R (MS and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Toulson,Lord Justice Laws |
| Judgment Date | 04 December 2009 |
| Neutral Citation | [2009] EWCA Civ 1310 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 2009 |
| Docket Number | Case Nos. C4/2009/0772, C4/2009/0773 |
[2009] EWCA Civ 1310
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, THE ADMINISTRATIVE COURT
Mr Justice Cranston
Before: Lord Justice Laws
Lord Justice Sedley
and
Lord Justice Toulson
Case Nos. C4/2009/0772, C4/2009/0773
C4/2009/0774
Mr Michael Supperstone QC, Mr Danny Bazini and Ms Grace Brown (instructed by Ms Sheona York, Immigration Advisory Service) for the Appellants
Mr Jason Beer (instructed by Treasury Solicitors) for the Respondent
Hearing dates: Thursday 5 November 2009
Lord Justice Sedley:
These three cases raise, albeit with factual differences which may in some instances be critical, a legal question which affects a substantial number of individuals. Some of these have applications or appeals awaiting and likely to be dependent on the outcome of those now before the court, permission to appeal having been granted by the trial judge.
The issue arises and is important because it concerns the grant of temporary admission to people who have no affirmative right to remain in this country but cannot for particular reasons be removed. Such people do not have to be detained, but they have to exist in a half-world (Cranston J called it limbo, but theologians have recently decided that there is no such place) in which they have £5 a day to live on, cannot take work, must live where they are required to, have access only to primary healthcare, can obtain no social security benefits or social services assistance and can study only in institutions that require no payment. In these respects, which are determined by law and are not simply discretionary conditions imposed by the Home Office, they may be no worse off than asylum-seekers (which all three of the present appellants initially were) but are markedly worse off than if they had formal leave to remain. Their case is that they are entitled to the latter.
Temporary admission is a term of statutory art created by the combined effect of paragraphs 16 and 21 of Sch 2 to the Immigration Act 1971:
16 (1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
21(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or released from detention; but this shall not prejudice a later exercise of the power to detain him.
(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.
This provision is glossed (it will become apparent why I use that word) by s.67 of the Nationality, Immigration and Asylum Act 2002:
Construction of reference to person liable to detention
(1) This section applies to the construction of a provision which—
(a) does not confer power to detain a person, but
(b) refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.
(2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that—
(a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,
(b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or
(c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.
(3) This section shall be treated as always having had effect.
By virtue of s.11 of the Immigration Act 1971, persons liable to detention or temporarily admitted in lieu of detention are deemed not to have entered the United Kingdom. The section as now amended sets out the various sources of the liability to be detained:
(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 or by Part III of the Immigration and Asylum Act 1999or section 62 of the Nationality, Immigration and Asylum Act 2002 or by section 68 of the Nationality, Immigration and Asylum Act 2002.
……………..
(5) A person who enters the United Kingdom lawfully by virtue of section 8(1) above, and seeks to remain beyond the time limited by section 8(1), shall be treated for purposes of this Act as seeking to enter the United Kingdom.
Cranston J, in a characteristically full and careful judgment, [2009] EWHC 1044 (Admin), held, in a passage which is now accepted as correct:
39. …..In my judgment, the power to grant temporary admission contained in paragraph 21 of Schedule 2 of the 1971 Act is to be interpreted by reference to section 67 alone. Paragraph 21 does not itself confer a power to detain but refers to a person “liable to detention”. Thus section 67 applies. The relevant issue is simply whether there are practical difficulties impeding or delaying the making of arrangements for removal from the United Kingdom.…..
The question for Cranston J, and now for this court, is what “practical difficulties” mean in law and whether the obstacles to removal in any of the present three cases fall within that meaning.
Although temporary admission is, as I have said, a term of legal art, “practical difficulties” is at first sight an ordinary English phrase. Applied, as it was without doubt intended to be applied, to cases in which a failed asylum-seeker is deliberately obstructing Home Office efforts to secure travel documents that would allow him to be returned to his country of origin, it fits unproblematically.
But its meaning is by no means obvious when you try to apply it to the kind of facts we are faced with here. They are fully set out by Cranston J at §3–29, but in brief they are these:
(i) AR is a Palestinian from the West Bank. Having failed in his claim for asylum he was given temporary admission in March 2004. Since then he has obtained a copy of his birth certificate, which includes the ID number that will have been on the identity card issued to him at birth. But he has been unable to obtain a travel document from the Palestinian General Delegation in London because these can only be issued in the West Bank or Gaza. For this, according to the Delegation, he needs either a relative or an agent with a power of attorney to go to the Ministry of the Interior in Ramallah and get a West Bank identity card and a travel document issued in his name. But the expert evidence is that even with a relative to make the application the chance of success is only about 10%, and that otherwise it is zero.
(ii) FW was born in Ethiopia of an Eritrean father, long settled in Ethiopia, and an Ethiopian mother. The adjudicator who dismissed her asylum and human rights claims accepted that she had never lived in Eritrea and had no known relatives there. Because of the recent history of annexation and secession, neither state is keen on accepting as its nationals persons who have ancestral links with the other state. But both, at least according to their embassies or consulates, will recognise a person as one of their nationals if one of that person's parents was one of their nationals. This means in theory that FW could obtain travel documents for return to either state.
In practice, Eritrea requires three Eritrean witnesses (of what is not clear), although it has now told the Home Office that it will interview any applicant needing documentation for removal. But Eritrea is in no true sense FW's country of origin: Ethiopia (for which fresh directions would have to be given) is. The Ethiopian embassy, however, has interviewed FW and has refused her a travel document on the ground that she is Eritrean. This appears to be contrary to the accommodation reached in 2003–4 for not treating Ethiopians of Eritrean descent as stateless; but it corresponds with the understanding of the US Department of Homeland Security that Ethiopia will only issue travel documents to people who prove, among other things, that both their parents were born in that country (which FW's father was not).
Cranston J at §23, however, cites a letter sent in February 2009 by the head of legal and consular affairs at the Ethiopian embassy, which says that “a...
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