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

Before the retrospective statutory amendment, an unlawful entrant could not remain on temporary admission where removal was no longer realistically pending within a tolerable period. The limits on detention pending removal also limited liability to detention, which was the condition for temporary admission.

However, Nationality, Immigration and Asylum Act 2002, section 67 required the temporary-admission provision to be construed as including a person who could not be detained solely because practical difficulties delayed removal. Section 67(3) applied that construction to pending litigation. Exceptional leave to remain was therefore not required where temporary admission remained an available statutory option.

The respondent, an Iraqi Kurd who had entered the United Kingdom unlawfully, was refused asylum and became the subject of removal directions. The Secretary of State was investigating a safe route to the Kurdish Autonomous Area but had not secured one. He refused the respondent exceptional leave to remain and instead treated him as temporarily admitted.

Crane J in the Administrative Court quashed that refusal. He held that removal was no longer pending, so the respondent could neither be detained nor temporarily admitted under Schedule 2 to the Immigration Act 1971. The Secretary of State appealed. The respondent cross-appealed, seeking a declaration and an order requiring exceptional leave to remain. The central issues were the meaning of detention and temporary admission pending removal, and the retrospective effect of section 67 of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed and cross-appeal dismissed. Kennedy, Chadwick and Mance LJJ agreed that the order quashing the refusal of exceptional leave to remain could not stand.

2. Kennedy and Chadwick LJJ held that Crane J’s conclusion accorded with the law as it stood when he decided the claim. Under the principles in Hardial Singh and Tan Te Lam, detention pending removal was unavailable once it became clear that removal could not be effected within a reasonable time. A person who could not lawfully be detained on that basis was not then liable to detention for paragraph 21(1) of Schedule 2 to the Immigration Act 1971, and so could not be temporarily admitted.

3. Mance LJ distinguished the period during which a person may remain potentially liable to detention from the shorter period for which detention may properly be exercised in an individual case. Nevertheless, on the sparse evidence and the absence of a realistic route to the Kurdish Autonomous Area, he agreed that by 3 May 2002 the respondent could no longer have been treated as temporarily admitted pending removal under the pre-amendment law.

4. Section 67 of the Nationality, Immigration and Asylum Act 2002 changed that result. Section 67(1) and (2)(b) deemed a person liable to detention for the purpose of temporary admission where practical difficulties impeded or delayed removal, while not itself authorising detention. Section 67(3) unequivocally required that construction to be treated as always having had effect. It applied on this appeal, irrespective of whether the appellate function was described as review or rehearing.

5. It followed that the respondent could lawfully be treated as temporarily admitted. Parliament had made that option available in precisely the circumstances of delayed practical arrangements for removal. The Secretary of State was not irrational or otherwise legally at fault in preferring it to exceptional leave, which should be reserved for cases not adequately dealt with under the statutory immigration scheme. Article 6 of the Convention did not prevent that conclusion because immigration-status litigation did not determine a civil right.

The court set aside the Administrative Court’s order, made no order for costs, and refused permission to appeal to the House of Lords.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed and the respondent’s cross-appeal dismissed: [2003] EWCA Civ 475.
• Administrative Court: Crane J, on 29 June 2002, quashed the refusal of exceptional leave to remain and ordered fresh consideration. That order was set aside.