R (Saadi) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD MUSTILL,LORD SLYNN OF HADLEY,LORD HUTTON,LORD SCOTT OF FOSCOTE
Judgment Date31 Oct 2002
Neutral Citation[2002] UKHL 41

[2002] UKHL 41

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Mustill

Lord Slynn of Hadley

Lord Hutton

Lord Scott of Foscote

Regina
and
Secretary of State for the Home Department Ex Partesaadi (FC)

And Others (FC)

(Appellants)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he gives, with which I agree, I too would dismiss this appeal.

LORD MUSTILL

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. I agree with it and for the reasons which he gives I too would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,

3

This appeal raises issues as to whether the four claimants were unlawfully detained after they came to this country seeking asylum. They are all Kurdish Iraqis who left the Kurdish Autonomous Region in northern Iraq. They claim for various reasons that they could not safely remain or return to Iraq because of the risks to them of persecution, respectively from the Patriotic Union of Kurdestan, from the Iraqi Government or from the Islamic Movement of Iraqi Kurdestan. They were all detained at the Oakington Reception Centre.

4

There are differences between their cases. Thus Dr Saadi flew into Heathrow and on three occasions between 30 December 2000 and 2 January 2001 was granted temporary admission on conditions as to reporting with which he complied before on 2 January 2001 he was sent to the Oakington Reception Centre. The other three claimants arrived at Dover concealed in the back of a lorry—Mr Maged on 6 December 2000 when he claimed asylum on arrival at Dover but he was detained as an illegal entrant and transferred to Oakington. Mr Osman arrived on 4 December 2000. He asked for asylum at the Immigration and Nationality Directorate in Croydon but was declared to be an illegal immigrant and sent to Oakington. Mr Mohammed also arrived at Dover concealed in a lorry on 4 December 2000 when he claimed asylum at a police station. He was directed to the Croydon Directorate where on 5 December 2000 he was determined to be an illegal entrant and sent to Oakington.

5

Subsequent to going to Oakington Dr Saadi on 8 January 2001 was refused asylum but was released on temporary admission on 9 January pending an appeal. His appeal was allowed by an adjudicator but that decision was reversed by the Immigration Appeal Tribunal and his case was sent for re-hearing. Mr Maged was refused asylum on 16 December 2000 but released on temporary admission pending an appeal. His appeal was successful and he was granted asylum. Mr Osman was refused asylum on 11 December 2000 but was released on temporary admission pending an appeal which is not yet determined. Mr Mohammed, having been refused asylum on 11 December 2000, was released on temporary admission on 13 December pending an appeal which was successful on 24 April 2001. Like Mr Maged he now has refugee status.

6

Dr Saadi was thus actually detained at Oakington from 2 to 9 January (7 days); Mr Maged from 6 December to 16 December (10 days); Mr Osman from 4 December to 12 December (8 days) and Mr Mohammed from 5 December to 13 December (8 days).

7

They all complained of the illegality of their detention at the Oakington Reception Centre. Collins J. held that the detention of all the appellants at Oakington was unlawful. The Court of Appeal unanimously reversed that decision: see [2002] 1 WLR 356.

8

The Immigration Act 1971 in Schedule 2 contains detailed administrative provisions as to the control of persons seeking to enter the United Kingdom. In particular by paragraph 2 of the Schedule, immigration officers may examine persons who have arrived there to determine inter alia whether they have leave to enter or whether they should be given or refused leave to enter. By paragraph 16 of the Schedule:

"(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."

9

By paragraph 18 of the Schedule, persons "may be detained under paragraph 16 above in such places as the Secretary of State may direct" and a person detained under paragraph 16 is deemed to be in legal custody" (paragraph 18 (4)). A person so detained may be released on bail by a chief immigration officer or an adjudicator (paragraph 22 (1A)) but only when 7 days have elapsed since the person's arrival in the United Kingdom. Temporary admission may be granted to persons liable to be detained without their being detained or on release from detention. By section 11 of the 1971 Act temporary admission does not constitute entry. By section 4 of the Immigration and Asylum Act 1999 the Secretary of State "may provide, or arrange for the provision of, facilities for the accommodation of persons", temporarily admitted under paragraph 21 of Schedule 2 to the 1971 Act or released on bail from detention under any provision of the Immigration Act.

10

The number of persons arriving in the United Kingdom and seeking asylum has grown considerably in recent years. Thus your Lordships were told that from July to September 1999 the average number of applications was 7,000 a month, a 60% increase on the previous year. The figure of arrivals from Iraq rose on average from c.90 per month in 1997 to c.150 per month in 1999 and 280 per month in the early part of 2000. This obviously placed considerable strain on the immigration services since it is apparent from past experience that not all those who claim asylum can justify the claim however understandable their desire to leave the conditions in which they live in their own states. The question on this appeal is whether one of the steps taken by the government to try to deal with the problem is lawful.

11

It is clear that the Home Office is entitled to adopt a policy in relation to the procedures to be followed, a policy which may be changed from time to time as long as it does not conflict with relevant principles of law. In July 1998 the Government adopted the broad criteria to be followed—"whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances:

"*…where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release;

*…initially, to clarify a person's identity and the basis of their claim; or

*…where removal is imminent"

(Government paper "Fairer, Faster And Firmer—A Modern Approach to Immigration And Asylum").

12

In a news release no. 059/00 of March 1999 the Home Office announced that:

"Up to 13,000 asylum seekers per year will have their cases decided in about seven days at a new fast-track facility opening on Monday, 20 March in Cambridgeshire."

It added that:

"the new reception centre at Oakington Barracks implements a key commitment in the Government's plans to make the asylum process firmer, fairer and faster".

The Immigration Minister, Mrs Barbara Roche said:

"Speeding up the asylum process is a major objective in our reform of the asylum system. People who come to the United Kingdom may be fleeing terrible persecution and it is important that their claims are dealt with swiftly. So that rather than being stuck in an administrative limbo they are able to get on with rebuilding their lives.

Oakington will enable us to deal quickly with the straightforward asylum claims. It is in everyone's interest that both genuine and unfounded asylum seekers are quickly identified. Genuine asylum seekers can be given the support they need to integrate into society. And those with unfounded claims can be sent home quickly thereby sending a strong signal to others thinking of trying to exploit our asylum system.

Applicants will be kept for a period of about seven days while their claim is considered. There will be access to legal advice on site to ensure that the process is both full and fast. If claims are certified as manifestly unfounded, the Immigration Appellate Authority will be aiming to deal with any appeal in about three weeks."

13

In the House of Commons the Minister gave a written answer on 16 March 2000 (Hansard Col. 263W) stating that if claims could not be decided in a period of about 7 days "the applicant will be granted temporary admission or, if necessary in line with existing criteria, moved to another place of detention".

14

Thus instead of the applicant being given 5 days to submit further representations after an initial substantive interview, the new arrangements provided that interview would "other than in very exceptional circumstances … take place on the third day at the centre". Since the 5 day period was now to run from the date that the application for asylum was made that would normally leave 2 days for the submission of representations. Legal advice on site at Oakington was to be provided by the Refugee Legal Centre and Immigration Advisory Service in connection with these procedures.

15

The Home Office made it clear in its Operational Enforcement Manual of 21.12.2000, para. 38.1 that:

"In all cases detention must be for the shortest possible time … It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted".

It repeated at para. 38.3 of the same document: "There is a presumption in favour of temporary admission or temporary release" and that the following inter alios are unsuitable for Oakington:

"*…any case which does not appear to be one in which a quick decision can be reached;

"*…any case which has complicating factors, or issues, which are unlikely to be resolved within...

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