S & Ors v Secretary of State for the Home Department

This is an appeal by the Secretary of State from paragraph 4 of an order made by Sullivan J in the Administrative Court on 12^th May 2006. The Secretary of State does not challenge the remainder of the judge’s order whereby he

allowed the respondents’ claim for judicial review (para 1);

quashed the Secretary of State’s decision dated 3^rd November 2005, which was to the effect that it was not “appropriate” to grant the respondents discretionary leave and that they should “remain on temporary admission” (para 2);

declared that the delay on the part of the Secretary of State in granting the respondents leave to enter this country was unlawful (para 3);

made a mandatory order that the Secretary of State grant the respondents a period of six months’ discretionary leave to enter this country within seven days of the order being sealed (para 5);

directed the Secretary of State to pay the costs of the respondents on an indemnity basis (para 6); and

directed a detailed assessment of the respondents’ publicly funded Community Legal Service costs (para 7).

By para 4 of his order, which is under challenge on this appeal, the judge made a declaration to the effect that the following parts of the Secretary of State’s policy relating to Discretionary Leave, issued on 30^th August 2005, were unlawful:

The reason why the Secretary of State is appealing this part of the judge’s order is that, while he complied with para 5 of the order and granted the respondents a period of six months’ Discretionary Leave to enter this country on 19^th May 2006, this period ends on 19th November 2006, and he wishes to be able, if he sees fit, to decline to grant a further period of Discretionary Leave at the end of that period and to place the respondents thereafter on temporary admission, which he will be unable to do unless that part of the judge’s order is set aside. More generally, he wishes to obtain confirmation from this court that his newly adopted policies for handling a rare type of case are not unlawful.

So far as the facts of the case are concerned, the respondents are Afghans, and on 6^th February 2000 they hi-jacked a jet aircraft of the Afghan national airline on an internal flight from Kabul to Mazar-i-Sharif. They compelled the pilot to fly the aircraft to Stansted, via Tashkent (to refuel), Aktyubinsk in Kazakhstan (for minor repairs), and Moscow. The aircraft landed at Stansted at 2 am on the morning of 7^th February 2000, and they remained in control of the aircraft for 70 further hours until the morning of 10^th February 2000 when they surrendered to the British authorities.

The respondents had four firearms in their possession (although they were to maintain that these had all been unloaded before the aircraft landed at Stansted), and two loaded hand grenades were found on the plane after they left it. The evidence at their second criminal trial showed that the respondents had used the firearms threateningly as part of the means of keeping the crew and passengers on board. A photograph produced at the trial showed a hi-jacker apparently pointing a gun at a passenger who had been ejected from the aircraft and made to kneel on the tarmac at Stansted. Longmore LJ, giving the judgment of the criminal division of this court, said that there could be no doubt that the events at Stansted must have been as terrifying for the innocent passengers as any of the respondents’ previous activities.

Some of the passengers on the aircraft were relatives or colleagues of the respondents, but about a hundred of them were not. The respondents and a number of those who fell into the former category claimed asylum in this country. The other passengers flew back to their homes in Afghanistan.

The respondents were all charged with one offence of hi-jacking an aircraft, two offences of false imprisonment, one offence of possessing firearms with intent, and one offence of possessing explosives (the two loaded hand grenades).

None of the respondents disputed the main thrust of the facts alleged against them, but they all relied on the defence of duress of circumstances. They said that they all acted under an imminent threat of death or serious injury against them or those for whom it was reasonable for them to accept responsibility. They were all members of the organisation of Young Intellectuals of Afghanistan (“the YIA”). The Taliban, who were then in power in Afghanistan, had discovered this organisation and identified it as a political opponent. They had arrested and tortured four of its members, and these members between them knew the names of the respondents and most of the organisation’s other members. The Taliban customarily used torture to extract information. They would therefore have discovered all these names, and these people and their families would all have been at risk of capture, torture and death.

In turn they would have been forced to reveal the names of other members of the YIA, so that the risk of capture, torture and death extended to all the members of the organization. There was also evidence to the effect that a specific list of 35 members of the YIA had fallen into the Taliban’s hands.

The respondents maintained that they had no alternative but to act as they did. The actions they took after the plane landed at Moscow and Stansted continued, they said, to be the result of duress, because there was then an imminent threat of their being removed by the relevant authorities directly to Afghanistan, or indirectly via Pakistan (with the risk of death or serious injury because Pakistan would return them to Afghanistan).

The respondents were all charged with five serious criminal offences. At their first trial, the jury failed to agree. At a second trial, they were convicted on all counts, but were given comparatively light sentences on account of the mitigating circumstances. Their convictions were set aside in June 2003 by the Criminal Division of this court because it concluded that the second Trial Judge had given the jury a misdirection of law in relation to the problematic defence of duress of circumstances. Because most of the respondents had by then served their sentences in full, the court did not direct a re-trial.

The way was then open for the consideration of their applications for asylum. These were refused by letters dated 25^th June 2003, supplemented by further letters dated 14^th October 2003. In the refusal letters there was no challenge to the credibility of their claims in relation to their political involvement with the YIA, to the exposure of that organisation to the Taliban, or to their admission that they had hi-jacked an aircraft. Issue was taken with the claims some of them had made about their previous history, but the main part of the refusal letters was concerned with the general position in Afghanistan in 2003.

Reference was made to the developments in that country since the Bonn Agreement in December 2001, the outcome of the Loya Jirga in June 2002, the establishment of the transitional administration under Hamid Karzai, and the steps taken by that administration towards stabilising Afghanistan, and in particular Kabul. These considerations led to the Secretary of State’s conclusion that it would be safe for the respondents to return to Afghanistan, where they would receive sufficiency of protection. Their claims under both the Refugee Convention and Article 3 of the European Convention on Human Rights (“ECHR”) were therefore rejected. The supplementary refusal letters dealt more specifically with the individual claims made by each of the respondents in statements they had filed in conjunction with their appeal to an adjudicator.

The appeals were heard, unusually, by a panel of three adjudicators, who heard evidence for eight days in April-May 2004 and issued their determination on 8^th June 2004. In a very long and detailed determination the panel in essence accepted the respondents’ account of the events that led up to the decision to hi-jack the aircraft. Since 1998, when the Taliban occupied Mazar-i-Sharif, their organisation had had to operate in secret. It had 1,841 members when they left Afghanistan, and it had been in consequence of their desire to expand the organisation, particularly in Herat and Kandahar provinces, that they had invited 35 people to a meeting in Kabul, ostensibly to study the Holy Q’ran. It was this list of 35 names that had come into the possession of the Taliban.

The panel described the events of January and early February 2000 in some detail. It was on 12^th January that it was learned that the Taliban had detained four members of the organisation, and it was later understood that these men had been tortured and had disclosed the names of the 35. Towards the end of January the dead body of one of them was delivered to his family home bearing marks of torture. The homes of two of the respondents were searched and, although on 1^st February the idea of hi-jacking an aircraft (proposed by someone who worked for the airline) had been rejected, three days later it was learned that 17 further members of the organisation had been arrested. It was then decided to go ahead with this idea. Tickets on the aircraft, and the facility to bring guns onto the aircraft, were secured through bribery of two officials.

The adjudicators considered that the respondents had disqualified themselves from any entitlement to asylum by virtue of Article 1F(b) of the Refugee Convention which provides that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

The panel expressed their conclusion on this part of the case in these terms:

They then went on to consider the claim that ECHR Article 3 precluded the respondents’ return to Afghanistan. On this aspect of the case they said:

The panel then considered the Secretary of State contention that there would be sufficient protection for the respondents if they were returned to Kabul. On this issue the panel said:

On 23^rd July 2004 the Deputy President of the Immigration Appeal Tribunal refused an application by the Secretary of State for permission to appeal. He said that the determination appeared to him to be a careful and proper examination of all the evidence in its proper context. It could not be said that the evidence compelled the findings, but looking at them generally and in the light of the grounds of appeal he could see no error of law. The Secretary of State did not seek to set aside this ruling by an application for statutory review in the High Court.

The way was therefore open to the Secretary of State to give effect to the adjudicators’ findings by implementing the relevant part of his published policies in favour of the respondents. For this purpose it is necessary to consider the powers available to the Secretary of State at that time.

Section 3A(1) of the Immigration Act 1971 gave the Secretary of State power by order to make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom (“leave to enter”). The Immigration (Leave to Enter) Order 2001 was made under this power. Article 2 is in these terms:

The Secretary of State has published from time to time the principles on which he will exercise this power. We need not be concerned with the principles on which he granted exceptional leave to enter (or to remain) prior to 1^st April 2003, because on that date he introduced a new system. This was explained in the first paragraph of the new Asylum Policy Instruction (“API”) that took effect from that date:

Because the respondents were held not to be entitled to asylum through the operation of Article 1F(b) of the Refugee Convention, the Secretary of State’s Humanitarian Protection policy did not apply. At the material time para 2.5 of that policy provided that:

The Discretionary Leave API starts, for its part, in these terms:

Paragraph 2.6 of the policy stated, under the heading "Applicants excluded from Humanitarian Protection”:

The exclusion criteria in relation to Humanitarian Protection cases are then set out (para 2.7), and the policy continues:

Paragraph 5 deals with the duration of grants of Discretionary Leave. It states:

Paragraph 8 of the Discretionary Leave API provided that those with Discretionary Leave would normally be eligible for consideration for settlement in the United Kingdom after six years' continuous Discretionary Leave. However, those in the excluded categories were not eligible for consideration for settlement until they had completed ten years of Discretionary Leave. After ten years Ministers could still decide that it would be "conducive to the public good" to deny settlement (see para 8.4).

It follows that the respondents unquestionably qualified under paras 2.6 and 5.1 of the Discretionary Leave API for a grant of six months’ Discretionary Leave.

Although the Secretary of State filed no evidence in answer to the respondents’ application for judicial review, it appears that he did not want to implement his policy. Instead, he prevaricated for over a year in a way that is fully set out in Sullivan J’s judgment. He then promulgated different policies on 30^th August 2005. His new Humanitarian Protection policy did not differ from its predecessor in any material respect, but the new Discretionary Leave policy contained the features which the judge declared to be unlawful. Para 2.6 of the new policy provides as follows (with the new elements of the policy italicised):

The duration of leave is dealt with in para 5.1 of the new policy, where the material change is in these terms (with the new elements of the policy again italicised):

In para 6.3 of the new policy (“Curtailment/variation of leave on the grounds of character or conduct (including deception)”) the following new provision appears:

On 3^rd November 2005 the Secretary of State broke his long silence. He told the respondents’ solicitors he had given careful consideration to all the circumstances of their clients' cases. In making his decision, he had had regard (among other matters) to the Adjudicators' analysis of the application of Article 1F(b) at paras 40 to 93 of the determination; the judgment of the Court of Appeal of 6th June 2003; the matters raised in the Detailed Statement of Grounds for judicial review and the accompanying documentation; and the public interest in deterring acts such as hijacking. In view of all the circumstances of the case he had decided that Discretionary Leave was not appropriate and that the respondents should remain on temporary admission.

Whether he was legally empowered to make a decision of this kind depends on whether he was entitled to include in the new API the passages we have italicised above. The reason why the judge declared them to be unlawful was because he considered that the status of “temporary admission or temporary release” was one which had no parliamentary sanction in this context. He also considered that the wording gave ministers an arbitrary, unfettered power to interfere with the respondents’ rights under ECHR Article 8(1) in a manner that was at odds with the rules most recently explained by Lord Bingham in his speech in R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12; [2006] 2 WLR 537:

The concept of “temporary admission” stems from paras 16 and 21 of Schedule 2 to the Immigration Act 1971, which are in these terms:

Judicial uncertainty as to the meaning of the word “pending” in para 16(2) of Schedule 2 was resolved by the House of Lords R (Khadir) v Secretary of State for the Home Department [2006] UKHL 39, http://www.bailii.org/uk/cases/UKHL/2005/39.html [2006] 1 AC 207. The claimant in that case was an Iraqi Kurd whose claim for asylum was refused by the Secretary of State and whose appeal was dismissed by an adjudicator in August 2001. Following the dismissal of the appeal his solicitors had asked the Secretary of State to grant him exceptional leave to enter (the concept that was replaced by the 2003 policies on Humanitarian Protection and Discretionary Leave). In May 2002 the Secretary of State refused to do so, on the grounds that a safe route for Iraqi Kurds to return to the autonomous region of Iraq was still being investigated, and he kept the claimant on temporary admission which was periodically extended. The claimant applied for judicial review.

Crane J concluded that the claimant's temporary admission was no longer lawful, because he could no longer be detained since removal was not “pending”. He therefore allowed the application. This court affirmed the reasoning of the judge, but applied s 67 of the Nationality, Immigration and Asylum Act 2002, which had been enacted since the judge’s decision. This section is in these terms:

The House of Lords dismissed the claimant’s appeal, but for different reasons. The main speech was given by Lord Brown of Eaton-under-Heywood, who said:

Lord Brown then considered and rejected a submission that the Secretary of State had failed to give proper reasons for refusing Exceptional Leave to Enter (“ELE”). He said (at para 35):

Khadir was an entirely different case from the present. Mr Khadir had no entitlement to be in this country, and no ruling in his favour to the effect that his Article 3 rights would be violated if he were to be sent back to his country of origin. The autonomous region of Iraq was a safe place for him, and the only matter that delayed his departure was the difficulty faced by the authorities in devising a safe route by which he might return there. The Discretionary Leave APIs both state in terms that Discretionary Leave is not to be granted on the basis that there is, for the time being, no practical way of removing a person, e.g. an absence of route. In these circumstances Mr Khadir fell fairly and squarely within the language of para 16(2) of Schedule 2 to the 1971 Act. He was a person liable to be detained pending his removal. He thus qualified for temporary admission and no more.

Mr Robert Jay QC, who appeared for the Secretary of State, valiantly sought to identify a route by which the present respondents might be similarly caught by the provisions of para 16(1): he disavowed any intention to rely on para 16(2). He could only do so if each of them could properly be identified as “a person who may be required to submit to examination under paragraph 2” of the schedule. He accepted that the examination which had led up to the June 2003 refusal to grant leave to enter had long since ended. He relied instead on para 2(3) which provides that:

He will not, however, be a person who may be required to submit to further examination unless and until a notice in writing is given to him requiring him so to submit. This might occur, for instance, if there was some change in circumstances into which it was considered expedient to conduct a further examination. It would be very far-fetched, however, to regard everyone who has an entitlement to discretionary leave as being ipso facto a person who may be required to submit to further examination, even when no change of circumstances was in question. Such a person could hardly be detained pending his examination when no examination was in prospect.

In these circumstances the judge was right to hold that it was not open to the Secretary of State to determine, without obtaining the necessary authority from Parliament, that someone in the position of the respondents could be kept or placed on temporary admission. Parliament created that status (by which someone who has in fact entered this country is deemed not to have entered: see s 11 of the 1971 Act) for those persons identified in para 21(1) of the schedule. For the reasons we have given they do not include persons in the position of the respondents.

That the statutory scheme of immigration control postulated that someone who successfully maintained that their removal would constitute a violation of their ECHR rights should be entitled to leave to enter, for however limited a period, became apparent from the clear submissions addressed to the court by Mr Rabinder Singh QC, who appeared for the respondents. In short, the essence of his argument is that those who do not have the “right of abode” here must obtain “leave” in order to enter the country (see 1971 Act, s 3(1)). Asylum and human rights applicants (like everyone else who does not possess the right of abode) are subject to the same statutory controls on entry. This is reflected by the terms of the 2001 Order (see paragraph 22 above) which provides that both categories of applicant may be granted “leave to enter”, even if in the latter case all they may have established is that they cannot lawfully be removed without an infringement of their ECHR rights.

Mr. Singh pointed out that, where such applicants are refused leave to enter, they have a right of appeal. If their appeal succeeds, on asylum or human rights grounds, they are entitled to leave to enter and to remain here, in the latter case, until they can be safely returned without violation of their ECHR rights. This status cannot be taken away from them by the Secretary of State conferring on them a new status which does not in this manifestation form any part of the statutory scheme. We accept Mr. Singh’s submission.

Nothing in this judgment should be interpreted as meaning that it would not be open to Parliament to confer power on the Secretary of State to introduce a regime similar to the regime he sought to introduce through the August 2005 Discretionary Leave API (so long as the arbitrary elements of it are removed). If it is considered that a person (or a group of persons) has by his conduct disentitled himself to any discretionary leave at all, then it would be open to Parliament, if it thought fit, to create a new statutory category to accommodate him. The present twilight zone occupied by persons entitled to temporary admission was not designed for him. The only effect of the present judgment is that it was beyond the powers of the Secretary of State to introduce this new category of “persons temporarily admitted” of his own motion without Parliamentary sanction.

Because we have reached this clear conclusion, it is unnecessary to consider Mr. Jay’s submissions in any detail, because they all revolve around the legality of arrangements whereby the Secretary of State may enlarge the category of the “temporarily admitted” without Parliamentary sanction. A new API in January 2006, which conferred a status of temporary admission unless the Secretary of State considered that Discretionary Leave was appropriate, also suffered from the defect that reliance was placed on the same recourse to “temporary admission” for a purpose never prescribed by Parliament. The August 2005 API, as the Judge held, undoubtedly possessed many of the defects identified by Lord Bingham in his speech in Gillan. The draftsmen of any new API will need to take care to avoid these defects.

Our conclusion is supported by the fact that it is not easy to understand how the Secretary of State, having once granted discretionary leave, as he did in this case for a six-month period following the judge’s order, could then change the respondent’s status to one of “temporary admission” especially in the light of the provisions of s 3C of the 1971 Act. That section provides that a period of leave may be extended if the application for an extension is made before the current period of leave has expired. The period of extension would then continue until the application is decided (or withdrawn) and while any appeal against the decision is still pending.

For these reasons we dismiss this appeal. We commend the judge for an impeccable judgment. The history of this case through the criminal courts, the immigration appellate authority, and back into the civil courts has attracted a degree of opprobrium for those carrying out judicial functions. Judges and adjudicators have to apply the law as they find it, and not as they might wish it to be. In his judgment in the Criminal Division of the court in this case, (R v Safi (Ali Ahmed) [2003] EWCA Crim 1809 at [26]; [2004 1 Cr App R 157) Longmore LJ observed that

So far as the powers of the Home Secretary are concerned, the challenges created by the respondents’ presence in this country have been apparent ever since they landed here over six years ago. There has been ample time for the Home Secretary to obtain appropriate Parliamentary authority, if he wished to be clothed with the powers he gave to himself without parliamentary sanction in the August 2005 Asylum Policy Instructions.