LAW REPORT: Asylum seekers unlawfully held / Regina v Immigration Offic er, Ex parte Khan and others Queen's Bench Division (Mr Justice Dyson), 16 Janu ary 1995

Illegal immigrants who apply for political asylum cannot be detained under paragraph 16 of Schedule 2 to the Immigration Act 1971 pending the determination of their applications.

Mr Justice Dyson granted four applications for writs of habeas corpus to secure the release of immigrants detained under paragraph 16 of Schedule 2 to the Immigration Act 1971.

The applicants were illegal entrants who sought political asylum. They were detained pending the determination by the Home Secretary of their asylum applications. They applied for writs of habeas corpus on the ground that their detention was unlawful. They argued that under section 6 of the Asylum and Immigration Appeals Act 1993, once a claim for political asylum was made, the giving of directions for removal is prohibited until a decision on the claim, and therefore there was no power to detain the applicants under paragraphs 8 to 16 of Schedule 2 to the 1971 Act.

Alper Riza QC and Arthur Blake (Maliks, Manchester); Sib-ghatullah Kadri QC and Terence Gallivan (Cohen Rhodes, Leeds) for the applicants; Robert Jay and Steven Kovats (Treasury Solicitor) for the immigration officer.

MR JUSTICE DYSON said that the prohibition in section 6 of the 1993 Act on removal or requiring an asylum seeker to leave was intended to prevent both the Home Secretary and the immigration officer from doing anything that would be contrary to the Convention relating to the status of refugees. The effect of section 6 of the 1993 Act was that while a claim for asylum was being considered no removal directions might be given under paragraph 8 or 9 of Schedule 2 to the 1971 Act.

A person was someone in respect of whom removal directions might not be given if there was currently no power to give directions in respect of him, even though it was possible that there would be such power at some time in the future. The words of section 3(10) of the 1993 Act did not amount to a clear statutory acknowledgement that an asylum seeker could also be detained under paragraph 16(2).

The purpose of detention under paragraph 16(2) was to aid removal. Parliament had decided to prohibit removal pending the Home Secretary's decision on the claim for asylum. There were other powers of detention available to the authorities. There was the power under paragraph 16(1) pending a decision to grant or refuse leave to enter. In the case of illegal entrants, the criminal law could be invoked and arrests effected. The immigration officer had no power to detain the applicants under paragraph 16(2)since none of the applications was a person in respect of whom directions could at that time be given for his removal. The power to detain was in order to enable removal to be effected. If at the time of the detention there was no power to require the applicant to leave, then there was no power to detain.

Turning to the power to detain under paragraph 16(1), it was a prerequisite of a lawful detention under paragraph 16(1) that the detainee might be required to submit to an examination under paragraph 2. When an illegal entrant who had already entered theUnited Kingdom applied for political asylum, he was not applying for leave to enter because he had already entered. There was nothing in the legislation which required an application for political asylum by an illegal entrant who had already entered to be treated as an application for leave to enter, rather than for leave to remain.

The Act drew a clear distinction between those seeking leave to enter and those seeking leave to remain. The power to examine under paragraph 2 was exercised by the immigration officer in relation to the need for leave to enter.

Accordingly, there was no power to require detention of any of the applicants under paragraph 16(1) because none of them could be required to submit to an examination under paragraph 2. The applicants were entitled to the relief sought.