AR & FW, R (on the application of) v Secretary of State for the Home Department (Rev 1)

A person remains eligible for temporary admission in lieu of immigration detention while there is some genuine prospect of removal. The prospect may be distant, but it must not be so remote as to be unreal. The power ends only when removal is altogether ruled out.

A practical difficulty under section 67(2)(b) of the Nationality, Immigration and Asylum Act 2002 may arise from foreign law, governmental practice, policy or other obstacles to return. Section 67 does not narrow the temporary admission power or impose the reasonableness test governing the actual exercise of detention.

Three failed asylum-seekers were subject to temporary admission because obstacles prevented their removal. AR was a Palestinian from the West Bank who could not obtain travel documents. FW was born in Ethiopia to parents of Ethiopian and Eritrean origin, but neither state had accepted responsibility for her. MS was of Palestinian origin, had lived in Saudi Arabia and held Egyptian travel documents which conferred no right of entry to Egypt.

Cranston J dismissed their claims in [2009] EWHC 1044 (Admin). He held that paragraph 21 of Schedule 2 to the Immigration Act 1971 was to be interpreted through section 67 of the Nationality, Immigration and Asylum Act 2002, and that there remained some prospect of each appellant's removal.

The central issues were whether legal or effectively permanent obstacles were “practical difficulties” impeding or delaying removal, and whether eligibility for temporary admission continued when the prospect of removal was remote.

1. AR's appeal was dismissed. MS and FW were granted liberty to restore their appeals so that the prospects of their removal could be determined on the facts, or so that their appeals could be dismissed by consent. The Court unanimously upheld Cranston J's resolution of the underlying question of law.

2. Paragraphs 16 and 21 of Schedule 2 to the Immigration Act 1971 distinguish the existence of a power to detain from the reasonableness of exercising that power. Following Khadir [2005] UKHL 39, a person remains liable to detention, and therefore eligible for temporary admission, while the Secretary of State intends to remove that person and some prospect of removal remains. The prospect may be distant, but it must not be so remote as to be unreal. The residual requirement ceases to be satisfied only when removal is altogether ruled out: Sedley, Toulson and Laws LJJ.

3. The Hardial Singh principles concern when detention may reasonably be exercised. They do not ordinarily determine whether the underlying power to detain continues. Temporary admission is an ameliorating alternative to detention and may ordinarily continue on a long-term basis.

4. Per Sedley LJ, any obstacle which has the effect of impeding return may constitute a practical difficulty under section 67(2)(b) of the Nationality, Immigration and Asylum Act 2002, whatever its nature or origin. Foreign law is treated as fact in English law, and obstacles to removal commonly combine law, fact, governmental practice and policy.

5. Per Toulson and Laws LJJ, section 67 does not expand temporary admission to a person for whom removal has become impossible. An absence of any future possibility of removal negates the existence of the detention power itself. Nor does section 67 narrow the power otherwise arising under paragraph 21.

6. The legislation was not itself incompatible with Article 8 of the ECHR. A combination of temporary-admission conditions and other statutory or administrative restrictions might conceivably breach Article 8 in a particular case, but that stage had not been reached here.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 1310, dismissed AR's appeal and granted liberty to restore the appeals of MS and FW. It upheld the lower court's resolution of the underlying question of law.
2. High Court, Administrative Court: Cranston J, in [2009] EWHC 1044 (Admin), held that paragraph 21 of Schedule 2 to the Immigration Act 1971 was interpreted by reference to section 67 of the Nationality, Immigration and Asylum Act 2002, and found some prospect of each claimant's removal.