R v. Secretary of State for the Home Department and Another, Ex parte Khan and Others
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 3 February 1995 |
| Citation / Document Symbol | [1995] Imm AR 348, [1995] 2 All ER 540 |
| Cite as | R v. Secretary of State for the Home Department and Another, Ex parte Khan and Others, [1995] Imm AR 348, [1995] 2 All ER 540, United Kingdom: Court of Appeal (England and Wales), 3 February 1995, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6c3c.html [accessed 27 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v Secretary of State for the Home Department and another, ex parte Khan and others
COURT OF APPEAL, CIVIL DIVISION
[1995] Imm AR 348, [1995] 2 All ER 540
Hearing Date: 20 January, 3 February 1995
3 February 1995
Index Terms:
Immigration - Detention - Illegal entrant - Detention pending deportation - Applicants not having leave to enter or remain in the United Kingdom - Applicants applying for political asylum after arrival - Applicants detained pending directions for removal - Whether detention lawful pending determination of applications for asylum - Immigration Act 1971, Sch 2, para 16 - Asylum and Immigration Appeals Act 1993, s 6.
Held:
The applicants, who admitted that they were illegal immigrants and had not been granted leave to enter or remain in the United Kingdom, applied for political asylum after arrival. Thereafter each applicant was served with a notice from an immigration officer informing him that as an illegal entrant he was a person who was 'liable to be detained' pending the completion of arrangements for dealing with him under para 164 of Sch 2 to the Immigration Act 1971. The notice also indicated that the immigration officer proposed to give directions for his removal from the United Kingdom in due course and authorised his detention. The applicants applied for writs of habeas corpus to secure their release, contending that, by virtue of s 65 of the Asylum and Immigration Appeals Act 1993, there was no power to detain them under para 16(2). The judge held that the effect of s 6 of the 1993 Act was that while a claim for asylum was being considered, no directions for removal could be given under paras 8 or 9 of Sch 2 and that the power to detain under para 16(2) could only be exercised when an immigration officer or the Secretary of State had decided to give directions for removal. The judge accordingly concluded that since the applications for political asylum had been made before the immigration officer detained the applicants he had no power to detain under para 16(2) at that time, since none of the applicants was a person in respect of whom directions could at that time be given for his removal. He therefore directed that writs of habeas corpus be issued. The Secretary of State and the immigration officer appealed. Held - A person who sought political asylum in the United Kingdom after having entered the country illegally could be lawfully detained by an immigration officer under para 16(2) of Sch 2 to the 1971 Act pending the determination of his application for asylum. Nothing in s 6 of the 1993 Act prevented the applicant from being a person in respect of whom directions for removal might be given pursuant to paras 8 or 9 of Sch 2; what it did prevent was the giving of such directions while the asylum application was outstanding. The effect of that application was merely to protract the period during which the applicant was liable to be detained in consequence of the Secretary of State's intention to give directions for his removal; if it was granted, the applicant would clearly cease to be a person in respect of whom directions might be given, and the power to detain him would lapse. It followed that the applicants had been lawfully detained and accordingly the appeal would be allowed and the writs of habeas corpus set aside.Notes:
For application for political asylum, see 4(2) Halsbury's Laws (4th edn reissue) para 82. For detention of persons liable to be removed from the United Kingdom, see ibid para 119. For the Immigration Act 1971, Sch 2, paras 8, 9, 16, see 31 Halsbury's Statutes (4th edn) (1994 reissue) 105, 106, 109. For the Asylum and Immigration Appeals Act 1993, s 6, see ibid 222.Cases referred to in the Judgment:
R v Governor of Durham Prison, ex p Singh [1984] 1 All ER 983, [1984] 1 WLR 704. R v Secretary of State for the Home Dept, ex p Mahal [1986] Imm AR 369.Cases cited in the Judgment:
DPP v Bhagwan [1970] 3 All ER 97, [1972] AC 60, HL. Hooper v Lane (1857) 6 HL Cas 442, 10 ER 1368. Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, HL. R v Governor of Richmond Remand Centre, ex p Asghar [1971] 1 WLR 129, DC. R v Immigration Appeal Tribunal, ex p Secretary of State for the Home Dept [1990] 3 All ER 652, [1990] 1 WLR 1126, CA. R v Immigration Officer, ex p Shah [1982] 2 All ER 264, [1982] 1 WLR 544. R v Secretary of State for the Home Dept, ex p Iqbal [1979] 1 All ER 675, [1979] QB 264, DC. R v Secretary of State for the Home Dept, ex p Lapinid [1984] 3 All ER 257, [1984] 1 WLR 1269, CA. Baljinder Singh v Hammond [1987] 1 All ER 829, [1987] 1 WLR 283, DC.Introduction:
Appeal The Secretary of State for the Home Department and the immigration officer appealed from the order of Dyson J made on 16 January 1995 whereby he ordered that writs of habeas corpus ad subjiciendum be issued to secure the release of the respondents, Rehmat Khan, Parmjeet Singh Virk, Inderpal Singh and Pal Taggar, who had been detained under para 16 of Sch 2 to the Immigration Act 1971 pending determination of their applications for asylum. The facts are set out in the judgment of Leggatt LJ.Counsel:
David Pannick QC, Robert Jay and Steven Kovats for the Secretary of State and the immigration officer; Alper Riza QC and Arthur Blake for the first, second and third respondents; Sibghat Ullah Kadri QC and Terence Gallivan for the fourth respondent.Judgment-READ:
Cur adv vult 3 February 1995. The following judgments were delivered. PANEL: LEGGATT, OTTON LJJ, SIR RALPH GIBSONJudgment One:
LEGGATT LJ: The appeals The Home Secretary appeals against the order of Dyson J made on 16 January 1995 that writs of habeas corpus be issued to secure the release of the respondents, Rehmat Khan, Parmjeet Singh Virk, Inderpal Singh and Pal Taggar, from detention under para 16 of Sch 2 to the Immigration Act 1971. The references in this judgment to paragraphs will be to paragraphs of that schedule. The respondents, who all admit that they are illegal immigrants, all sought political asylum before they were detained. None of those applications has yet been determined by the Secretary of State. When the first respondent arrived in the United Kingdom in 1990 he obtained by deception leave to enter as a visitor. Having applied in January 1991 for political asylum, he received a notice dated 27 October 1994 from an immigration officer which informed him that as an illegal entrant he is a person 'who is liable to be detained pending the completion of arrangements for dealing with' him under para 16. The notice also indicated that the immigration officer proposed to give directions for his removal from the United Kingdom in due course and authorised his detention. The other three respondents arrived in the United Kingdom in 1994 clandestinely. Not long afterwards they applied for political asylum and were served on 8 December 1994 with a notice in the same terms as that served on the first respondent. The statutory provisions The following are the most material provisions of Sch 2:'2. -- (1) An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft (including transit passengers, members of the crew and others not seeking to enter the United Kingdom) for the purpose of determining -- (a) whether any of them is or is not a British citizen; and (b) whether, if he is not, he may or may not enter the United Kingdom without leave; and (c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave . . .
8. -- (1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below -- (a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or (b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or (c) give those owners or agents directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the direction to a country or territory so specified . . .
9. Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1). 10. -- (1) Where it appears to the Secretary of State either -- (a) that directions might be given in respect of a person under paragraph 8 or 9 above, but that it is not practicable for them to be given or that, if given, they would be ineffective; or (b) that directions might have been given in respect of a person under paragraph 8 above but that the requirements of paragraph 8(2) have not been complied with; then the Secretary of State may give the owners or agents of any ship or aircraft any such directions in respect of that person as are authorised by paragraph 8(1)(c) . . . (3) The costs of complying with any directions given under this paragraph shall be defrayed by the Secretary of State . . . 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) A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of an immigration officer pending the giving of directions and pending his removal in pursuance of any directions given . . .' Also material is s 6 of the Asylum and Immigration Appeals Act 1993, which provides:'Protection of claimants from deportation etc. -- During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.'The judgment
The judge considered first the argument on behalf of the respondents that an immigration officer has no power to give directions for removal under paras 8 to 14 because s 6 of the 1993 Act prohibits the giving of such directions once a claim for political asylum has been made until the Secretary of State gives the claimant notice of the decision on his claim, and that because he has not dealt with the respondents' claims, there is no power to detain any of them under para 16(2). The judge took the view that 'the effect of s 6 of the 1993 Act is that while a claim for asylum is being considered, no removal directions may be given under paras 8 or 9'. He held that in para 16(2) the word 'may' does not mean 'it is possible that' but 'it is permissible to', and so that the power to detain under that sub-paragraph can only be exercised when an immigration officer or the Secretary of State has decided to give directions for removal. The judge accordingly concluded:'In all four cases before me, applications for political asylum were made before the immigration officer detained them. He had no power to detain under para 16(2) . . . at that time, since none of the four was a person in respect of whom directions could at that time be given for his removal. The power to detain under para 16(2) is ancillary to the power to require an immigrant to leave the United Kingdom by giving directions for his removal. The power to detain is in order to enable removal to be effected. If at the time of the detention there is no power to require the applicant to leave, and it is unknown whether there ever will be such power, then in my view there is no power to detain.'Mr Pannick QC's argument
Mr David Pannick submitted on behalf of the Secretary of State that but for s 6 of the 1993 Act there would be power to detain under para 16(2). That sub-paragraph deals with detention when leave to enter has been refused or when the person concerned is an illegal entrant. Detention would be pending the giving of directions under para 9 read with para 8. He invokes the comment of McCowan J in R v Secretary of State for the Home Dept, ex p Mahal [1986] Imm AR 369 at 375 that the phrase 'in pursuance of any directions given' in the sub-paragraph 'predicates that in fact no directions may be given'. Mr Pannick acknowledges that s 6 of the 1993 Act protects an asylum-seeker against being removed or required to leave but argues that it does not exclude the power to detain under para 16(2). The sub-paragraph applies to a person in respect of whom directions may lawfully be given at a future date, and is at least capable of covering a case under para 8(2) where directions 'may be given' lawfully in the future. In the present case the reason why directions are not currently given is that the respondents want to have their asylum claims considered. Mr Pannick submitted that to construe para 16(2) as concerned only with a case where directions can immediately be given would conflict with the explicit recognition in Sch 2 that there can be good reasons for delaying the giving of directions and that they may not be given at all. It would be surprising if s 6 of the 1993 Act was intended to deny power to detain an illegal entrant who claims asylum. That section is designed to secure compliance with the international obligation not to require the removal of a person to a country where he may be prosecuted, but no international obligation prevents the United Kingdom from detaining asylum-seekers while their applications are being considered if there is reason to fear that they may abscond. Mr Pannick drew an analogy with Sch 3 to the 1971 Act which is concerned with deportation. Under it para 2 provides for detention pending the making of the deportation order. The use of the concept of 'pending' cannot mean that the Secretary of State must already have decided to make the deportation order nor that he must at that time have power immediately to make such an order, because he has no power to do so until the appeal process has been exhausted. It follows that detention under para 2 of Sch 3 pending deportation cannot envisage detention only when there is an immediate power to make an order; and detention under para 16(2) pending removal directions should be similarly construed. Mr Riza QC's argument Mr Alper Riza on behalf of the first three respondents sought to uphold the judge's conclusion. He argued that the power to give directions forms an integral part of the machinery for removal of illegal entrants under paras 9 and 10, and that the words of the Act 'may not be removed from . . . the United Kingdom' subsume the power to give directions. The Secretary of State does not remove persons himself but gives directions to carriers for their removal. The words 'may not be removed . . . from the United Kingdom' can only mean that directions for removal may not be given. The obligation not to remove is imposed on the Secretary of State on behalf of the Crown, and since he has no means of removing persons, so he has no power to remove them. The question is whether the power to give directions exists at all during the relevant period, and not whether, given that it exists, it may not be exercised in future. Mr Riza analysed elaborately the conventional process of entry into the United Kingdom at designated ports or airports, in the course of which immigration officers have powers to examine non-British persons either before they disembark or afterwards in controlled areas. If such a person is required to submit to further examination he can be detained in the meanwhile under para 16(1). Once the power to examine has expired, there is no power to detain except under para 16(2) pending removal pursuant to directions. Where persons have entered unlawfully they cannot be treated as illegal entrants after they have entered because there is no longer any power to examine them. But after entry an illegal entrant is subject to criminal prosecution and may be deported. Mr Kadri QC's argument Mr Kadri argued for the fourth respondent that the Secretary of State is treating the legislation as a licence to keep the respondents without limit of time pending consideration of their applications for political asylum. When he made his application for asylum the fourth respondent rendered himself amenable to criminal prosecution. Section 4(2)(d) of the 1971 Act gives effect to Sch 2 with respect to 'the detention of persons pending examination or pending removal from the United Kingdom'. Detention for examination is authorised by para 16(1) and for removal by para 16(2). But in this case there is nothing pending. Mr Kadri cites, as had Mr Riza, R v Governor of Durham Prison, ex p Singh [1984] 1 All ER 983, [1984] 1 WLR 704 as dealing with the analogous power to detain under para 2(3) of Sch 3. They submit that it recognises the limitations on detention pending removal from the United Kingdom under administrative powers. Woolf J said ([1984] 1 All ER 983 at 985, [1985] 1 WLR 704 at 706):'Although the power which is given to the Secretary of State in para 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Second, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.'Mr Kadri repudiates any intention to read the word 'immediately' into para 16(2): though directions should be given as soon as possible, the Secretary of State has a reasonable time in which to give them. But they can only be given after a decision to remove has been taken, and they must be ancillary to removal. An applicant cannot be held pending the giving of directions or pending removal if there is a subsisting legal impediment to removal. In reality the fourth respondent is being detained, according to Mr Kadri's submission, pending the determination of his application for political asylum. Only if the application for political asylum is refused, can he be removed or detained pending removal.
Conclusion In my judgment the application of Sch 2 to the respondents is demonstrable. The respondents are illegal entrants who have not been given leave to enter or remain in the United Kingdom. Accordingly, by virtue of para 9 an immigration officer may give any such directions in respect of them as are authorised by para 8(1), namely directions requiring the owners or agents of the ships or aircraft in which they arrived requiring the removal of the respondents in any specified ship or aircraft. But whether or not the Secretary of State knows how the second, third and fourth respondents entered this country, it is obviously not practicable for directions to be given now. So under para 10 the Secretary of State may give to the owners or agents of any ship or aircraft directions for the respondents' removal to any of the countries or territories specified in para 8(1)(c). By force of para 16(2) pending the giving of directions the respondents may be detained, just as pending deportation the person concerned may be detained while the appeal process is being exhausted notwithstanding that no deportation order can be made pending appeal. In Singh's case it was held that the reasonableness of the period of detention depended on all the circumstances of the case, whereas here the contention is that, irrespective of the period, there was no power of detention at all. Nothing in s 6 of the 1993 Act prevents any of the respondents from being persons in respect of whom directions may be given: what it prevents is the giving of directions for removal while the applications for asylum are outstanding. During the period when asylum is being sought, the power to give directions exists; but the existence of the power does not oblige the Secretary of State to exercise it either at once or at all. The effect of the applications for asylum is merely to protract the period during which in consequence of the Secretary of State's intention to give directions for their removal the respondents are liable to be detained. As Mr Pannick submitted, Parliament cannot sensibly have intended that any illegal entrant who is apprehended can, by claiming asylum, avoid detention unless and until his asylum claim is investigated and dismissed. That he could then be detained would be irrelevant if he could no longer be found. Although the immigration officer intends to give directions for the removal of the respondents, he cannot do so pending the Secretary of State's determination of their applications for asylum. Since there is reason to fear that unless detained they may abscond, pending the giving of directions, and indeed pending their removal, the respondents are detained. But if the applications are granted, they will cease to be persons in respect of whom directions may be given, and the power to detain them will lapse. In my judgment the judge came to a wrong conclusion on this issue and because by reference to it the respondents' detention is justifiable, it is unnecessary to consider the Secretary of State's alternative argument. I would allow the appeal and set aside the writs of habeas corpus.Judgment Two:
OTTON LJ: I agree.Judgment Three:
SIR RALPH GIBSON: I agree that this appeal should be allowed for the reasons given by Leggatt LJ. It was held by Dyson J that the effect of s 6 of the Asylum and Immigration Appeals Act 1993 was to deprive the immigration officer of the power to detain an illegal immigrant under para 16(2) of Sch 2 to the Immigration Act 1971 at any time after a claim for asylum is made by the illegal immigrant until a decision has been made by the Secretary of State upon that claim. The position in law prior to the passing of the 1993 Act was that for many years the obligations of the United Kingdom under the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171) and the protocol thereto (New York, 31 January 1967; TS 15 (1969); Cmnd 3906) had existed under international law and those obligations, in the case of a person who had made a claim for asylum, included the obligation not to remove that person from this country or to require him to leave until the claim for asylum had been decided against him. Compliance within this country with those obligations under international law was secured, or intended to be secured, by means of statements of rules, laid down as to the practice to be followed in the administration of the 1971 Act, which statements were made and laid before Parliament under s 3(2) of that Act. Neither the Secretary of State nor the immigration officer could lawfully act in breach of those rules. The 1993 Act by s 2 provided:'Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.'It has not been suggested that any of the rules in existence before the 1993 Act were contrary to the 1951 convention. There was enacted by s 6, as a rule of the domestic law of this country, that which had previously existed as an international obligation supported by, as I have said, the previously current immigration rules. Nothing is said in s 6 about detention pending a decision of a claim for asylum. I can see no reason, which can be derived from the provisions of the 1993 Act as applied to those of the 1971 Act, to attribute to Parliament by the enactment of s 6 the intention to deprive the Secretary of State of discretionary power to detain, when the facts warrant such a course, an illegal immigrant pending decision of his claim for asylum.
