Khadir, R (on the application of) v. Secretary of State for the Home Department

The House of Lords considered whether a person may be "temporarily admitted" under paragraph 21 of Schedule 2 to the Immigration Act 1971 where practical difficulties make removal delayed for a long period and whether section 67 of the Nationality Immigration and Asylum Act 2002 could be applied retrospectively to affect the appellant.

The court held that "liable to be detained" in paragraph 16(2) means there is a continuing power to detain "until" removal is effected (ie "pending" in the sense of "until") and that the Hardial Singh line of authorities governs the exercise of the detention power but does not negate its existence. Accordingly a person may remain liable to detention and so may be temporarily admitted under paragraph 21 even where removal is delayed; retrospective section 67 was unnecessary to achieve that result. The appellant's alternative challenge to the Secretary of State's refusal of exceptional leave to enter was rejected as insufficiently strong on the facts.

Background and facts:

• The appellant, an Iraqi Kurd, arrived clandestinely in the United Kingdom in November 2000 and claimed asylum. His claim and appeal were refused. He had been given temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 rather than leave to enter.
• Because the Secretary of State had been unable to find a safe method to enforce his return to the Kurdish Autonomous Area, the appellant sought exceptional leave to enter (ELE). The Secretary of State refused ELE on 3 May 2002 and periodically extended the appellant's temporary admission instead.

Procedural history:

• Crane J (29 July 2002) held that by 3 May 2002 temporary admission was no longer lawful and that the refusal of ELE contained inadequate reasoning; he ordered reconsideration of the ELE application but stayed his order pending appeal.
• The Court of Appeal (3 April 2003) allowed the Secretary of State's appeal, concluding that Parliament's section 67 of the 2002 Act operated retrospectively to deem there to have been power to continue temporary admission.
• The appellant appealed to the House of Lords.

Nature of the claim and issues:

• (i) The appellant sought to challenge the Secretary of State's refusal of ELE and contended that, because safe removal was not practicable, the Secretary of State no longer had power to authorise temporary admission under paragraph 21 and therefore should grant ELE.
• (ii) Alternatively he contended that the Secretary of State had exercised the discretion to refuse ELE unlawfully by inadequate reasoning.

Court's reasoning and decision:

• The principal legal issue was the meaning of being "liable to detention" under paragraph 16(2) of Schedule 2 and whether the "pending" requirement for detention requires a realistic prospect of removal within a limited period so as to extinguish liability where removal is long delayed.
• The House of Lords held that "pending" in paragraph 16 means "until"; the line of cases commencing with R v Governor of Durham Prison, Ex p Hardial Singh governs the exercise of the detention power (ie it may become unlawful to continue detention in the face of unreasonable delay) but does not abolish the underlying power to detain where there remains an intention to remove and some prospect of doing so. Tan Te Lam was distinguishable because there removal had become impossible.
• Because liability to detention continues, paragraph 21 remains available to authorise temporary admission. Section 67 of the 2002 Act therefore was unnecessary to achieve what it enacted, and the House did not need to decide whether it operated retrospectively in the appellant's favour. The appellant's procedural complaint about ELE refusal was not strong enough to displace the Secretary of State's broad discretion.

Wider context:

• The Lords noted the harshness of long-term temporary admission but observed that Parliament had sanctioned such a regime and that ELE is by its nature exceptional.

Appeal dismissed. The House held that a person remains "liable to be detained" under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 so long as removal is intended and there is some prospect of effecting it ("pending" meaning "until"); the Hardial Singh line of authorities governs the exercise, not the existence, of the detention power. Accordingly temporary admission under paragraph 21 could continue and section 67 of the 2002 Act was unnecessary to validate that position. The Secretary of State's refusal of exceptional leave to enter was not shown to be unlawfully made on these facts.

Trial judge (Crane J) gave judgment on 29 July 2002 finding temporary admission unlawful and ordering reconsideration of the ELE decision (order stayed). The Court of Appeal (Kennedy, Chadwick and Mance LJJ) allowed the Secretary of State's appeal on 3 April 2003, applying section 67 of the Nationality Immigration and Asylum Act 2002. The appellant then appealed to the House of Lords which delivered judgment on 16 June 2005 ([2005] UKHL 39).