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R v. Naillie; R v. Kanesarajah

R v Naillie; R v Kanesarajah

HOUSE OF LORDS

[1993] AC 674, [1993] 2 All ER 782, [1993] 2 WLR 927, [1993] Imm AR 462

Hearing Date: 20 April, 26 May 1993

26 May 1993

Index Terms:

Immigration -- Assisting illegal entry into United Kingdom -- Illegal entry -- Asylum seeker -- Asylum seeker using false documents to leave country of origin -- Asylum claimed immediately on embarkation in United Kingdom -- False documents not used to gain entry into United Kingdom -- Whether asylum seeker 'illegal entrant' -- Immigration Act 1971, ss 3, 11, 25.

Held:

The two respondents, N and K, were separately charged with facilitating the illegal entry of others into the United Kingdom contrary to s 25(1) of the Immigration Act 1971. N arranged for two Somali women and six Somali children to book a flight from Kenya to the United Kingdom using forged Tanzanian passports. N and the Somalis then travelled from Kenya to the United Kingdom on the same flight, in the course of which the aircrew took possession of the women's passports and handed them to an immigration official on arrival in the United Kingdom. When interviewed by immigration officers the two women claimed political asylum and were given temporary admission. N was meanwhile arrested and charged with facilitating the illegal entry of the Somalis into the United Kingdom. He was convicted. K took his wife's passport with him to Sri Lanka, where he allowed it to be altered to enable another woman and her child and two other persons to use it to leave Sri Lanka. K, the woman and her child and the other two persons then flew to London using airline tickets purchased in K's name. During the flight K retrieved his wife's passport and on disembarkation in the United Kingdom and the woman and the other two persons sought political asylum before going through immigration. They were given temporary admittance as asylum seekers. K was arrested in possession of the forged passport and charged with facilitating the illegal entry of the woman and the other two persons into the United Kingdom. He was convicted. Both N and K appealed to the Court of Appeal which allowed the appeals on the ground that the asylum seekers had not entered clandestinely or by means of deception by proferring forged documents to immigration officers and were not illegal entrants for the purposes of s 25(1) of the 1971 Act. Accordingly, an essential element of the offence with which N and K had been charged had not been made out. The Director of Public Prosecutions appealed.

Held -- Section 3 of the 1971 Act made a distinction between arrival and entry into the United Kingdom and a person was only an 'illegal entrant' for the purposes of the 1971 Act if he sought to enter the United Kingdom by producing a forged passport or attempting to deceive an immigration officer in a material way. If on the other hand he presented himself to an immigration officer and asked for political asylum and did not produce a forged document or otherwise seek to deceive or in fact deceive the immigration officer he was not entering or seeking to enter in breach of the immigration laws and was not an "illegal entrant". Under s 11 a person had not entered while he was awaiting examination or being examined by an immigration officer. A person did not enter the United Kingdom when he disembarked and merely to disembark without a passport or in possession of forged documents used to leave another country did not mean that a person had ipso facto entered illegally. Since none of the travellers with N and K sought to rely on false documents nor did they themselves practise any fraud or deception on the immigration officers nor did they enter clandestinely, they were not illegal entrants and N and K had not facilitated their illegal entry under s 25 of the 1971 Act. The appeal would therefore be dismissed.

Decision of the Court of Appeal, Criminal Division [1993] 1 All ER 75 affirmed.

Notes:

For illegal entry into the United Kingdom, see 4 Halsbury's Laws (4th edn) para 118, and for cases on the subject, see 2 Digest (Reissue) 199-200, 1153-1154.

For the Immigration Act 1971, ss 3, 11, 25, see 31 Halsbury's Statutes (4th edn) 52, 64, 77.

Cases referred to in the Judgment:

Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, [1983] 2 WLR 321, HL.

Vilvarajah v Secretary of State for the Home Dept [1990] Imm AR 457, CA.

Introduction:

Appeal The Director of Public Prosecutions appealed with leave of the Appeal Committee granted on 11 February 1993 from the decision of the Court of Appeal (Watkins LJ, Swinton Thomas and Garland JJ) ([1993] 1 All ER 75, [1992] 1 WLR 1099) on 14 April 1992 allowing the appeals of the respondents Yabu Hurerali Naillie who was convicted on 7 August 1991 in the Crown Court at Isleworth before Judge Simon Evans and a jury of facilitating illegal entry into the United Kingdom contrary to s 25(1) of the Immigration Act 1971, for which he was sentenced to 18 months' imprisonment, and Rajaratnam Kanesarajah who was convicted on 18 November 1991 in the Crown Court at Croydon before Judge Sir David Hughes-Morgan and a jury of facilitating illegal entry into the United Kingdom contrary to s 25(1) of the Immigration Act 1971, for which he was sentenced to 15 months' imprisonment. The facts are set out in the opinion of Lord Slynn.

Counsel:

Brian Barker QC and Martin Griffith for the Director of Public Prosecutions; Alper Riza QC and Michael Massih for the respondent Naillie; Nicholas Blake and Frances Webber for the respondent Kanesarajah.

Judgment-READ:

Their Lordships took time for consideration. 26 May 1993. The following opinions were delivered.

PANEL: LORD TEMPLEMAN, LORD LOWRY, LORD BROWNE-WILKINSON, LORD SLYNN OF HADLEY, LORD WOOLF

Judgment One:

LORD TEMPLEMAN: My Lords, for the reasons given by my noble and learned friend Lord Slynn of Hadley, I would dismiss these appeals and answer the certified question in the negative.

Judgment Two:

LORD LOWRY: My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Slynn of Hadley. I agree with it and for the reasons which he gives I, too, would dismiss these appeals.

Judgment Three:

LORD BROWNE-WILKINSON: My Lords, I have read the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons which he gives, I too would dismiss both appeals.

Judgment Four:

LORD SLYNN OF HADLEY: My Lords, the Director of Public Prosecutions on behalf of the Crown Prosecution Service appeals against decisions of the Court of Appeal that the first and second respondents, Mr Naillie and Mr Kanesarajah, were not guilty of the offence of facilitating the illegal entry of persons into the United Kingdom contrary to s 25 of the Immigration Act 1971. None of the persons involved was a patrial within the meaning of the Act. That section provides:

'(1) Any person knowingly concerned in making or carrying out arrangements for securing or facilitating the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant shall be guilty of an offence . . .'The facts in the two cases are quite distinct; the issue, however, is similar. The two cases were heard together both in the Court of Appeal ([1993] 1 All ER 75, [1992] 1 WLR 1099) and before your Lordships' House and the question of law of general public importance raised in each case was certified by the Court of Appeal to be:

'Whether a person seeking political asylum who disembarks from a ship or aircraft at a port in the United Kingdom without a valid passport or other document satisfactorily establishing his identity and nationality is on disembarkation an illegal entrant for the purposes of the Immigration Act 1971.'The facts of the two cases in summary are these.

(i) Mr Naillie

On 3 March 1991 two Somali women and six children arrived at London Heathrow from Kenya via Muscat. Their passports were taken from them by aircrew who handed the documents to an immigration official at Heathrow. The women on interview by an immigration officer claimed political asylum. Each was served with a 'Notice to Illegal Entrant' under the 1971 Act but granted temporary admission into the United Kingdom. The passports were forged Tanzanian passports. Inquiries revealed that Mr Naillie had booked tickets for the whole group, relying on the forged Tanzanian passports for that purpose, on 1 March 1991. There was evidence that he had looked after the checking in of the whole group of Nairobi and that on part of the flight the whole group travelled together though Mr Naillie denied this. The jury found him guilty of the offence charged and he was sentenced to 18 months' imprisonment.

(ii) Mr Kanesarajah

This respondent flew to Sri Lanka on 9 March 1991 taking with him his wife's passport. He allowed that passport to be forged by the substitution for the original photograph of a photograph of a woman and child. On 25 April 1991 airline tickets were purchased for the respondent and three persons who were to travel on the same passport. All four boarded the aircraft and during the flight to London (via Dubai) Mr Kanesarajah took the passport back. The three persons on disembarkation claimed political asylum. They were not asked to produce passports and they did not claim that they or any of them were the persons named in the passport. On arrest Mr Kanesarajah was found to be in possession of his wife's passport (as forged) and the travel documents issued to the three other travellers. On conviction by a jury he was sentenced to 15 months' imprisonment.

The Court of Appeal, following the decision of your Lordships' House in Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, held that since there had been no attempt in either case by the other travellers to use forged passports, they could not have been illegal entrants. It was not suggested that the travellers had practised any deception and evidently they had not attempted to enter clandestinely. Accordingly the Court of Appeal held that neither respondent could have facilitated the illegal entry of the persons concerned.

In view of the arguments which have been advanced it is necessary to refer to some of the provisions of the Immigration Act 1971, as amended by s 39(6) of and para 2 of Sch 4 to the British Nationality Act 1981, and of the immigration rules (see Statement of Changes in Immigration Rules (HC Paper (1989-90) no 251). The Act provides:

'3. -- (1) Except as otherwise provided by or under this Act, where a person is not a British citizen -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act . . .

(2) The Secretary of State shall . . . lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter . . .

4. -- (1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers . . .

(2) The provisions of Schedule 2 of this Act shall have effect with respect to . . . (b) the examination of persons arriving in or leaving the United

Kingdom by ship or aircraft . . . and (c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom . . .

11. -- (1) A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act . . .

33. -- (1) For purposes of this Act, except in so far as the context otherwise requires . . . "entrant" means a person entering or seeking to enter the United Kingdom, and "illegal entrant" means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered . . .'

By Sch 2:

'2. -- (1) An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purpose of determining . . . (b) whether, if he is not, he may or may not enter the United Kingdom without leave . . .

4. -- (2) A person on his examination under paragraph 2 or 3 above by an immigration officer shall, if so required by the immigration officer -- (a) produce either a valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship . . .'

By the immigration rules made under s 3(2) of the 1971 Act with effect from 1 May 1990:

'7 A person must, on arrival in the United Kingdom, produce on request by the immigration officer a valid national passport or other document satisfactorily establishing his identity and nationality. Everyone arriving in the United Kingdom is liable to be examined and must furnish the immigration officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given . . .

Passengers in transit

13 Detailed examination of a passenger whose sole purpose is transit to a country outside the common travel area is unlikely to be required once he has satisfied the immigration officer that he has both the means and the intention of proceeding at once to another country and is assured of entry there. If the immigration officer is not so satisfied, leave to enter is to be refused . . .

Refugees

21 Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees [Convention and Protocol relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171 and New York, 31 January 1967; TS 15 (1969); Cmnd 3906]. Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments . . .

75 Special considerations apply where a person seeking entry claims asylum in the United Kingdom, or where it appears to the immigration officer as a result of information given by that person that he may be eligible for asylum in the United Kingdom. Every such case is to be referred by the immigration officer to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. The Home Office will then consider the case in accordance with the provisions of the Convention and Protocol relating to the Status of Refugees . . .'

The appellant's case is essentially that a person can only be a legal entrant to the United Kingdom if he has a passport or other relevant document. Any person who enters or who seeks to enter the United Kingdom without a passport is an illegal entrant. This, it is said, applies no less to those seeking asylum. If they have a passport and seek to enter asking for political asylum they are legal entrants; if they do not have a passport they are illegal entrants; there is no third status of 'asylum seekers'. Even if as illegal entrants they may be allowed to stay under the special provisions set out in immigration rules and the 1951 Geneva Convention as amended by the 1967 Protocol, that does not prevent a person from committing an offence under s 25 of the 1971 Act if he makes or carries out arrangements for securing or facilitating their entry into the United Kingdom when he knows or has reasonable cause for believing that they are illegal entrants because they have no passports.

It seems to me that when a prosecution is brought under s 25 of the 1971 Act the first question is whether the persons concerned are 'illegal entrants'; the second is whether the accused knew or had reasonable cause for believing them to be such; and the third whether the defendant was knowingly concerned in making or carrying our arrangements for securing or facilitating their entry into the United Kingdom.

As to the first question s 3 of the Act draws a distinction between arrival and entry. Thus a person shall not enter without leave and the power to give leave to enter is vested in immigration officers who may examine persons arriving in the United Kingdom. By s 11 a person has not entered whilst he is in a place approved for the purposes (semble) of awaiting examination and being examined. Nor has he entered when he is temporarily admitted under powers conferred by Sch 2 to the Act.

By para 2 of Sch 2 a person who has arrived, including transit passengers and persons not seeking to enter, may be examined so that the immigration officer may determine whether such person may or may not enter the United Kingdom without leave.

The pattern of the Act is thus that a person arriving in the United Kingdom by air must present himself to an immigration officer, and if so required, be examined, furnish information and produce a valid passport or other document. He can only enter lawfully if he is given leave. He is an illegal entrant if he comes in without such leave or in breach of the immigration laws, eg by deceiving the immigration officer knowingly or otherwise.

A person arriving by air at Heathrow does not enter the United Kingdom when he disembarks. Nor, contrary to the appellant's argument, has he entered when he proceeds towards immigration control having passed the transit corridor, thereby evincing an intention to go through immigration rather than to seek to go to a foreign destination. It follows that merely to disembark without a passport does not mean that a person has ipso facto entered illegally.

It is said however that 'illegal entrant' includes a person seeking to enter in breach of the immigration laws. However, a person in my opinion is not seeking to enter within the meaning of the Act when he disembarks. He seeks to enter when he presents himself to the immigration officer or when he tries to pass out of the area of immigration control without presenting himself to the immigration officer. Thus if he presents himself to the immigration officer and produces a forged passport or lies in a material way he is seeking to enter in breach of the immigration laws. If he is discovered to have forged documents he is an 'illegal entrant' within the definition set out in the Act. If he succeeds and is allowed in on the basis of forged documents he is also an 'illegal entrant'.

On the other hand, if he presents himself to an immigration officer and asks for political asylum and does not produce a forged document or otherwise seek to deceive or deceive the immigration officer he is not a person entering or seeking to enter in breach of the immigration laws.

He may not succeed in getting political asylum; even after temporary admission he may be refused leave. But he is not an illegal entrant for the purposes of the Act since he has not entered or sought to enter in breach of the immigration laws whether or not he has a passport.

The same is true of a person who on arrival openly goes to the immigration officer and says that he has mislaid his passport and asks whether he can establish his identity in any way without the appropriate document. He may be refused and returned from whence he came. He is not at that stage, in my view, an illegal entrant. He has not entered or sought to enter in breach of the immigration laws. The test of legality of his entry is whether leave has been lawfully obtained and not whether a valid passport or other relevant document is in his possession.

The critical feature of the present case is that none of the travellers sought to rely on false documents nor did they themselves practise any fraud or deception on the immigration officers nor did they enter clandestinely. They were not charged with any of the offences of knowingly entering without leave under s 24 of the Act or of refusing or failing to be examined or producing documents or making false statements or having in their possession any passport which they knew or had reasonable cause to believe to be false within the meaning of s 26 of the Act. The fact that they used forged documents to leave another country (without which, as Donaldson MR pointed out in Vilvarajah v Secretary of State for the Home Dept [1990] Imm AR 457 at 459-460, they might not have got out of that country) does not mean automatically that they practised deception to come into the United Kingdom. Here they all declared at once that they were seeking political asylum and they did not seek in any way to rely on the forged passports which in any event they no longer had in their possession. However it must be stressed that in relation to a charge of facilitating illegal entry under s 25 of the 1971 Act the position of a defendant may be very different in a case where the person in reality seeking asylum either (a) relies only on forged documents or (b) relies initially on forged documents but when the falsity is revealed or the authenticity of the documents challenged, changes tack and seeks to claim political asylum.

However desirable it may be to stop the trafficking in people and documents for the purpose of seeking entry into the United Kingdom, in the present case the Court of Appeal came quite clearly to the correct conclusion and I would dismiss both appeals.

Judgment Five:

LORD WOOLF: My Lords, I have read the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons which he gives, I too would dismiss both appeals.

DISPOSITION:

Appeals dismissed.

SOLICITORS:

Crown Prosecution Service; Lizzimore Braithwaites; Krish Ratna & Co.

Topics: Illegal entry,