Home Secretary loses hijacker appeal

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The Independent Online

Home Secretary John Reid today lost his Court of Appeal battle over the legal power to take away the right of nine Afghan hijackers to work and enjoy other freedoms in the UK.

A QC had argued on his behalf at a hearing last week that, although the nine could not be deported because of their human rights, immigration law allowed him to impose "temporary admission" status on them and curb their freedom while they remained in the country.

But the Master of the Rolls, Sir Anthony Clarke, Lord Justice Brooke and Lord Justice Neuberger, announced their decision in London today, dismissing the Home Secretary's appeal against an earlier High Court ruling.

The nine Afghans hijacked a Boeing 727 on an internal flight in Afghanistan in February 2000 and forced the crew to fly to Stansted in Essex. They were fleeing the Taliban regime.

Although they were refused asylum, a panel of adjudicators ruled in 2004 that, under Article 3 of the European Convention on Human Rights, they could not be sent back to Afghanistan because their lives would be endangered.

In December 2001 all nine were convicted of hijacking, false imprisonment, possessing firearms with intent to cause fear of violence and possessing explosives.

In June 2003 their convictions were quashed by the Appeal Court, which found they had been acting under duress.

Following a public outcry over the nine being granted a "hijackers' charter", successive Government ministers attempted to restrict their rights.

They were eventually granted only temporary admission last November by the then Home Secretary Charles Clarke.

But the Home Office suffered an embarrassing High Court defeat in May this year when Mr Justice Sullivan ruled that it was unlawful under the 1971 Immigration Act to keep the nine on temporary leave.

The judge declared they were entitled to "discretionary leave" to enter and remain in the UK, subject to review every six months.

This allowed the nine to work, possibly claim state benefits, and support their families in the UK, even though they were not entitled to full refugee status.

In contrast, those subjected to temporary admission normally have to rely on state hand-outs, cannot work or obtain travel documents, but have to live where they are told, report to the police regularly and remain subject to detention at any time.

It was argued during the appeal hearing that the Home Secretary was entitled in law to have a policy of granting only temporary admission to failed asylum seekers who had been allowed to remain in the country on human rights grounds.

The nine have apologised to passengers on the flight they hijacked to Stansted for the fear they caused.

Reshad Ahmadi, Abdul Shohab, Abdul Ghayur, Taimur Shah, Nazzamuddin Mohammidy, Mohammed Kazin, Ali Safi, Mohammed Safi and Mohammed Showaib say they are educated people who do not want to "sponge" off the state.

In the written ruling of the court handed down today, Lord Justice Brooke said: "We commend the judge (Mr Justice Sullivan) for an impeccable judgment.

"The history of this case through the criminal courts, the immigration appellate authority and back into the civil courts has attracted a degree of opprobrium for carrying out judicial functions.

"Judges and adjudicators have to apply the law as they find it, and not as they might wish it to be."

He added: "So far as the powers of the Home Secretary are concerned, the challenges created by the respondents' presence in this country have been apparent ever since they landed here over six years ago.

"There has been ample time for the Home Secretary to obtain appropriate Parliamentary authority, if he wished to be clothed with the powers he gave to himself without parliamentary sanction in the August 2005 Asylum Policy Instructions."

Mr Reid said he would introduce new laws as soon as possible to deny leave to remain to the hijackers retrospectively.

He said: "I am disappointed that the Court of Appeal has dismissed the Home Office's appeal.

"The court has ruled that it is not open to me to deny leave to enter the United Kingdom to the Afghan hijackers, or people like them, whose presence we regard as undesirable.

"I continue to believe that those whose actions have undermined any legitimate claim to asylum should not be granted leave to remain in the UK.

"I therefore intend to legislate at the earliest opportunity to take new powers to deny people in this position leave to remain.

"I plan to bring forward legislation to do this as part of the early Bill to strengthen our immigration laws which I announced as part of the outcome of my review into rebuilding confidence in our immigration system."

A Home Office spokeswoman said the new legislation would address the general issue highlighted by the Afghan case rather than be specifically tailored to the nine individuals, but ministers would seek to make it retrospective to deny them leave.

The moves will be included in an immigration Bill expected early in the next session of Parliament, she added.