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

Temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 is governed by section 67 of the Nationality, Immigration and Asylum Act 2002. The relevant question is whether practical difficulties impede or delay arrangements for removal. It is unnecessary to establish separately that the paragraph 16 detention conditions are presently satisfied.

Where paragraph 16 is relevant, removal remains pending if the Secretary of State intends to remove the person and there is some prospect of removal. That means a real or realistic prospect, not merely a fanciful possibility. The existence of a power to detain is distinct from the lawful exercise of that power. Temporary admission may therefore remain lawful despite the harshness and duration of the regime. The court found no basis for mandatory orders granting leave to enter.

Three claimants subject to long-standing temporary admission sought judicial review of the Secretary of State’s refusal to grant them leave to enter. They argued that removal was obstructed by difficulties in obtaining travel documents or securing admission to Palestine, Eritrea, Ethiopia, Saudi Arabia or Egypt, and that temporary admission was consequently unlawful.

The claim raised the construction of paragraph 21 of Schedule 2 to the Immigration Act 1971 and section 67 of the Nationality, Immigration and Asylum Act 2002, including the relevance of paragraph 16 and the meaning of the removal being pending. The claimants also sought mandatory relief requiring leave to enter.

1. Construction of the statutory scheme. Paragraph 21 of Schedule 2 to the Immigration Act 1971 does not itself confer a power to detain. It refers to persons liable to detention. Section 67 of the Nationality, Immigration and Asylum Act 2002 therefore applies directly. The court’s task was to determine whether practical difficulties impeded or delayed arrangements for removal. There was no need to undertake a separate inquiry into the paragraph 16 prerequisites.
2. Legal difficulties could, in any event, constitute practical difficulties. Difficulties arising under foreign law were not excluded, and practical difficulties could derive from legal difficulties. The grant of temporary admission was consequently lawful where those difficulties existed.
3. Alternative paragraph 16 analysis. If paragraph 16 had to be applied, removal was pending where the Secretary of State intended to remove the person and there was some prospect of removal, applying Khadir [2005] UKHL 39; [2006] 1 AC 207. “Some prospect” meant a real or realistic prospect. It did not mean that removal had to be achievable within a reasonable time. The existence of the detention power was distinct from whether detention could lawfully be exercised at a particular time.
4. On the facts, each claimant had some prospect of removal. The first claimant might obtain Palestinian travel documents through contacts in the West Bank. The second claimant had a possible route through Ethiopia, together with an undertaking that the Secretary of State would decide the removal issue soon. The third claimant might return to Saudi Arabia through sponsorship or through further discussions concerning Egypt.
5. The prolonged and restrictive nature of temporary admission did not itself create a substantive right to leave to enter. The circumstances did not justify a mandatory order. The claims were dismissed. The claimants were ordered to pay the defendant’s assessed costs, subject to the stated funding and assessment directions. Permission to appeal was granted because of the wider importance and number of potentially affected cases.

First-instance judicial review in the Administrative Court. Permission to appeal was granted by Mr Justice Cranston because of the wider importance of the issues and the number of potentially affected cases.