S & Ors v Secretary of State for the Home Department [2006] EWCA Civ 1157 (04 August 2006)

S & Ors v Secretary of State for the Home Department [2006] EWCA Civ 1157 (04 August 2006)

The Secretary of State acted unlawfully in introducing policy provisions allowing refusal of discretionary leave and imposition of temporary admission for persons entitled to discretionary leave under ECHR obligations, as this status has no Parliamentary sanction and is incompatible with the statutory scheme. Only Parliament can create such a new category; the Secretary of State cannot do so by administrative policy.

Citation
[2006] EWCA Civ 1157
Parties
Claimants/respondents: S and Others; Defendant/appellant: Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
04 August 2006
Procedural Posture
Appeal From Administrative Court (judicial Review) / Court of Appeal (civil Division) Judgment
Outcome
Appeal dismissed
Legal Topics
Discretionary Leave, Temporary Admission, Article 3 ECHR, Immigration Act 1971, Policy Lawfulness, Refugee Convention Article 1 F(b)
Immigration Law Human Rights Law Administrative Law Discretionary Leave Temporary Admission Article 3 ECHR Immigration Act 1971 Policy Lawfulness +1 more

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Parties

S and Others

Claimants/respondents

Secretary of State for the Home Department

Defendant/appellant

Procedural Posture

Appeal From Administrative Court (judicial Review) / Court of Appeal (civil Division) Judgment

Legal Issues

  1. 1 Whether the Secretary of State's policy allowing refusal of discretionary leave and imposition of temporary admission is lawful without Parliamentary sanction
  2. 2 Whether the Secretary of State can create a new status of 'temporary admission' for persons entitled to discretionary leave under ECHR obligations
  3. 3 Whether the impugned policy provisions are compatible with the statutory scheme and the rule of law

Ratio Decidendi

The Secretary of State acted unlawfully in introducing policy provisions allowing refusal of discretionary leave and imposition of temporary admission for persons entitled to discretionary leave under ECHR obligations, as this status has no Parliamentary sanction and is incompatible with the statutory scheme. Only Parliament can create such a new category; the Secretary of State cannot do so by administrative policy.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the impugned parts of the Secretary of State's Discretionary Leave policy (August 2005) are unlawful
  • Secretary of State must grant respondents six months' discretionary leave within seven days of the order being sealed