Secretary of State for the Home Department v. The Queen of the application of Khadir

The Court of Appeal allowed the Secretary of State's appeal against Crane J's order quashing the Secretary of State's refusal of exceptional leave to remain. The central legal issues concerned the interaction between the detention power "pending removal" under Schedule 2 to the Immigration Act 1971 (in particular paragraph 16(2)) and the power to grant temporary admission under paragraph 21(1), and whether an individual in practice irremovable must be granted exceptional leave to remain. The court held that Parliament's subsequent enactment of section 67 of the Nationality, Immigration and Asylum Act 2002 must be treated as always having had effect; that provision expands the class of persons to be treated as "liable to detention" for the purposes of paragraph 21(1) where the only reason they cannot be detained is practical difficulties impeding removal; and that, on that basis, the Secretary of State was entitled to treat the respondent as temporarily admitted rather than being obliged to grant exceptional leave to remain.

The court accepted that Crane J's reasoning would have been correct under the law as it stood when he decided the case, and that relevant authorities (including Hardial Singh and Tan Te Lam) limit detention "pending removal" where removal is not practicable within a reasonable time; but, because section 67(3) is to be treated as always having had effect, those implications for paragraph 21(1) were displaced and Crane J's order could not stand. The cross-appeal seeking a positive order granting exceptional leave was dismissed.

This is an appeal from Crane J sitting in the Administrative Court. Crane J had quashed the Secretary of State's decision of 3 May 2002 refusing to grant the respondent exceptional leave to remain and ordered further consideration forthwith. The respondent is an Iraqi Kurd who entered the United Kingdom clandestinely, was refused asylum and was served with removal directions. The respondent contended that, because there was in practice no realistic prospect of enforced return to the Kurdish area of northern Iraq within a reasonable period, his removal was no longer "pending" and he could not be lawfully detained nor validly be kept on temporary admission; in those circumstances the Secretary of State should have granted exceptional leave to remain.

The issues considered by the court included:

• whether the statutory scheme under the Immigration Act 1971 (Schedule 2, paras. 8, 9, 10, 16 and 21) permits a person to be kept on temporary admission when practical difficulties make removal impracticable for a prolonged period;
• the effect of the common law limitations on detention pending removal as expressed in Hardial Singh and applied in Tan Te Lam and later cases;
• whether Crane J was correct as a matter of law and fact to quash the Secretary of State's decision and to order reconsideration or positive relief;
• whether section 67 of the Nationality, Immigration and Asylum Act 2002, and in particular its retrospective provision in subsection (3), applies to the appeal and changes the legal position.

The court reviewed the statutory framework under the Immigration Act 1971 and relevant authorities on detention "pending removal". Crane J had concluded that by February 2002 removal was no longer "pending" and temporary admission was therefore no longer available; he also found delay and inadequate reasoning in the Secretary of State's decision of 3 May 2002 and ordered reconsideration. The Court of Appeal accepted that Crane J's conclusions were correct as the law stood when he decided the case, but Parliament had enacted section 67(1)-(3) of the 2002 Act which requires that references to a person "liable to detention" include persons only prevented from detention by practical difficulties impeding arrangements for removal, and that this section "shall be treated as always having had effect".

The court held that, because of section 67(3), the respondent must be treated as a person who may be temporarily admitted under paragraph 21(1) despite the practical difficulties. That displaced the judge's principal basis for quashing the decision. The court further held that, in consequence, the Secretary of State was not obliged to give further consideration to grant exceptional leave to remain and that the Judge's orders could not stand. The appeal was allowed and the cross-appeal dismissed.

The court noted that subsection (3)'s retrospective effect is unusual but not unprecedented and that standard presumptions against retrospectivity are displaced by clear wording. The court also dealt with submissions about Article 6 and access to court, concluding that the immigration decisions in question did not engage Article 6(1) as the determination of civil rights under the Convention.

Appeal allowed and cross-appeal dismissed. The Court held that Crane J's decision would have been correct under the law as it stood when he decided the case, but section 67 of the Nationality, Immigration and Asylum Act 2002 must be treated as always having had effect. Section 67 expands the meaning of a person "liable to detention" for paragraph 21(1) of Schedule 2 to the Immigration Act 1971 to include those who cannot be detained only because practical difficulties impede arrangements for removal; therefore the Secretary of State was entitled to treat the respondent as temporarily admitted and was not obliged to grant exceptional leave to remain or to reconsider the May 2002 decision.

Appeal from Mr Justice Crane (Administrative Court). Crane J (29 June 2002) quashed the Secretary of State's decision of 3 May 2002 and ordered further consideration; limited permission to appeal was granted and extended by the Court of Appeal. The present decision is [2003] EWCA Civ 475 (this appeal).