Regina v Secretary of State for the Home Department Ex p Saadi (FC) and others (FC) (Appellants)

Immigration Act 1971, Schedule 2 permits detention while an asylum seeker is examined and a decision on entry is made. The power does not depend on a risk of absconding or proof that detention is strictly necessary. Its duration and exercise must nevertheless be reasonable and non-arbitrary.

For article 5(1)(f) of the European Convention on Human Rights, entry remains unauthorised until the state authorises it. Brief detention within a fast-track asylum process may therefore prevent unauthorised entry even where the applicant seeks asylum openly. Article 5(1)(f) imposes no least-restrictive-means test, but detention must comply with domestic law, protect against arbitrariness and remain proportionate in its selection, purpose, duration and conditions.

Four Kurdish Iraqis sought asylum after arriving in the United Kingdom. They were detained at Oakington Reception Centre for between seven and ten days because their claims appeared suitable for rapid determination. The Secretary of State did not contend that they presented a risk of absconding.

Collins J held that all four detentions were unlawful. The Court of Appeal unanimously reversed that decision in [2002] 1 WLR 356. The appellants then appealed to the House of Lords.

The central questions were whether Schedule 2 to the Immigration Act 1971 permitted detention for the efficient examination of asylum claims without proof of strict necessity, and whether such detention was compatible with article 5(1)(f) of the European Convention on Human Rights. The House also considered whether the Oakington policy was arbitrary or disproportionate and whether inaccurate notices of the reasons for detention affected legality.

1. Appeal dismissed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Nicholls of Birkenhead, Lord Mustill, Lord Hutton and Lord Scott of Foscote expressly agreed with his reasons and the dismissal of the appeal.

2. Lord Slynn held that paragraph 16 of Schedule 2 to the Immigration Act 1971 authorises detention until examination has concluded and a decision on leave to enter has been made. The Secretary of State need not show that examination would otherwise be impossible, that the applicant might abscond, or that temporary admission was inappropriate. Indeed, the statutory power to grant temporary admission presupposes an existing power to detain.

3. Lord Slynn further held that this statutory power is implicitly constrained by reasonableness. The period of detention must be reasonable in all the circumstances, and the immigration officer must act reasonably when arranging examination and decision-making. The analogous reasonable-duration principle in R v Government of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 supported that conclusion.

4. Lord Slynn held that, for the first limb of article 5(1)(f), entry remains unauthorised until the state authorises it. Detention while an asylum application is examined may therefore prevent unauthorised entry. It is unnecessary to prove that the applicant sought to evade immigration control or was likely to abscond.

5. Applying Chahal v United Kingdom (1996) 23 EHRR 413, Lord Slynn held that article 5(1)(f) contains no separate requirement that detention be necessary in the sense that no less restrictive procedure would suffice. Its wording contrasts with article 5(1)(c), which expressly refers to necessity. Amuur v France (1996) 22 EHRR 533 concerned the degree or intensity distinguishing restriction from deprivation of liberty and did not establish the proposed necessity test.

6. Lord Slynn nevertheless held that detention must comply with domestic law and protect the individual from arbitrariness. The selection of claims suitable for rapid decision, the legitimate objective of speedy determination, the short period of detention, the reasonable physical conditions and the need for a structured process established that the Oakington policy was proportionate and reasonable. The House left open whether the same detention also fell within the second limb of article 5(1)(f) as action taken with a view to removal.

7. Lord Slynn held that the inaccurate forms served on the appellants were regrettable but did not affect the legality of their otherwise lawful detention. No distinction arose between Dr Saadi and the other appellants based on their different means of arrival.

1. House of Lords — In Regina v Secretary of State for the Home Department Ex p Saadi (FC) and others (FC) (Appellants) [2002] UKHL 41, the House unanimously dismissed the appeal and upheld the Court of Appeal's result.
2. Court of Appeal — In [2002] 1 WLR 356, the court unanimously reversed Collins J's decision and held the detention lawful.
3. High Court — Collins J held that the detention of all four appellants at Oakington was unlawful. The speech refers to the first-instance ruling as [2001] 1 WLR 356.