Regina v. Secretary of State for the Home Department (Respondent) ex parte Khadir (FC) (Appellant)

Under Schedule 2 to the Immigration Act 1971, a person remains “liable to detention” while the Secretary of State intends to remove that person and removal retains some prospect of achievement. “Pending” removal means “until” removal; it does not require removal to be imminent.

The lawfulness of exercising the detention power is distinct from the power’s continued existence. Delay may make actual detention unreasonable under the Hardial Singh principles without preventing temporary admission in lieu of detention. The power ceases when removal has become unachievable. The hardship of temporary admission cannot alter the statutory construction, although it may bear on the separate, broad discretion to grant exceptional leave to enter.

The appellant was an Iraqi Kurd whose asylum claim had failed because he could return safely to the Kurdish Autonomous Area of northern Iraq. The Secretary of State could not, however, find a safe means of returning him. He remained temporarily admitted under Schedule 2 to the Immigration Act 1971 and was refused exceptional leave to enter.

Crane J held that prolonged inability to arrange removal had ended the power to continue temporary admission. He also held that the refusal of exceptional leave was inadequately reasoned and ordered reconsideration. The Court of Appeal allowed the Secretary of State’s appeal and dismissed the appellant’s cross-appeal. It relied on the retrospective language of section 67 of the Nationality Immigration and Asylum Act 2002.

The central issues were whether the original legislation had already authorised continued temporary admission during a prolonged delay in removal, whether the refusal of exceptional leave was lawful, and, if necessary, whether section 67 could retrospectively deprive the appellant of his first-instance judgment.

The appeal was dismissed unanimously. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Bingham, Lord Hope and Lord Rodger agreed with it completely, and Baroness Hale also agreed that the appeal should be dismissed for Lord Brown’s reasons.

1. Per Lord Brown, “pending” in paragraph 16 of Schedule 2 to the Immigration Act 1971 means “until”. It is used as a preposition and does not require removal itself to be pending or impending. While the Secretary of State remains intent on removal and there is some prospect of achieving it, the statutory power to detain continues to exist. The person therefore remains liable to detention and may be temporarily admitted under paragraph 21 instead of being detained.
2. The existence of the detention power is distinct from its lawful exercise. The principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, and the cases applying them, control whether actual detention may properly continue. They require detention to serve removal, to last no longer than reasonably necessary and to be administered with reasonable expedition. Unreasonable delay may exhaust the permissible exercise of detention without extinguishing the underlying statutory power.
3. Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 was distinguishable. There, repatriation had become impossible and removal was no longer achievable. Once every prospect of removal has gone, detention can no longer be described as pending removal and the power itself ceases. Lord Brown regarded the broader wording suggesting that removal itself had to be “pending” as a slip.
4. The harshness of the temporary-admission regime could not alter the proper construction of paragraphs 16 and 21. Parliament had sanctioned that regime. Its disadvantages could bear only on the Secretary of State’s separate discretion to grant exceptional leave to enter.
5. The challenge to the refusal of exceptional leave also failed. Per Lord Brown, exceptional leave was inherently exceptional, and the Secretary of State’s discretion was very wide. An altogether stronger case was required to impugn the refusal where Parliament had expressly provided temporary admission as the ordinary alternative to detention.
6. Section 67 of the Nationality Immigration and Asylum Act 2002 merely made explicit what had always been the law and was unnecessary to the decision. The House therefore left its retrospective effect undecided and did not endorse the Court of Appeal’s reasoning on that issue. Baroness Hale added an analogy with sections 17 and 20 of the Mental Health Act 1983: legal liability to detention may remain although actual detention would not presently be appropriate.

Crane J’s order remained set aside, although for reasons different from those adopted by the Court of Appeal.

1. House of Lords: The appeal was dismissed unanimously. Crane J’s order remained set aside, but the House relied on the original meaning of the Immigration Act 1971 rather than deciding the retrospective effect of section 67 of the Nationality Immigration and Asylum Act 2002.
2. Court of Appeal: The Secretary of State’s appeal was allowed and the appellant’s cross-appeal was dismissed. The court held that section 67 operated retrospectively to validate the continued temporary admission.
3. High Court: Crane J held that temporary admission had ceased to be lawful and that the refusal of exceptional leave was inadequately reasoned. He ordered immediate reconsideration but stayed that order pending appeal.