R (Khadir) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 16 June 2005 |
| Neutral Citation | [2005] UKHL 39 |
| Court | House of Lords |
| Date | 16 June 2005 |
[2005] UKHL 39
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Nicholas Blake QC
Mark Henderson
(instructed by Refugee Legal Centre)
Respondents:
Monica Carrs-Frisk QC
Robin Tam
(instructed by Treasury Solicitor)
My Lords,
I have had the opportunity to read in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in complete agreement with it and would, forthe reasons which he gives, dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives, with which I agree, Iwould dismiss the appeal.
My Lords,
I have had the advantage of reading the speech which my noble and learned friend, Lord Brown of Eaton-under-Heywood, is to deliver. I am in agreement with it and, forthe reasons he gives, I too would dismiss the appeal.
My Lords,
I agree that this appeal should be dismissed for the reasons given by my noble and learned friend, Lord Brown of Eaton-under-Heywood. A person is 'liable to be detained' within the meaning of Schedule 2 to the Immigration Act 1971 where there is power to detain him even if it would not be a proper exercise ofthat power actually to do so. There is some parallel here with theexpression 'liable to be detained' in, for example, sections 17 and 20 of the Mental Health Act 1983. A person who is liable to be detained in a hospital by virtue of an application or order under that Act may either be actually detained or given leave of absence. While on leave ofabsence it may well be that the patient's disorder is not such that heneeds to be detained in hospital. But he remains liable to be detained, and may be recalled to hospital, unless and until the application ororder authorising his detention lapses or he is discharged: see B v Barking etc Healthcare NHS Trust [1999] 1 FLR 106, CA. Under Schedule 2 to the Immigration Act 1971, there is power to detain 'pending removal'. 'Pending' in this contextmeans no more than 'until'. There may come a time when the prospects ofthe person ever being able safely to return, whether voluntarily orcompulsorily, are so remote that it would irrational to deny him thestatus which would enable him to make a proper contribution to thecommunity here, but that is another question. It certainly did not arise on the facts of this case.
My Lords,
The appellant is a 31 year old Iraqi Kurd who on 27 November 2000 arrived clandestinely in this country in the back of a lorry and immediately claimed asylum. His claim was refused by the Secretary of State on 29 January 2001 and his appeal against refusal was dismissed by the adjudicator on 9 August 2001: theappellant came from the Kurdish Autonomous Area ("KAA") of northern Iraq and in that area would have no well-founded fear of persecution. Whilst, however, he would be safe in the KAA, the Secretary of State has yet to find a safe means of enforcing his return there and this it is which gives rise to the present proceedings. In a word the appellantsays that he must be granted leave to enter.
On arrival in November 2000 the appellant was temporarily admitted to the UK pursuant to paragraph 21 of Schedule 2 to the Immigration Act 1971 ("the 1971 Act"). By section 11 of that Act someone temporarily admitted under Schedule 2 is deemednot to have entered the UK. On 5 February 2001, following the refusal of asylum, the appellant was given notice of the Secretary of State's decision to issue removal directions under paragraphs 9 and 10 of Schedule 2, to return him to Iraq as an illegal entrant. It was thatnotice which triggered the appellant's right of appeal to anadjudicator. Following the adjudicator's dismissal of his appeal, the appellant through solicitors pointed to the long-term failure to find asafe means of return to the KAA and urged the Secretary of State togrant him exceptional leave to enter ("ELE"). That application was finally refused by the Secretary of State on 3 May 2002. Instead, the appellant's temporary admission has been periodically extended.
The status of ELE has veryconsiderable advantages over that of temporary admission. The benefit regime is altogether more favourable: those on temporary admissionobtain only benefits in kind, never cash. Those with leave willordinarily be permitted to work; those temporarily admitted will not. Those with leave can live where they want; those temporarily admittedonly where they are directed to live. There are other importantdifferences too. Because of these disadvantages the appellant sought to challenge the Secretary of State's refusal of ELE. He did so on two grounds. First and principally he contended that because of the continuing inability to find a safe route for his return to the KAA, there was no longer power to authorise his temporary admission under Schedule 2 so that the Secretary of State had no alternative but togrant him ELE. Alternatively he contended that, even assuming that the Secretary of State had a discretion in the matter, he had not exercisedit lawfully.
On 29 July 2002, Crane Jconcluded, first, that, as at 3 May 2002, "temporary admission was nolonger lawful", and secondly that, even if he was wrong about that, therefusal letter of 3 May 2002 contained "wholly inadequate reasoning." He ordered "further consideration forth with" of the application for ELE albeit he then stayed the order pending determination of the Secretaryof State's appeal.
Following Crane J's decision, Parliament enacted the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") which by section 67 (a section which came into force on 7 November 2002 but was to be "treated as always having had effect") put beyond doubt that, whatever might previously have been the true ambit of the paragraph 21 power to grant temporary admission, it was now to be construed as extending to any case like the appellant's.
The Secretary of State's appeal (and Mr Khadir's cross appeal, contending that the judge, having found that temporary admission was no longer lawful, should have ordered the Secretary of State to grant, rather than merely reconsider thegrant of, ELE) was heard by the Court of Appeal (Kennedy, Chadwick and Mance LJJ) on 15 January 2003. Although initially section 67 of the 2002 Act formed no part of the Secretary of State's argument, the Courtof Appeal of its own motion invited submissions upon its application and in the event found it decisive. On 3 April 2003, the Secretary of State's appeal was allowed and Mr Khadir's cross appeal dismissed. Each member of the court concluded that Crane J had been right to hold, on the basis of the legislation then in force, that by 3 May 2002 there was no longer power to continue the appellant's temporary admission. But each then decided that section 67 of the 2002 Act operated retrospectively to deem there to have been such power and accordingly to deny the appellant the benefit of the first instance judgment in his favour.
The appellant now appeals to this House against the Court of Appeal's decision that section 67 was properly to be construed and applied as depriving him of the benefit of the judgment he had already obtained. The Secretary of State for his part contends that Crane J's decision was in any event wrong (as toowere the judgments of the Court of Appeal finding it to have beencorrect on the law as it then stood) so that section 67 was, in fact, unnecessary. That section merely made explicit what had always been (and, indeed, until this very case had always been understood to be) the true effect of the pre-existing legislation, namely that temporaryadmission could properly be continued on a long-term basis in cases like the present.
Logically, of course, the correctness or otherwise of Crane J's decision falls for consideration first. If the Secretary of State is right on that point he does not need to pray in aid section 67 of the 2002 Act and it becomes unnecessary to decide whether the Court of Appeal was right to hold that it applies in this particular case. I shall therefore consider first the effect of the legislation as it stood before Crane J. I shall, however, set out in addition the terms of section 67 which conveniently highlight the central point at issue. Section 67 also underlines an unusual feature of the appeal, that your Lordships' decision on the first point can affect one person and one person only: this appellant. Even if he were right on the first point (and right too in contending that the Court of Appeal erred in applying section 67 retrospectively to his case), such a decision would affect no one else. The position with regard to all others similarly placed is now plain beyond argument: they can all be granted temporary admission on a long-term basis.
With those few introductory paragraphs let me turn next to the statutory framework as it was at the time of the hearing before Crane J. In this I am assisted by the summary contained in paragraph 12 of Kennedy LJ's judgment below although my summary will be shorter still.
A person who is not a British subject requires leave to enter or remain. But leave may be given for a limited period and may be made subject to conditions. Section 4(2) of the 1971 Act provides that the provisions of Schedule 2 shall haveeffect with regard to "(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom,...
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