Appellant v Defendant
Factual and Procedural Background
The Appellant, a 31-year-old national of The Country, entered The State clandestinely on 27 November 2000 and immediately claimed asylum. He was placed on temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971, a status that in law treats him as not having entered The State. The Defendant refused the asylum claim on 29 January 2001 and, on 5 February 2001, served notice of intended removal as an illegal entrant. An adjudicator dismissed the Appellant’s appeal on 9 August 2001, finding he could safely return to The Region.
Because no secure route of return to The Region had been identified, the Appellant sought exceptional leave to enter (“ELE”), which the Defendant finally refused on 3 May 2002, extending temporary admission instead. The Appellant applied for judicial review. On 29 July 2002 Judge Judge Crane held that continued temporary admission had become unlawful and that the refusal of ELE was inadequately reasoned, ordering reconsideration but staying his order pending appeal.
While the appeal was pending, Parliament enacted section 67 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), deemed always to have been in force, expressly authorising long-term temporary admission in situations such as the Appellant’s. The Court of Appeal (Judges Judge Kennedy, Judge Chadwick and Judge Mance) allowed the Defendant’s appeal on 3 April 2003, holding that section 67 retrospectively validated the continuing temporary admission. The Appellant now appeals to the House of Lords.
Legal Issues Presented
- Whether, on 3 May 2002, power existed under paragraphs 16 and 21 of Schedule 2 to the Immigration Act 1971 to continue the Appellant’s temporary admission despite the absence of an imminent route of removal.
- If no such power existed, whether the court ought to compel the Defendant to grant, rather than merely reconsider, exceptional leave to enter.
- Whether the Defendant’s refusal of ELE was unlawful for want of adequate reasoning.
- (Raised below but rendered academic) Whether section 67 of the 2002 Act operates retrospectively to validate the Appellant’s temporary admission.
Arguments of the Parties
Appellant's Arguments
- The Appellant was no longer “liable to detention” because removal was not realistically achievable within a reasonable time; therefore paragraph 21 could not authorise continued temporary admission.
- In the absence of lawful temporary admission, the Defendant was obliged to grant ELE.
- Even if a discretion remained, the Defendant failed to give adequate reasons for refusing ELE.
Defendant's Arguments
- A person remains “liable to detention” whenever the statutory power to detain exists, even if detention would be an unreasonable course; consequently paragraph 21 always permitted temporary admission.
- Section 67 of the 2002 Act merely clarified the pre-existing law, but if necessary operated retrospectively to validate the Appellant’s status.
- The refusal of ELE was a lawful exercise of a broad statutory discretion; no exceptional circumstances justified its grant.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| B v The Hospital [1999] 1 FLR 106 |
An individual remains “liable to be detained” under the Mental Health Act 1983 even when not actually detained. |
Used as an analogy to show that “liable to be detained” in immigration law covers situations where detention power exists but is not exercised. |
| R v Governor of The Prison, Ex p Individual A [1984] 1 WLR 704 (“Hardial Singh”) |
Detention must not continue for longer than is reasonable and only while removal remains realistically achievable. |
Recognised as limiting the exercise of detention powers but not their existence; distinguished from the present case. |
| In re Individual B [1995] Imm AR 311 |
Applied the Hardial Singh principles to lengthy immigration detention. |
Cited to show consistent judicial treatment of detention power as subject to reasonableness in application, not existence. |
| R (I) v The State [2003] INLR 196 |
Further application of the Hardial Singh approach. |
Relied upon for the same distinction between existence and exercise of detention power. |
| Individual C v Superintendent of The Detention Centre [1997] AC 97 (“Tan Te Lam”) |
Detention ceases to be lawful when removal is no longer achievable at all. |
Distinguished; in Tan Te Lam removal was impossible, whereas here a prospect—however delayed—remained. |
Court's Reasoning and Analysis
Existence of the power to detain. The House drew a clear line between (i) the existence of the statutory power to detain under paragraph 16(2) of Schedule 2 and (ii) the reasonableness of its exercise. A person is “liable to be detained” whenever the statutory conditions for detention are met, even if it would be unreasonable actually to detain him at that moment. The word “pending” in paragraph 16 means simply “until”, not “imminent” or “impending”.
Application to the Appellant. Because the Defendant remained committed to removing the Appellant and some prospect of removal persisted, the statutory power to detain had not lapsed. Consequently the Appellant was lawfully “liable to detention” and could be granted temporary admission under paragraph 21. The Hardial Singh line of authorities was held to regulate only whether continued actual detention is reasonable, not whether the underlying power survives.
Effect of section 67 of the 2002 Act. Although the Court of Appeal had relied on section 67, the House concluded that the provision was “unnecessary”: the pre-existing statutory scheme already authorised long-term temporary admission. The retrospective operation of section 67 therefore required no determination.
Challenge to refusal of ELE. ELE is intended to be exceptional. Parliament had expressly provided temporary admission as the ordinary alternative to detention. In that context, the Defendant’s reasons for refusing ELE were sufficient; no exceptional features compelled a different result.
Holding and Implications
HOLDING: APPEAL DISMISSED.
The order of Judge Crane is set aside, and the Appellant remains on temporary admission. The House’s decision confirms that an individual remains “liable to be detained” so long as removal is the statutory objective and remains practicable at some future time, even if immediate detention would be unreasonable. The ruling reinforces the legality of long-term temporary admission as an alternative to detention, without setting new precedent beyond the clarification of existing statutory powers.