R v Nailie and Another
| Jurisdiction | England & Wales |
| Judge | Lord Templeman,Lord Lowry,Lord Browne-Wilkinson,Lord Slynn of Hadley,Lord Woolf |
| Judgment Date | 26 May 1993 |
| Judgment citation (vLex) | [1993] UKHL J0526-3 |
| Court | House of Lords |
| Date | 26 May 1993 |
[1993] UKHL J0526-3
HOUSE OF LORDS
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
Lord Templeman
Lord Lowry
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Woolf
My Lords,
For the reasons given by my noble and learned friend, Lord Slynn of Hadley I would dismiss both appeals and answer the certified question in the negative.
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.
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.
My Lords,
The Director of Public Prosecutions on behalf of the Crown Prosecution Service appeals against decisions of the Court of Appeal that Mr. Nailie and Mr. Kanesrajah (the first and second respondents) 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. 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 ( [1992] 1 W.L.R. 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. Nailie
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 Act of 1971 but granted temporary admission into the United Kingdom. The passports were forged Tanzanian passports.
Enquiries revealed that Mr. Nailie 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 in Nairobi and that on part of the flight the whole group travelled together though Mr. Nailie denied this.
The jury found him guilty of the offence charged and he was sentenced to eighteen months' imprisonment.
(ii) Mr. Kanesrajah
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. Kanesrajah 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. Kanesrajah 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 fifteen months' imprisonment.
The Court of Appeal following the decision of your Lordships' House in Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] A.C. 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 section 39(6) of and paragraph 2 of Schedule 4 to the British Nationality Act 1981, and of the Immigration Rules. 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...
To continue reading
Request your trial
-
CIS 2702 2000
...considered the difference between “arrival” and “entry” as used in the 1971 Act. Citing the House of Lords decision in R v. Naillie [1993] AC 674 he had said that “arrival” was physical arrival and preceded “entry” as that term was used in the 1971 Act. In his paragraphs 17 and 18 Commissio......
-
Emmanson's Application (Fyneface Boma) (No 2)
...the applicant at paragraph [43] of my judgment. Ms Higgins also referred me to the decision of the House of Lords in R v Naillie & Anor [1993] AC 674 in relation to the same point. That was an authority to which she had not referred at the original hearing. She invited me to alter my decisi......
-
Emmanson’s (Fyneface) Application
...indicates that it has not been followed though no authority is cited for that proposition apart from referring to the case of R v Naillie [1993] AC 674, an authority in which the decision was not cited and which is not in point because it dealt with a quite separate question, namely when a ......
-
R v Secretary of State for the Home Department and Another
...parte Yassine [1990] Imm AR 354�and that their claims (if properly made on arrival) must not on that account be rejected�see R v Naillie [1993] AC 674 at 680�no one suggests that the respondent is under the least obligation to facilitate their arrival in the first place. Rather, as I have a......