What happens when someone inadvertently enters the UK without a landing interview?

Question

As a follow-on question to Which queue for an unmarried EU/non-EU couple travelling through UK Immigration Control together? for a question that arose in the commentary...

There may remain several routes into the UK where an arriving passenger may not be checked by an Immigration Officer. Some of these occur on Eurostar (or other rail/ferry) and others might occur at City Airport during certain times of the day, and others occur when a passenger is simply waved through controls (however unlikely this seems in the current era). Sometimes a walking route through an airport is not completely secured which leads to a land-side exit and passengers may inadvertently follow it.

Sometimes these 'loopholes' are discovered (proof that this has happened on Eurostar), and sometimes they are not, or go for a long time unnoticed.

This question acknowledges that arrivals through the Republic of Ireland are a separate case and are out of scope here (perhaps the topic of a future question). Similarly, arrivals at private airfields in the UK are out of scope. Also it's not appropriate in TSE to list current inward routes where controls fail because I cannot assume that everyone reading TSE is well-intended.

Of course it's easy to say that since it's UKVI's fault the person has no liability, but is this actually the case?

Assuming such routes exist and that the person is well-intended, what is their immigration status in the UK during the time they are present in the UK? Are they in violation of any particular rule? More importantly, is there a procedure so that the person can normalize their status? The corollary to this question is alternatively, should we trust that the possibility of this happening is too remote to consider realistically?

Credible/authoritative sources needed, court decisions and legislation (including Ministerial Statements) cites gladly welcomed. Other credible sources also welcomed.

Answer 1

(I think this is more of a question for https://law.stackexchange.com/ than travel but I shall have a go at it.)

They are not merely in violation of a rule, they are in violation of the law and potentially committing a criminal offence.

Entry to the UK is tightly regulated by the Immigration Act 1971. The Act has been amended by many later enactments and statutory instruments, but helpfully all the relevant provisions remain within the 1971 Act (and the orders made under it). Probably it is wise to read the whole Act and all recent statutory instruments made under it. But the key points are---

3. General provisions for regulation and control.

(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 the provisions of, or made under, this Act;

http://www.legislation.gov.uk/ukpga/1971/77/section/3?view=plain

The Act is very clear, you must only enter the UK within the provisions of the Act. The argument, "Of course it's easy to say that since it's UKVI's fault the person has no liability", I would submit, is not easy at all to say in light of that law. For one, it is not a question of liability. The foreign citizen either has leave to enter or he does not. Who is liable is unlikely to be important in considering the legality of his removal; and it is not clear that Parliament intended the entry clearance to work on that kind of basis. If the immigration officer allows him admission in error or neglect, that is only acceptable if the Act (or orders made under it) directly provide that it is so.

[Continuing with the theme of 'fault', the House of Lords ruled in Khan (1977) that a person could be removed from the UK on the basis of another's deception in securing her entry clearance, of which she was unaware. Therefore I would surmise that the point is not to place blame on one person or another, but rather to find objectively if a person is permitted to enter, and whether she obtained proper clearance to do so. If the clearance is not valid, then, unless extenuating circumstances apply, the person must be removed. http://www.refworld.org/docid/3ae6b6ca0.html ]

Moreover, "given leave" has a clear meaning. You are not, I think it is fair to say, given leave by an omission, by walking around the back of the immigration desk. Being "given leave" must be a purposeful act. It could, I suppose, be in error by a man (with authority to admit you) waving you through.

Later in the enactment an offence of illegal entry is created.

24. Illegal entry and similar offences.

(1) A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months, or with both, in any of the following cases:—

(a) if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave;

http://www.legislation.gov.uk/ukpga/1971/77/section/24?view=plain

The word "knowingly" is a good argument here, can you be okay with just 'accidentally' walking out of the airport? Or 'accidentally' booking the right combination of trains and forgetting to get off in Paris? I think a judge would be very sceptical to such an argument. A traveller knows, or would reasonably be expected to know, that he must talk to immigration and receive a stamp.

Moreover the Act deliberately shifts the burden of proof onto the traveller, who must prove that he was given leave to be admitted (providing it is shown he entered in the last six months).

(4) In proceedings for an offence against subsection (1)(a) above of entering the United Kingdom without leave,—

(b) proof that a person had leave to enter the United Kingdom shall lie on the defence if, but only if, he is shown to have entered within six months before the date when the proceedings were commenced.

I suggest that is rather difficult to prove you were legally admitted if there is no stamp and no record of your entry except for a train ticket or a record on the airline reservation system.

Nonetheless the two points are distinct. The entry may be unauthorised ("without leave") without the criminal offence being necessarily being committed.

Certainly the person can be removed from the United Kingdom, at the expense of his inbound carrier if it is known. Carriers are strictly liable for transporting unlawful immigrants even if they do not know the person will be denied entry. Here is the official guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270022/chapter47.pdf

Turning to case law, an early example of the deference shown by the Courts to the government is in Khawaja v Secretary of State (http://www.bailii.org/uk/cases/UKHL/1983/8.html). The facts are a bit different to what you describe (there was deliberate deception), but one thing that stands out is,

if the immigration authority has reasonable grounds for believing that a person is an illegal entrant, the decision to remove him and to detain him until he is removed is for the authority. It is not subject to review by the courts, save to the limited extent recognised by what has come to be called "the Wednesbury principle".

Although the Courts move back and forth on this issue, the Immigration Act gives the Secretary of State wide powers to remove illegal entrants (or even legal entrants) without the possibility of judicial intervention, save in some Human Rights cases and other cases contrary to general public policy (e.g., person could be tortured or face death on return).

It is quite difficult to find specific examples of people accidentally entering the UK that were dealt with by a recorded judicial proceeding on bailii.org. So I shall have to leave my answer here for someone else to complete.

Nor am I aware of a means of "normalising" one's status. One can seek asylum of course, but it is probably better to exit quietly and later seek re-entry.