Nine Afghans who hijacked a flight to Britain have won their six-year battle for permanent status in the UK today after a judge accused the Government of "conspicuous unfairness" in its treatment of the asylum seekers.
The nine made worldwide headlines in February 2000 when they hijacked a Boeing 727 on an internal flight from Kabul and forced the crew to fly to Stansted to escape the Taleban.
Armed with guns and explosives, they held the plane at Stansted for 70 hours surrounded by police and SAS before giving themselves up.
Ever since, successive Home Secretaries - Jack Straw, David Blunkett and Charles Clarke - have resisted granting the nine discretionary leave to enter the UK fearing that to let them to live and work freely in Britain would amount to "a charter for future hijackers".
At issue in the High Court challenge was the failure of the Government to grant them formal permission to enter to UK as refugees, a question that had caused a serious clash between the ministers and the judiciary over human rights law.
The ruling means the nine men now have a more permanent status in Britain and can work, but they have not been classed as refugees and could still be returned to Afghanistan in the future, if it becomes safe for them.
Mr Justice Sullivan expressed his anger over the way the Government failed to follow correct legal procedures and "deliberately delayed" implementing an adjudication appeal panel’s decision from two years ago.
That decision in June 2004 said that under human rights law the nine could not be sent back to Afghanistan where their lives would be at risk.
The judge made an unprecedented order that the Home Office should pay legal costs on an indemnity basis - the highest level possible - to show his "disquiet and concern".
During the High Court hearing Rabinder Singh, QC, for the Afghans, argued the need to deter hijackers 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.
In his critical ruling, Mr Justice Sullivan said that the conduct of the home office deserved "the strongest mark of the court’s disapproval".
"It is difficult to conceive of a clearer case of conspicuous unfairness amounting to an abuse of power," he said.
"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."
At the time of the hijackings, the then Home Secretary, Jack Straw, promised that the hijackers would be deported "as soon as reasonably practicable" saying he was "utterly determined that nobody should consider that there is any benefit in hijacking."
However, the nine and their families have for years been living in the London area, with restrictions on their movements, and their presence resented by three Home Secretaries.
In December 2001 they were convicted of hijacking, false imprisonment, possessing firearms with intent to cause fear of violence and possessing explosives.
In June 2003 their convictions were quashed by the appeal court which found they had been acting under duress.
Little over a year later an immigration adjudication panel ruled that they could not be sent back to Afghanistan because it was "unsafe" and they would be at serious risk of harm.
Unable to deport them, the Government left them in limbo by failing to formally permit them to enter the country.
Tony McNulty, the Home Office Minister, said today the Government was disappointed with the ruling and was considering an appeal.
"It is common sense that to deter hijacking and international terrorism, individuals should not be rewarded with leave to remain in the UK," he said in a statement.
"The hijackers are not deemed to present a threat to the UK’s national security at present and it remains our intention to remove them as soon as it is possible to ensure that they can be returned in safety to Afghanistan."
Mr McNulty added that while the Home Office had feared allowing the nine men to live and work in Britain would amount to a "charter for future hijackers" this did not give the ministry a licence to ignore the judiciary.
"This 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."
Sir Alan Haselhurst, the Essex Conservative MP who represents Saffron Walden said that he thought it was a question of whether the law may have to be changed.
"I just don’t think that we should be party to anything which makes it seem that hijacking an aircraft is a way to freedom," he said.
"My constituents are entitled to say 'hang on a bit’. If hijacking is to be seen to be an option then we may see more of these aircraft coming into Stansted."
The cost to the taxpayer of supporting the hijackers - who could not work as they were subject to immigration restrictions, as well as ongoing court and legal proceedings has been estimated to be around £10 million.
Sir Andrew Green, chairman of think-tank Migrationwatch, said Britain needed to re-examine its adherence to 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 said.
"The judge was interpreting the European Convention but with a ridiculous result. 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."
