Afgan Hijackers win Court of Appeal

Tuesday 9 May 2006

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This high profile case has been widely reported in the media. The important legal points to arise from the judgement are as follows:

  1. The scheme of the Immigration Act 1971 does not permit the Home Office to use 'temporary admission' as an alternative to granting the claimants leave to enter the United Kingdom. To determine that it was 'inappropriate' to grant leave amounted to the same thing as refusing leave to enter and therefore the decision was in defiance of the decision of the Panel of Adjudicators. In the alternative, if the decision was not in law a 'refusal of leave to enter', it was still an unlawful use of the powers to grant temporary admission.
  2. The Home Office had deliberately delayed giving effect to the decision of the Adjudicators in order to give themselves time to devise a revised policy (the policy at the time of the claimants success before the Adjudicators was to the effect that they be given a period of six months' leave) under which they could refuse leave to enter and therefore avoid the judicial decision of the Adjudicators. This was a very clear case of an abuse of power causing unfairness to the claimants. It was made worse given that it was sanctioned at the 'highest level'.
  3. The Home Office had accepted that the denial of leave to the claimants interfered with their Article 8 ECHR rights (private and family life ie they could not work, attend university, travel, they had to report and had residence conditions etc). The Judge held that there was a violation of their rights because this interference was not in accordance with the law under Article 8(2) ECHR. This was because the policy under which the Home Office interfered with the protected right gave ministers an 'unfettered administrative discretion' to refuse leave where he thought it was 'appropriate to do so'. That was not sufficient to meet the requirements of transparency and certainty under the ECHR.

You can see the summary of Mr Justice Sullivan's conclusions in the judgement which the learned Judge himself handed down here:

Afghans JR Judgment

You can see the full judgment here:

Afghan full judgment

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