Law Report: Test of illegal entry to United Kingdom: Regina v Nailie and another - House of Lords (Lord Templeman, Lord Lowry, Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Woolf), 26 May 1993

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A person who disembarked from an aircraft or ship on arrival in the United Kingdom did not enter or seek to enter the country until he presented himself to an immigration officer or tried to evade immigration control. If, on presenting himself to the immigration officer, he did not lie or produce forged documents, but claimed political asylum, he was not an illegal entrant, even if he had used such documents or deception to leave another country.

The House of Lords dismissed an appeal by the Director of Public Prosecutions against the decision of the Court of Appeal ((1992) 1 WLR 1099) that the respondents, Yabu Hurerali Nailie and Rajaratnam Kanesrajah, were not guilty of the offence of facilitating the illegal entry of persons into the United Kingdom, contrary to section 25 of the Immigration Act 1971.

In each case the persons whom the respondents had assisted had used forged passports to leave other countries, but had not relied on them when claiming political asylum on arrival in the UK. The Court of Appeal held that since they had not practised any deception or attempted to enter clandestinely, there had been no illegal entry for the respondents to facilitate.

The question certified by the Court of Appeal was: whether a person seeking political asylum, who disembarked from a ship or aircraft at a port in the UK without a valid passport or other document satisfactorily establishing his identity or nationality, was, on disembarkation, an illegal entrant for the purposes of the 1971 Act.

Brian Barker QC and Martin Griffith (CPS HQ) for the Crown; Alper Riza QC and Michael Massih (Lizzimore Braithwaites, Holloway) for Nailie; Nicholas Blake and Frances Webber (Krish Ratna & Co, Southall) for Kanesrajah.

LORD SLYNN said the appellant's case was that a person could only be a legal entrant to the UK if he had a passport or other relevant document. Any person who sought to enter without a passport was an illegal entrant, even if they sought political asylum. Even if they were allowed to stay, it was said, that did not prevent a person who knowingly assisted their entry committing an offence under section 25.

But in his Lordship's view, the Act drew a distinction between 'arrival' and 'entry'. By section 3, power to give leave to enter was given to immigration officers who might examine persons arriving in the UK.

By paragraph 2 of Schedule 2, a person who had arrived, including transit passengers and those not seeking to enter, might be examined so the immigration officer might determine whether such persons might or might not enter the UK without leave. A person arriving by air at Heathrow did not enter the UK when he disembarked. Nor did he enter when he proceeded towards immigration control, evincing an intention to go through immigration rather than going on to a foreign destination. It followed that merely to disembark without a passport did not mean a person had ipso facto entered illegally.

A person only sought to enter when he presented himself to the immigration officer or tried to pass the area of immigration control without doing so.

If he presented himself to an immigration officer and lied or produced forged documents, he was seeking to enter in breach of immigration laws. But if he merely asked for political asylum and did not produce a forged document or otherwise seek to deceive the immigration officer, he was not a person entering or seeking to enter in breach of the immigration laws.

The test of the legality of his entry was whether leave had been lawfully obtained and not whether a valid passport or other relevant document was in his possession.

The critical feature of this case was that none of the travellers sought to rely on false documents nor did they themselves practice any fraud or deception on the immigration officers, or enter clandestinely. The fact that they had used forged documents to leave another country did not automatically mean they had practised deception to come into the UK.