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Hijackers have a right to live in Britain
By Philip Johnston
(Filed: 11/05/2006)
Nine Afghan asylum seekers who hijacked a plane at gunpoint to get to Britain should have been admitted to the country as genuine refugees and allowed to live and work here freely, the High Court ruled yesterday.
In a decision that astonished and dismayed MPs, the Home Office was accused of abusing its powers by failing to give the nine formal permission to enter Britain, in breach of their human rights.
The hijack at Stansted
A police marksman walks past the hijacked plane during the February 2000 stand-off at Stansted
It is the second time human rights laws have worked to the advantage of the hijackers.
Two years ago, attempts to eject them from the country were thwarted when an immigration court said this would expose them to the risk of inhuman or degrading treatment in breach of Article 3 of the European Convention.
The Afghanis argued that their lives would be in danger - even though in late 2001 British troops had helped topple the Taliban from whom they said they were fleeing.
The hijackers, armed with handguns and explosives, took control of a Boeing 727 on an internal flight from Kabul in February 2000 and ordered the plane to be flown to Britain.
It was directed to Stansted in Essex, where the hijackers gave themselves up after a 70-hour stand-off with police and the SAS.
They were later jailed for various offences but the convictions were quashed in 2003 on the grounds that the law of duress had not been properly applied at their trial.
After the Home Office subsequently failed to have them deported in 2004, they were granted temporary admission to the country for themselves and their families.
Charles Clarke, the then home secretary, declined to give them full refugee status, fearing this would send out the wrong message and be seen as a "licence to hijack".
But Mr Justice Sullivan ruled yesterday that this was beyond his powers and failed to follow correct legal procedures. It also amounted to an unwarranted delay in implementing the earlier ruling that they could not be deported and were, therefore, bona fide refugees.
The judge ordered the Home Office to pay legal costs on an indemnity basis - the highest level possible - to signify his "disquiet and concern".
So far, the whole affair, including legal fees, asylum processing and benefits for the families, has cost the taxpayer an estimated £20 million to £30 million.
The ruling, which came six years after Jack Straw, a previous home secretary, told MPs that the Afghanis would not be allowed to stay in Britain to show that "hijacking would not pay", was greeted with disbelief at Westminster.
David Cameron, the Conservative leader, said: "It is frankly wrong when we are doing so much as a country, and when our Armed Forces are doing so much, to make Afghanistan a safer country and a stable county, that decisions like these are made."
He added: "That is really what people will be thinking up and down this country. We have done so much to help stabilise Afghanistan. Why then do we have decisions like this?"
Sir Andrew Green, the chairman of Migrationwatch UK, said Britain should ditch the European Convention on Human Rights.
"This is not an abuse of ministerial power - it is an absence of common sense in the legal system," he added.
"We have 5,000 troops in Afghanistan, but these hijackers are to be given the right to stay indefinitely in Britain with full access to the welfare state."
Tony McNulty, the Home Office minister, said the department was considering an appeal and it still intended to remove the hijackers when it was deemed safe to do so.
"It is common sense that to deter hijacking and international terrorism, individuals should not be rewarded with leave to remain in the UK," he added.
Mr McNulty said the decision to grant the hijackers only temporary admission followed a change in policy whereby people excluded from international protection under the 1951 UN refugee convention should be not be allowed to stay "in the public interest".
But Mr Justice Sullivan said Parliament had not given the Home Secretary the power to adopt such an approach. It left the hijackers in a legal limbo, unable to work, with restrictions on their movements and dependent on state handouts for their livelihood.
"Such a policy is unlawful because it permits interference with an individual's rights under the European Convention on Human Rights 'otherwise than in accordance with the law'," the judge said. "It is difficult to conceive of a clearer case of 'conspicuous unfairness amounting to an abuse of power'."
The Home Office had engaged in "a transparent attempt to find a form of words that would enable the Home Secretary to defy the adjudicators' decision without having to acknowledge that he was doing so" and this policy had been authorised at "the highest level".
He added: "Lest there be any misunderstanding, the issue in this case is not whether the executive should take action to discourage hijacking, but whether the executive should be required to take such action within the law as laid down by Parliament and the courts.
"The entirety of the Home Secretary's conduct of this case deserves the strongest mark of the court's disapproval."
Rabinder Singh, QC, appearing for the hijackers, said the issue of deterrence had been met because all nine had substantially served prison sentences before being released by the appeal court. Two had been jailed for five years, with the seven others receiving sentences ranging from 27 to 30 months.
He said they had all had "a torrid time" since entering the country and were still suffering stress and anxiety-related ailments.
Of the 170 people on the plane, 89 returned voluntarily to Afghanistan and nearly 50 passengers, including 13 dependants, claimed asylum. The nine hijackers and 25 family members have been resettled in rent-free housing in west London and receive benefits.
There was a similar outcome to the hijacking in 1996 of a Sudanese Airbus en route from Khartoum to Jordan. Six Iraqis who forced the plane to land in London were jailed, but their sentences were later quashed and they have remained in the country with their families.
More than 20 years ago, three members of a gang that hijacked a Tanzanian airliner were allowed to stay in Britain after their release from prison.
