would get a more lenient sentence.
In his judgment, judge Robert Jay wrote: “Ms Rowling did not tell the [Idahosa] that he might have a defence because she did not believe that any such defence could possibly succeed.
“From her perspective the problems seemed numerous: [his] failure to apply for asylum here and her understanding that he believed he was not entitled to it; [his] family circumstances; [his] apparently inexplicable wish to go to Canada where he would be seeking asylum; [his] that he was in fact going to Canada out of choice and not through necessity.
“We do not think that the parameters of section 31 were made clear to [Idahosa], and in our view he was not given the opportunity to make an informed choice.”
‘The Wait Seemed Like An Eternity’
Jay acknowledged that Idahosa gave Rowling “scanty” instructions in their discussions which left her “slightly confused”, but added that this “should have generated further inquiry” on her part.
Jay suspected the confusion was because the barrister could not understand why Idahosa did not claim asylum in the UK during the 54 days before he attempted to set off to Canada. In order to qualify for the section 31 defence, asylum seekers must present themselves to the authorities “without delay.”
The court heard that Idahosa had spent this time in a south London flat waiting to hear from an agent, known to him as “Czar”, who he had paid around £1,000 to arrange his passage to Canada.
Idahosa told the court: “I did not [leave the flat] except to meet the agent on Saturdays when he would tell me what was happening. … I was so consumed with thoughts of joining Abu in Canada that the wait seemed like eternity.”
He added: “I did not even unpack my bag. I was hoping every day would be the day I got the call from the agent to tell me I was leaving.”
Jay concluded that it was clear the Idahosa wanted to be with his partner in Canada, and had no desire to claim asylum in the UK. “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,” he wrote.
Idahosa’s appeal was funded with legal aid.