S & Ors, R (on the application of) v Secretary of State for the Home Department

Once an immigration appeal has been allowed and the decision has not been successfully challenged, the Secretary of State must give effect to it within a reasonable time. Temporary admission is a supplementary measure available while a lawful decision on leave, examination or removal remains genuinely pending. It cannot be used as an open-ended substitute for deciding whether to grant or refuse leave.

A public authority must not deliberately delay implementation of an adjudicator’s decision in order to introduce a policy permitting a different outcome. Such conduct may constitute conspicuous unfairness and an abuse of power. A policy allowing Ministers, without defined criteria, to depart from the normal grant of leave is not sufficiently foreseeable or protective against arbitrary interference with Convention rights.

The claimants, Afghan nationals, had hijacked an aircraft to escape the Taliban regime and claimed asylum on arrival in the United Kingdom. Their criminal convictions were quashed by the Court of Appeal. Their appeals against refusal of asylum were dismissed under Article 1F(b) of the Refugee Convention, but their appeals under Article 3 of the European Convention on Human Rights were allowed because removal would expose them to a real risk of ill-treatment and there was insufficient protection in Afghanistan.

The Secretary of State did not seek statutory review. Under the applicable policies, the claimants expected grants of Discretionary Leave, but remained on temporary admission for nearly 17 months. A revised policy was then used to decide that leave was inappropriate. The central issues were whether that decision defied the appellate determination, exceeded the statutory scheme, constituted an abuse of power, and unlawfully interfered with Article 8 rights.

1. Disposition. The claims succeeded on grounds (1), (2), (4) and (6). The decision letter was quashed. The delay was declared unlawful, the relevant passages of the 2005 Discretionary Leave policy were declared unlawful, and the Secretary of State was required to grant six months’ Discretionary Leave. The claimants received their costs on an indemnity basis.
2. Following Mersin, [2000] INLR 511, Boafo, [2002] EWCA Civ 44, and Saribal, [2002] EWHC 1542 (Admin), an unchallenged appellate immigration decision is binding. The Secretary of State cannot disregard it, or deliberately delay implementation in the hope of finding a justification for doing so.
3. There was no substantive distinction between deciding that it was inappropriate to grant Discretionary Leave and refusing leave by another name. Under the Immigration Act 1971, temporary admission under paragraph 21 of Schedule 2 is parasitic upon the detention power in paragraph 16. It is available as a supplementary measure while examination, a decision on leave, removal directions or their implementation genuinely remains pending. It is not a freestanding power to maintain a person indefinitely instead of deciding whether to grant or refuse leave. Khadir, [2005] UKHL 39, was distinguishable because it concerned a genuine paragraph 16(2) situation in which removal remained intended and potentially achievable.
4. The Secretary of State was also required to follow the published 2003 policy. The prolonged unexplained delay, followed by the introduction and application of a revised policy enabling refusal of leave in all but name, was deliberate and amounted to conspicuous unfairness and an abuse of power. The public interest in deterring hijacking could not justify action outside the statutory scheme.
5. The parenthetical provisions in the 2005 policy were unlawful insofar as they authorised temporary admission instead of a decision on leave, or gave Ministers an open-ended discretion to depart from the policy. Under Article 8(2), legality requires accessible and foreseeable rules defining the circumstances in which executive power may be exercised. The policy supplied no effective protection against arbitrary interference. The decision letter also failed to demonstrate a genuine proportionality balancing exercise: listing factors was insufficient.

First-instance judicial review. The judgment records that the claimants’ immigration appeals had been allowed on Article 3 grounds by a panel of adjudicators. Permission to appeal was refused by the Immigration Appeal Tribunal, and the Secretary of State did not seek statutory review.