House of Lords
|Session 2001- 02
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|Judgments - Secretary of State For The Home Department Ex Parte Saadi (Fc) and Others (Fc)
HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Mustill Lord Slynn of Hadley Lord Hutton Lord Scott of Foscote
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SAADI (FC) AND OTHERS (FC)
ON 31 OCTOBER 2002
 UKHL 41
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he gives, with which I agree, I too would dismiss this appeal.
2. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. I agree with it and for the reasons which he gives I too would dismiss this appeal.
LORD SLYNN OF HADLEY
3. This appeal raises issues as to whether the four claimants were unlawfully detained after they came to this country seeking asylum. They are all Kurdish Iraqis who left the Kurdish Autonomous Region in northern Iraq. They claim for various reasons that they could not safely remain or return to Iraq because of the risks to them of persecution, respectively from the Patriotic Union of Kurdestan, from the Iraqi Government or from the Islamic Movement of Iraqi Kurdestan. They were all detained at the Oakington Reception Centre.
4. There are differences between their cases. Thus Dr Saadi flew into Heathrow and on three occasions between 30 December 2000 and 2 January 2001 was granted temporary admission on conditions as to reporting with which he complied before on 2 January 2001 he was sent to the Oakington Reception Centre. The other three claimants arrived at Dover concealed in the back of a lorryMr Maged on 6 December 2000 when he claimed asylum on arrival at Dover but he was detained as an illegal entrant and transferred to Oakington. Mr Osman arrived on 4 December 2000. He asked for asylum at the Immigration and Nationality Directorate in Croydon but was declared to be an illegal immigrant and sent to Oakington. Mr Mohammed also arrived at Dover concealed in a lorry on 4 December 2000 when he claimed asylum at a police station. He was directed to the Croydon Directorate where on 5 December 2000 he was determined to be an illegal entrant and sent to Oakington.
5. Subsequent to going to Oakington Dr Saadi on 8 January 2001 was refused asylum but was released on temporary admission on 9 January pending an appeal. His appeal was allowed by an adjudicator but that decision was reversed by the Immigration Appeal Tribunal and his case was sent for re-hearing. Mr Maged was refused asylum on 16 December 2000 but released on temporary admission pending an appeal. His appeal was successful and he was granted asylum. Mr Osman was refused asylum on 11 December 2000 but was released on temporary admission pending an appeal which is not yet determined. Mr Mohammed, having been refused asylum on 11 December 2000, was released on temporary admission on 13 December pending an appeal which was successful on 24 April 2001. Like Mr Maged he now has refugee status.
6. Dr Saadi was thus actually detained at Oakington from 2 to 9 January (7 days); Mr Maged from 6 December to 16 December (10 days); Mr Osman from 4 December to 12 December (8 days) and Mr Mohammed from 5 December to 13 December (8 days).
7. They all complained of the illegality of their detention at the Oakington Reception Centre. Collins J. held that the detention of all the appellants at Oakington was unlawful. The Court of Appeal unanimously reversed that decision: see  1 WLR 356.
8. The Immigration Act 1971 in Schedule 2 contains detailed administrative provisions as to the control of persons seeking to enter the United Kingdom. In particular by paragraph 2 of the Schedule, immigration officers may examine persons who have arrived there to determine inter alia whether they have leave to enter or whether they should be given or refused leave to enter. By paragraph 16 of the Schedule:
9. By paragraph 18 of the Schedule, persons "may be detained under paragraph 16 above in such places as the Secretary of State may direct" and a person detained under paragraph 16 is deemed to be in legal custody" (paragraph 18 (4)). A person so detained may be released on bail by a chief immigration officer or an adjudicator (paragraph 22 (1A)) but only when 7 days have elapsed since the person's arrival in the United Kingdom. Temporary admission may be granted to persons liable to be detained without their being detained or on release from detention. By section 11 of the 1971 Act temporary admission does not constitute entry. By section 4 of the Immigration and Asylum Act 1999 the Secretary of State "may provide, or arrange for the provision of, facilities for the accommodation of persons", temporarily admitted under paragraph 21 of Schedule 2 to the 1971 Act or released on bail from detention under any provision of the Immigration Act.
10. The number of persons arriving in the United Kingdom and seeking asylum has grown considerably in recent years. Thus your Lordships were told that from July to September 1999 the average number of applications was 7,000 a month, a 60% increase on the previous year. The figure of arrivals from Iraq rose on average from c.90 per month in 1997 to c.150 per month in 1999 and 280 per month in the early part of 2000. This obviously placed considerable strain on the immigration services since it is apparent from past experience that not all those who claim asylum can justify the claim however understandable their desire to leave the conditions in which they live in their own states. The question on this appeal is whether one of the steps taken by the government to try to deal with the problem is lawful.
11. It is clear that the Home Office is entitled to adopt a policy in relation to the procedures to be followed, a policy which may be changed from time to time as long as it does not conflict with relevant principles of law. In July 1998 the Government adopted the broad criteria to be followed"whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances:
(Government paper "Fairer, Faster And FirmerA Modern Approach to Immigration And Asylum").
12. In a news release no. 059/00 of March 1999 the Home Office announced that:
It added that:
The Immigration Minister, Mrs Barbara Roche said:
13. In the House of Commons the Minister gave a written answer on 16 March 2000 (Hansard Col. 263W) stating that if claims could not be decided in a period of about 7 days "the applicant will be granted temporary admission or, if necessary in line with existing criteria, moved to another place of detention".
14. Thus instead of the applicant being given 5 days to submit further representations after an initial substantive interview, the new arrangements provided that interview would "other than in very exceptional circumstances take place on the third day at the centre". Since the 5 day period was now to run from the date that the application for asylum was made that would normally leave 2 days for the submission of representations. Legal advice on site at Oakington was to be provided by the Refugee Legal Centre and Immigration Advisory Service in connection with these procedures.
15. The Home Office made it clear in its Operational Enforcement Manual of 21.12.2000, para. 38.1 that:
It repeated at para. 38.3 of the same document: "There is a presumption in favour of temporary admission or temporary release" and that the following inter alios are unsuitable for Oakington:
16. Following a decision to detain the applicant must be given a form IS91R "Reasons For Detention" indicating one or more specific reasons which apply to the particular case (para 38.5.2). These include the likelihood of absconding, inadequacy of information, imminent removal, the need to detain whilst alternative arrangements are made or release not being conducive to the public good. By an addendum to the form a reason was added:
It is obvious that anyone detained under the Oakington regime should have been given that statement but it was not in fact part of the form at the time that the appellants were detained and Collins J. was very critical of the fact that they had been given a form with inappropriate reasons.
17. There is obviously a deprivation of liberty in detaining people at Oakington. They cannot leave the centre, they must conform to the rules as to mealtimes and to being in their rooms at night. On the other hand it is not suggested that the physical conditionsthe state of the rooms, sanitation, mealsare in themselves open to criticism. Moreover there are provisions not only for legal advice but for medical advice, for recreation and for religious practice.
18. Mr Ian Martin, the Oakington Project Manager and an experienced Immigration and Nationality Directorate Inspector, described in detail the purposes of and the type of the regime which had been provided. He said:
19. In his second witness statement Mr Martin stressed that these present cases could be considered capable of being decided quickly and that they had been decided quickly and he again rejected that there had been an "over-rigid reliance" on the fact that the applicants were of Kurdish nationality from the Autonomous Region.
20. In his third witness statement he repeated that the Home Office view was and is that the "Oakington regime is necessary and appropriate in order to achieve" the objective of speedy decision-making of a substantial number of claims. Other regimes suggested on behalf of the applicants would not be considered as effective and appropriate to achieve that objective. Thus it was suggested first that the applicants be granted temporary admission under section 4 of the Immigration and Asylum Act 1999 subject to conditions that they be required to stay at Oakington but not detained there. The Home Office's view was that people would be less readily available at short notice if they could move about even without absconding and with up to 150 scheduled interviews a day, tight management and structuring are important. The speed and effectiveness of the procedure would be undermined by such an arrangement. The propriety of following this first alternative course is in any event doubted. Analogous objections are raised to the alternative course suggested of allowing people to come and go subject to directions that the applicant stay overnight and attend for scheduled appointments.
21. There is now no doubt that the justification relied on for the claimants being sent to and held at Oakington was that these cases fell within the category of those capable of speedy decision. It is not suggested, whatever they may have erroneously been told in form IS91R as being the reasons relied on that they were detained because there was a risk that they would abscond (which particularly in Dr Saadi's case would seem a flimsy reason). Nor is it said that they had committed unlawful activities in other countries, even though they had arrived in this country concealed in the back of a lorry, a course understandable in view of the conditions and the risk of persecution under which some would-be asylum seekers lived.
22. The claimants' first argument was on the basis of the provisions of the Immigration Acts. The position under domestic law shorn of Human Rights Act considerations (which is now a largely hypothetical question) is in my view clear. As the judge and the Court of Appeal stressed, para. 16 of Schedule 2 gives power to detain "pending" examination and a decision; that in my view means for the period up to the time when the examination is concluded and a decision taken. There is no qualification that the Secretary of State must show that it is necessary to detain for the purposes of examination in that the examination could not otherwise be carried out since applicants would run away. Nor is it limited to those who cannot for whatever reason appropriately be granted temporary admission. The period of detention in order to arrive at a decision must however be reasonable in all the circumstances.
23. It is Government policy that temporary admission should be granted where appropriate but it does not follow that if temporary admission can be granted there is no power to detain. On the contrary the power to grant temporary admission under para. 21 of Schedule 2 only arises where there is a power to detain.
24. There is obviously force in the argument for the claimants that if there is no suggestion that they might run away then it cannot be strictly necessary to detain them as opposed to requiring them to comply with a fixed regime enabling detailed examination to take place. This, however, ignores the realitylarge numbers of applicants have to be considered intensively in a short period. If people failed to arrive on time or at all the programme would be disrupted and delays caused not only to the individual case but to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be there might be more room for doubt but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary.
25. This does not mean that the Secretary of State can detain without any limits so long as no examination has taken place or decision been arrived at. The Secretary of State must not act in an arbitrary manner. The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making.
26. Statutory powers of this kind must be exercised reasonably by government, at any rate in the absence of specific provision laying down particular timescales for administrative acts to be performed. An analogous application of this principle is to be found in judgments dealing with the detention of those who are or may be subject to deportation. Thus in R v Government of Durham Prison, Ex p Hardial Singh  1 WLR 704 at 706 Woolf J said in relation to the power of deportation:
See Tan Te Lam v Superintendent of Tai A Chau Detention Centre  AC 97. A failure to observe this is clearly subject to review by the courts but it cannot possibly be said in the present cases that the examination was not undertaken and the decision not arrived at within a reasonable period. Looking only at the immigration legislation it seems to me that these applications could not possibly succeed.
27. The claimants' principle argument, however, is that this detention is precluded by Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as now incorporated in the Human Rights Act 1998 unless it falls within sub para. (f) of that Article and that it does not fall within sub para. (f). Detention for administrative convenience enabling a speedy decision is "simply not within the language of Article 5(1)(f)". Alternatively detention is not within Article 5(1)(f) where it is not required in order to prevent unauthorised entry where there was no risk of any of the claimants absconding and where after their claims for asylum had been refused each was released from detention. An alternative but related argument is that if the detention for the purposes relied on can fall within Article 5(1)(f) this detention was disproportionate to the reason relied oni.e. to achieve a speedy determination of the case.
28. Article 5(1)(f) provides that:
The claimants stress, as the Strasbourg Court has often said, that:
The claimants contend that the exhaustive list of exceptions in Article 5 must be narrowly construed. Moreover, even though para. (f) does not, unlike para. (c) use the word "necessary", detention must be "necessary" to achieve the objective and no other means of securing fulfilment of the objectives is reasonably practicable.
29. My Lords, it is clear that detention can only be justified if one of the two alternative situations specified in Article 5(1)(f) is established. It must be either (a) "to prevent his effecting an unauthorised entry into the country" or it is detention (b) "of a person against whom action is being taken with a view to deportation or extradition". The claimants say that the present cases fall within (a) and here "necessity" must be established whatever the position under the second limb. If detention does not "prevent" the effecting of an unauthorised entry then it is not justified under the para. 5(1)(f) first limb. They rely on the statement of Collins J at first instance  1 WLR 356, 373, para 30:
It is said that it is wrong to accept, as the Court of Appeal accepted, that detention is covered by Article 5(1)(f) "unless and until entry is authorised" as long as the detention processes are not unduly prolonged. In the first place detention to examine for the purposes of granting an authorisation is not within Article 5(1)(f); in the second place where examination is sufficient to prevent unauthorised entry, detention is not "causally linked" to the prevention of unauthorised entry. Temporary admission is a sufficient and an acceptable alternative to detention; it is a form of conditional authorised entry so that the person concerned can still be refused entry. Accordingly detention where each had made a proper application for asylum and where there was no risk that each would abscond is outside Article 5(1)(f) of the Convention; alternatively it is a wholly disproportionate response since any concerns as to whether alternative methods of control would be effective were based merely on assumption and speculation.
30. As a parallel to its second ground as to "necessity" in relation to Article 5(1)(f) the claimants contend that the power to detain under para. 16 of Schedule 2 to the Immigration Act 1971 depends on "necessity" to attain the statutory purpose. Here detention was not necessary in order to examine them and in order to arrive at a decision since they had all been screened and there was no risk of their absconding. They could easily be examined after a grant of temporary admission and without being detained.
31. In international law the principle has long been established that sovereign states can regulate the entry of aliens into their territory. Even as late as 1955 the eighth edition of Oppenheim's International Law, at pp 675-676, para 314 stated that: "The reception of aliens is a matter of discretion, and every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory". Earlier in Attorney General for the Dominion of Canada v Cain  AC 542 at 546, the Privy Council in the speech of Lord Atkinson decided: