S & Ors v Secretary of State for the Home Department

The Secretary of State cannot use executive policy to enlarge the statutory category of persons who may be kept on temporary admission. A person whose successful human rights appeal establishes that removal would violate article 3 is entitled to leave until removal can occur lawfully. The Secretary of State cannot substitute a non-statutory immigration status for that leave.

Temporary admission under Schedule 2 to the Immigration Act 1971 is available only to persons falling within the categories defined by Parliament. A person cannot be treated as awaiting further examination merely because an examination might theoretically be required in the future. Any wider regime requires parliamentary authority.

The respondents were Afghan nationals who had hijacked an aircraft and claimed asylum after arriving in the United Kingdom. Although excluded from refugee protection because of the serious non-political crime exclusion, they succeeded before immigration adjudicators in establishing that return to Afghanistan would expose them to treatment contrary to article 3 of the European Convention on Human Rights.

The Secretary of State declined to grant discretionary leave and sought to keep them on temporary admission under a revised policy. Sullivan J allowed their judicial review claim, quashed that decision, declared the relevant policy passages unlawful and ordered a six-month grant of discretionary leave: [2006] EWHC 1111 (Admin).

The Secretary of State appealed only against the declaration of unlawfulness. The central question was whether policy could lawfully extend temporary admission to people who did not fall within the categories prescribed by the Immigration Act 1971.

1. The appeal was dismissed. Temporary admission is a statutory status available only to a person who falls within Schedule 2 to the Immigration Act 1971. The Secretary of State could not enlarge that category by an Asylum Policy Instruction. The August 2005 policy was therefore unlawful insofar as it purported to permit persons in the respondents’ position to be kept or placed on temporary admission.

2. Paragraph 16(1) of Schedule 2 did not apply. The examination which preceded the refusal of leave in 2003 had ended. Under paragraph 2(3), a person becomes liable to submit to further examination when given a written requirement to do so. A theoretical possibility of further examination, without any changed circumstances or examination in prospect, did not make the respondents liable to detention pending examination.

3. R (Khadir) v Secretary of State for the Home Department [2006] UKHL 39 was materially different. That case concerned a person liable to removal to a safe destination, whose removal was delayed by practical difficulty. He remained liable to detention pending removal and could therefore be temporarily admitted. The respondents, by contrast, had an unchallenged determination that removal would violate article 3 and did not fall within paragraph 16(2).

4. The statutory scheme contemplated that a person who successfully established that removal would violate Convention rights would receive leave to enter and remain until safe return became possible. The Secretary of State could not remove that status by conferring a different status which Parliament had not created for such a case.

5. Parliament could create a new statutory category for persons whose conduct was thought to disentitle them to discretionary leave, provided that arbitrary elements were removed. The executive could not create that category without parliamentary sanction. The policy also exhibited defects of arbitrariness of the kind identified in R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12.

6. The conclusion was reinforced by section 3C of the Immigration Act 1971, under which a timely application to extend existing leave continues that leave while the application and any appeal remain pending. Sullivan J’s declaration consequently remained in force.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The declaration that the challenged passages of the discretionary-leave policy were unlawful was upheld: [2006] EWCA Civ 1157.

2. Administrative Court: Sullivan J allowed the respondents’ judicial review claim, quashed the decision to withhold discretionary leave, declared the delay unlawful, declared the challenged policy passages unlawful and ordered the grant of six months’ discretionary leave: [2006] EWHC 1111 (Admin).