COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
Mr Justice Sullivan
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE NEUBERGER
| S AND OTHERS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Rabinder Singh QC and Duran Seddon (instructed by Hammersmith & Fulham Community Law Centre) for the Respondents
Crown Copyright ©
Lord Justice Brooke:
This is the judgment of the court.
i) allowed the respondents' claim for judicial review (para 1);
ii) quashed the Secretary of State's decision dated 3rd November 2005, which was to the effect that it was not "appropriate" to grant the respondents discretionary leave and that they should "remain on temporary admission" (para 2);
iii) declared that the delay on the part of the Secretary of State in granting the respondents leave to enter this country was unlawful (para 3);
iv) made a mandatory order that the Secretary of State grant the respondents a period of six months' discretionary leave to enter this country within seven days of the order being sealed (para 5);
v) directed the Secretary of State to pay the costs of the respondents on an indemnity basis (para 6); and
vi) directed a detailed assessment of the respondents' publicly funded Community Legal Service costs (para 7).
"2.6 … unless Ministers decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted, the individual will be kept or placed on temporary admission or temporary release…"
"However Ministers may decide that it is inappropriate to grant any leave to a person falling within the excluded category in the light of all the circumstances of the case. Where it is decided that leave should not be granted the individual will be kept or placed on temporary admission or temporary release."
"… and may affect whether the person qualifies for Discretionary Leave at all…"
"… unless Ministers decide, in view of all the circumstances of the case, that it is inappropriate to grant any leave and instead place or keep the person on temporary admission or temporary release."
"5.1 … (unless Ministers decide in the light of all the circumstances of the case that it is inappropriate to grant any leave and instead keep or place the person on temporary release or temporary admission)."
"6.3 … Even if removal of a person falling into an exclusion category is not considered possible within six months, Ministers may decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted the individual will be placed on temporary release."
"he has committed a serious non political crime outside the country of refuge prior to his admission to that country as a refugee."
"91. Having heard the evidence of the appellants and the experts, and having read the objective evidence, we are satisfied that the borders of Afghanistan are and were at the relevant time porous relative to many countries. We find that these appellants could have attempted an alternative means of escape to a neighbouring country. There were routes through the mountains and unmanned border posts. We find that despite all of the appellants' statements to the contrary there was not such an immediacy of danger of arrest or lack of opportunity to move away from the Kabul area such that they could not have found an alternative to the hijacking. The appellants could have chosen to travel to Pakistan, although there was a strong Taliban and radical Islamic Movement presence there. If they had gone to Pakistan, it was most unlikely they would have experienced any particular difficulties moving on from there. The further they travelled away from Afghanistan and the Peshawar area the less likely they would have been in danger. They could have remained elsewhere in Pakistan or if they still felt in danger of persecution they could have travelled on to claim asylum in another country. They could have claimed asylum in Tashkent or in Moscow but chose not to do so.
92. For the reasons set out above we find that there were some mitigating circumstances leading to the decision to hijack the aircraft. However, we find also that there are no serious grounds for concluding that the appellants were placed in such a position that they were compelled to carry out the hijacking nor were they under such pressure as to justify the hijacking. Thus there is insufficient reason to counter our finding that there are serious grounds for considering that all of these appellants have prior to their arrival and claim to refugee status committed a serious non-political crime outside the United Kingdom, namely the hijacking of the Ariana Afghan Airways Boeing 727.
93. Accordingly all the appellants are excluded from the protection of the Refugee Convention."
"219. To summarise, we find that the appellants are in a unique position because of their role in the hijacking and the very high level of notoriety and publicity which the hijacking was given in Afghanistan and the level of interest it still generates. We accept that the Taliban condemned the appellants to death and that in principle they see them as enemies of Islam. This is supported by their numerous utterances at the time and by the terms in which they convicted the appellants. We also accept the evidence that the Taliban have the capacity to carry out targeted attacks. Although their attacks have primarily been in the south-east they have clearly been able to carry out a number of high profile attacks in Kabul and have been re-grouping with a view to carrying out more attacks and have uttered many threats. We also accept the evidence of the experts that although the Taliban's efforts to date have been directed against foreign aid workers and those associated with the TA, the unique position of the appellants would make them of interest to the Taliban because of the damage they did to the Taliban regime at the time of the hijack. We also take into account that because of the appellants' high profile it would be an enormous public relations coup for the Taliban to show that they could still take revenge against their enemies. For all these reasons we find that there is a real risk that the appellants would be targeted for assassination by the Taliban which clearly would be treatment contrary to Article 3.
220. We also wish to make it clear that our view that the Taliban would target individuals whom they consider to be enemies is not a precedent applicable to the generality of Afghans who left Afghanistan in fear of the Taliban regime. We specifically point out that the reason why we find these appellants are at risk is because of their particularly high profile and their unique position as the main actors in the hijacking who have been convicted and sentenced to death [in] their absence."
"240. Taking all this into account, and bearing in mind our findings about the risk on return to the appellants from the Taliban who have the capacity to carry out attacks in Kabul, we conclude that on return the appellants' connection with the hijacking and all that it stands for in the Taliban conscience, if not in the national Afghan conscience, will place them at risk of being killed or seriously injured or ill-treated by the Taliban. On the evidence before us, there is little, if any, likelihood that the system of protection currently or in the foreseeable future likely to be in place in Kabul or elsewhere in Afghanistan could offer any of the appellants a reasonable sufficiency of protection given their notoriety. We therefore find that there would be no sufficiency of protection in accordance with the principles enunciated in the cases of Horvath http://www.bailii.org/uk/cases/UKHL/2000/37.html Imm AR 552 and Bagdanavicius available to the appellants in Kabul.
241. The rights protected by Article 3 are unqualified or absolute so that the assessment of risk in an Article 3 claim is not restricted by reference to the appellants' conduct. In the light of our findings that there is a real risk that the appellants' rights under Article 3 would be violated on return and that there is an insufficiency of protection, the appeals of all the appellants under the European Convention are allowed."
"(1) Where this article applies to a person, the Secretary of State may give or refuse him leave to enter the United Kingdom.
(2) This article applies to a person who seeks leave to enter the United Kingdom and who –
(a) has made a claim for asylum; or
(b) has made a claim that it would be contrary to the United Kingdom's obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.
(4) In deciding whether to give or refuse leave under this article the Secretary of State may take into account any additional grounds which a person has for seeking leave to enter the United Kingdom.
(5) The power to give or refuse leave to enter the United Kingdom under this article shall be exercised by notice in writing to the person affected or in such manner as is permitted by the Immigration (Leave to Enter and Remain) Order 2000."
Article 3 in effect substitutes the Secretary of State for references to the immigration officer in (inter alia) paragraphs 2, 8 and 21 of Schedule 2 to the 1971 Act.
"The system of granting leave exceptionally outside the Rules (ELE/R) has been changed. In any case decided on or after 1 April, where asylum is refused consideration should be given to granting Humanitarian Protection, details of which are set out in this instruction. There will, in addition, be a limited number of cases which do not qualify for Humanitarian Protection, but for which a period of discretionary leave is merited. For these cases see the API on Discretionary Leave."
"A person who falls under the eligibility criteria listed above should not be granted Humanitarian Protection if there are serious reasons for considering that the person:
has committed a serious crime in the United Kingdom or overseas;
Where a person is excluded from Humanitarian Protection, consideration should be given to whether they qualify for Discretionary Leave (see the API on Discretionary Leave)."
"… Exceptional leave has been replaced by leave granted on the basis of Humanitarian Protection, details of which are set out in the API on Humanitarian Protection, and by Discretionary Leave for a limited number of cases which do not qualify for Humanitarian Protection but qualify for a period of leave. This instruction explains the limited circumstances in which it would be appropriate to exercise this discretion to grant leave outside the Rules."
""Where a person would have qualified for Humanitarian Protection but for the fact that they were excluded from such protection (see paragraph 2.5 of the API on Humanitarian Protection) they should be granted Discretionary Leave."
"Although the same exclusion criteria are to be used in considering Discretionary Leave cases their application is necessarily different. In particular, a person whose removal, notwithstanding their actions, would breach the ECHR and who does not qualify for any other form of leave should normally (unless the option of deferred removal is taken - see paragraph 5.4) be granted a limited period of Discretionary Leave even if they fall within the exclusion criteria."
There was no question of deferred removal in this case.
"Subject to paragraphs 5.2, 5.3, 5.4 and 5.5, it will normally be appropriate to grant the following period of Discretionary Leave to those qualifying under the categories set out in paragraph 2. ...
Paragraph 2.6 (excluded from HP) - 6 months."
Paragraphs 5.2, 5.3, 5.4 and 5.5 have no application in the present case.
" Where a person would have qualified for Humanitarian Protection but for the fact that they were excluded from such protection, they should be granted Discretionary Leave unless Ministers decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted, the individual will be kept or placed on temporary admission or temporary release.
Although the same exclusion criteria are to be used in considering Discretionary Leave cases, their application is necessarily different. In particular, a person whose removal, notwithstanding their actions, would breach the ECHR and who does not qualify for any other form of leave should normally (unless the option of deferred removal is taken - see section 5.3) be granted a limited period of Discretionary Leave even if they fall within the exclusion criteria. However Ministers may decide that it is inappropriate to grant any leave to a person falling within the excluded category in the light of all the circumstances of the case. Where it is decided that leave should not be granted the individual will be kept or placed on temporary admission or temporary release."
"Excluded from Humanitarian Protection - six months unless Ministers decide in the light of all the circumstances of the case that it is inappropriate to grant any leave and instead keep or place the person on temporary release or temporary admission."
"Even if removal of a person falling into an exclusion category is not considered possible within six months, Ministers may decide in view of all the circumstances of the case that it is inappropriate to grant any leave. Where it is decided that leave should not be granted, the individual will be placed on temporary admission or release."
"31. The expressions 'prescribed by law' in article 5(1), 5(1)(b), 10(2) and 11(2) and 'in accordance with the law' in article 8(2) are to be understood as bearing the same meaning. What is that meaning?
32. The claimants relied on a number of authorities such as Malone v United Kingdom (1984) 7 EHRR 14, paras 66-68, Huvig v France (1990) 12 EHRR 528, Hafsteinsdóttir v Iceland (Application No 40905/98), (unreported), 8 June 2004, paras 51 and 55-56 and Enhorn v Sweden (2005) 41 EHRR 633, para 36, to submit that the object of this requirement is to give protection against arbitrary interference by public authorities; that 'law' includes written and unwritten domestic law, but must be more than mere administrative practice; that the law must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power may be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions; that the scope of any discretion conferred on the executive, which may not be unfettered, must be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power may be exercised; and that there must be legal safeguards against abuse…
33. The defendants did not, I think, challenge the principles advanced by the claimants, which are indeed to be found, with minor differences of expression, in many decisions of the Strasbourg court. But they strongly challenged the claimants' application of those principles to the present facts…
34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided."
"16 (1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter."
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending –
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"21 (1) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.
(2) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or released from detention; but this shall not prejudice a later exercise of the power to detain him."
"67(1) This section applies to the construction of a provision which -
(a) does not confer power to detain a person, but
(b) refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.
(2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that –
(a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,
(b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or
(c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.
(3) This section shall be treated as always having had effect."
"31. For my part I have no doubt that Mance LJ was right to recognise a distinction between the circumstances in which a person is potentially liable to detention (and can properly be temporarily admitted) and the circumstances in which the power to detain can in any particular case properly be exercised. It surely goes without saying that the longer the delay in effecting someone's removal the more difficult will it be to justify his continued detention meanwhile. But that is by no means to say that he does not remain 'liable to detention'. What I cannot see is how the fact that someone has been temporarily admitted rather than detained can be said to lengthen the period properly to be regarded as 'pending ... his removal'.
32. The true position in my judgment is this. 'Pending' in paragraph 16 means no more than 'until'. The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that the removal must be 'pending', still less that it must be 'impending'. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21.
33. To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot); nothing about its existence. True it is that in Tan Te Lam  AC 97 the Privy Council concluded that the power itself had ceased to exist. But that was because there was simply no possibility of the Vietnamese Government accepting the applicants' repatriation; it was effectively conceded that removal in that case was no longer achievable. Once that prospect had gone, detention could no longer be said to be 'pending removal'."
"ELE means what it says: it is exceptional. The Secretary of State's discretion is a very wide one and it is hardly surprising that he found nothing exceptional about this case when he refused to grant ELE a mere 18 months after the appellant's unlawful entry into this country. Nor should the fact that the appellant has now been here for a further five years occasion any particular optimism for the future: by section 67 Parliament has manifested its clear intention that even those awaiting removal on a long-term basis should ordinarily do so under the temporary admission regime."
"2(3) A person, on being examined under this paragraph by an immigration officer … may be required in writing by him to submit to further examination…"
"In 1999 this Court, for the fourth time in five years emphasized the urgent need for legislation to define duress with precision."