R (S) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 04 August 2006 |
| Neutral Citation | [2006] EWCA Civ 1157 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 August 2006 |
| Docket Number | Case No: C4/2006/1210 |
[2006] EWCA Civ 1157
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Mr Justice Sullivan
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of The Rolls
Lord Justice Brooke
Vice-President of The Court of Appeal (Civil Division) and
Lord Justice Neuberger
Case No: C4/2006/1210
Robert Jay QC (instructed by the Treasury Solicitor) for the Appellant
Rabinder Singh QC and Duran Seddon (instructed by Hammersmith & Fulham Community Law Centre) for the Respondents
This is the judgment of the court.
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
i) allowed the respondents' claim for judicial review (para 1) ;
ii) 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) ;
iii) 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) ;
iv) 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) ;
v) directed the Secretary of State to pay the costs of the respondents on an indemnity basis (para 6) ; and
vi) 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:
"2.6 … unless Ministers decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted, the individual will be kept or placed on temporary admission or temporary release…"
…
"However Ministers may decide that it is inappropriate to grant any leave to a person falling within the excluded category in the light of all the circumstances of the case. Where it is decided that leave should not be granted the individual will be kept or placed on temporary admission or temporary release."
…
"… and may affect whether the person qualifies for Discretionary Leave at all…"
…
"… unless Ministers decide, in view of all the circumstances of the case, that it is inappropriate to grant any leave and instead place or keep the person on temporary admission or temporary release."
…
"5.1 … (unless Ministers decide in the light of all the circumstances of the case that it is inappropriate to grant any leave and instead keep or place the person on temporary release or temporary admission) ."
…
"6.3 … Even if removal of a person falling into an exclusion category is not considered possible within six months, Ministers may decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted the individual will be placed on temporary release."
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...
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