S & Ors v Secretary of State for the Home Department

S & Ors v Secretary of State for the Home Department

The Secretary of State acted unlawfully in including in his Discretionary Leave policy the power to refuse leave and place individuals on temporary admission without parliamentary sanction. The statutory scheme does not permit the creation of a new category of 'temporarily admitted' persons in these circumstances, and such a policy is arbitrary and incompatible with the requirements of the ECHR and the rule of law.

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
Judicial Review (appeal) / Court of Appeal Judgment on Appeal From Administrative Court
Outcome
Appeal dismissed
Legal Topics
Discretionary Leave, Temporary Admission, Article 3 ECHR, Immigration Policy, Statutory Interpretation
Immigration Law Human Rights Law Administrative Law Discretionary Leave Temporary Admission Article 3 ECHR Immigration Policy Statutory Interpretation

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Parties

S and Others

Claimants/respondents

Secretary of State for the Home Department

Defendant/appellant

Procedural Posture

Judicial Review (appeal) / Court of Appeal Judgment on Appeal From Administrative Court

Legal Issues

  1. 1 Whether the Secretary of State's policy allowing refusal of discretionary leave and imposition of temporary admission was lawful
  2. 2 Whether the Secretary of State had statutory authority to place persons entitled to discretionary leave on temporary admission
  3. 3 Whether the impugned policy provisions were arbitrary and incompatible with ECHR requirements

Ratio Decidendi

The Secretary of State acted unlawfully in including in his Discretionary Leave policy the power to refuse leave and place individuals on temporary admission without parliamentary sanction. The statutory scheme does not permit the creation of a new category of 'temporarily admitted' persons in these circumstances, and such a policy is arbitrary and incompatible with the requirements of the ECHR and the rule of law.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the impugned parts of the Discretionary Leave policy are unlawful is upheld
  • Secretary of State to pay respondents' costs on an indemnity basis