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LAW REPORT: Jail lawful for asylum seekers

Secretary of State for the Home Department and another v Khan and others. Court of Appeal (Lord Justice Leggatt, Lord Justice Otton and Sir Ralph Gibson).

3 February 1995.

Asylum seekers who have entered the country illegally may lawfully be detained pending the determination of their claims.

The Court of Appeal unanimously allowed an appeal by the Home Secretary and the Immigration Officer against the order of Mr Justice Dyson (Independent, 20 January 1995) who granted writs of habeas corpus to secure the release of the four respondents, Rehmat Khan, Parmjeet Singh Virk, Inderpal Singh and Pal Taggar, who had been detained under paragraph 16 of Schedule 2 to the Immigration Act 1971.

All four admitted they were illegal immigrants, Khan obtaining by deception leave to enter as a visitor from Pakistan, the other three arriving clandestinely from India; but all of them claimed political asylum before they were detained.

None of their applications had yet been determined by the Home Secretary. In each case they were sent a notice from the Immigration Officer saying they were liable to be detained under paragraph 16 and would be removed from the UK in due course.

Schedule 2 to the 1971 Act provided by paragraphs 8 to 14 for an immigration officer or in some cases the Home Secretary himself to give directions for the removal of persons, including illegal entrants, who had been denied leave to enter. By paragraph 16(2): "A person in respect of whom directions may be given under 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."

But by section 6 of the Asylum and Immigration Appeals Act 1993: "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 respondents argued, and the judge accepted, that section 6 prohibited an immigration officer from giving directions for removal under paragraphs 8 to 14 once a claim for political asylum had been made and until the Home Secretary had dealt with it, and because he had not dealt with the respondents' claims there was no power to detain them under paragraph 16(2).

The appellants acknowledged that section 6 protected an asylum seeker against being removed or required to leave, but argued it did not exclude the power to detain under paragraph 16(2).

David Pannick QC, Robert Jay and Steven Kovats (Treasury Solicitor) for the appellants; Alper Riza QC and Arthur Blake (Maliks, Manchester), Sibghatullah Kadri QC and Terence Gallivan (Cohen Rhodes, Leeds) for the respondents.

LORD JUSTICE LEGGATT said the application of Schedule 2 to the respondents was demonstrable. They were illegal entrants who had not been given leave to enter or remain in the UK. By force of paragraph 16(2), pending the giving of directions for their removal, they might be detained, just as pending deportation the person concerned might be detained while the appeal process was being exhausted even though no deportation order could be made pending appeal.

Nothing in section 6 of the 1993 Act prevented any of the respondents from being persons in respect of whom directions might be given. What it prevented was the giving of directions for removal while the applications for asylum were outstanding. The effect of the applications for asylum was merely to protract the period during which, in consequence of the Home Secretary's intention to give directions for their removal, the respondents were liable to be detained.

If and when their applications for asylum were granted, they would cease to be persons in respect of whom directions might be given, and the power to detain them would lapse.

Paul Magrath, Barrister