The Criminal Cases Review Commission has referred the conviction of Hazifa Chikhmous to the Crown Court.
Mr Chikhmous is a Syrian national who arrived by air at Gatwick Airport in 2012 and claimed asylum. He did not have a passport when he arrived.
He was arrested and charged with failing to produce an immigration document contrary section 2(1) of the Asylum and Immigration (treatment of claimants) Act 2004).
His solicitors advised him that he had no defence to the charge despite being aware that he could not have obtained a Syrian passport and was at risk of persecution there because of close family connections with prominent opponents of the Syrian regime.
On the day after his arrival in the UK Chikhmous followed the legal advice he was offered and pleaded guilty at Crawley Magistrates Court. He was sentenced to 12 weeks imprisonment. He was granted asylum by the Home Office while still serving his prison sentence.
Because he pleaded guilty in a magistrates court, Chikhmous was not entitled to appeal against his conviction. He approached the Criminal Cases Review Commission in 2015.
Having considered the case in detail, the Commission has decided to refer the case for appeal.
The referral is made on the basis that Mr Chikhmous could not have made an informed choice as to plea because the legal advice he received was incorrect and that he should have been entitled to rely on the statutory defence available under section 2(4)(c) of the Asylum and Immigration (Treatment of Claimants) etc. Act 2004); namely that he had a reasonable excuse for not having a travel document.
The Commission therefore considers there is a real possibility that the Crown Court will conclude that, in all the circumstances, it should allow Mr Chikhmous to vacate his guilty plea on the basis that he was deprived of a defence that was likely to have succeeded.
In reaching its decision the Commission has considered the case of R v Mehmet Ordu  EWCA Crim 4 because it is possible that the appeal court may find that the defence advice was wrong only because of a subsequent change of law. In any event the Commission has taken the view that, even if the appeal court finds the defence advice was wrong at the time, substantial injustice may still be considered. This is because, while this may be considered a relatively minor conviction with an application made almost three years later, its longer term implications for Mr Chikhmous are arguably significant.
Mr C was not legally represented in his application to the Commission.
This case is one of a number involving asylum seekers and refugees that the Commission has referred to the appeal courts in recent months. Several other cases raising similar issues are currently being investigated by the Commission.
Two articles written by the Commission discussing other cases and explaining the issues and the law in this area can be seen on the Law Society Gazette website at:
This press release was issued by the Criminal Cases Review Commission. For further enquires call 0121 233 1473 or e-mail firstname.lastname@example.org
Notes for editors
- The Commission is an independent body set up under the Criminal Appeal Act 1995. It is responsible for reviewing suspected and alleged miscarriages of criminal justice in England, Wales and Northern Ireland. It is based in Birmingham and is funded by the Ministry of Justice.
- There are currently 12 Commissioners who bring to the Commission considerable experience from a wide variety of backgrounds. Commissioners are appointed by the Queen on the recommendation of the Prime Minister in accordance with the Office for the Commissioner for Public Appointments’ Code of Practice.
- The Commission usually receives around 1,500 applications for reviews (convictions and/or sentences) each year. Typically, around 3.5%, or one in 29, of all applications are referred to the appeal courts.
- The Commission considers whether, as a result of new evidence or argument, there is a real possibility that the conviction would not be upheld were a reference to be made. New evidence or argument is argument or evidence which has not been raised during the trial or on appeal. Applicants should usually have appealed first. A case can be referred in the absence of new evidence or argument or an earlier appeal only if there are “exceptional circumstances”.
- If a case is referred, it is then for the appeal court to decide whether the conviction is unsafe or the sentence unfair.