Communicated on 15 January 2015
Application no. 54318/14
against the United Kingdom
lodged on 28 July 2014
STATEMENT OF FACTS
The applicant, J.M., is an Iranian national, who was born in 1950 and lives in Stockton-on-Tees. He is represented before the Court by Ms S. Willman of Deighton Pierce Glynn Solicitors, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom in 1972. He was granted indefinite leave to remain on 25 August 1988.
The applicant has a history of mental illness. In or around 1974, he was diagnosed with manic depression/bi-polar disorder and admitted to hospital. He received out-patient treatment and medication until 1990. Between 1990 and 1994 he was detained on a number of occasions under sections 3 and 4 of the Mental Health Act 1983. Although the applicant’s mental health condition is largely controlled through medication, he remains at risk of relapse.
The applicant accumulated a number of criminal convictions over the period from 3 July 1996 to 16 November 2004.
On 3 July 1996 he was convicted of indecent assault on a female under the age of sixteen years. He was later sentenced to nine months’ imprisonment.
On 17 September 1999 he was convicted of six counts of obtaining pecuniary advantage by deception and was sentenced to twelve months’ imprisonment.
On 14 June 2002 he was convicted of indecent assault on a female over the age of sixteen years and was later sentenced to nine months’ imprisonment with an extended sentence of two years.
Finally on 16 November 2004 he was convicted of four counts of indecent assault and one of sexual assault. He received a total sentence of four years and two months’ imprisonment, together with a requirement that his name be added to the Sex Offenders’ Register for an indefinite period. He was released from prison on 24 August 2007.
On 1 September 2007 the applicant was detained pursuant to the Secretary of State’s powers under paragraph 2(3) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 pending the making of a deportation order against him. A deportation order was signed and served on him on 3 September 2007 and he was thereafter detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending his removal from the United Kingdom. On an unknown date in 2007 the Secretary of State also revoked the applicant’s indefinite leave to remain in the United Kingdom.
The applicant lodged an appeal against the Secretary of State’s decision to deport him. That appeal was dismissed on 7 February 2008. His application for reconsideration and a High Court review was subsequently refused.
The applicant unsuccessfully applied for bail on 20 October 2008, 5 November 2008, 15 December 2008, 28 April 2009, 9 September 2009 and 12 January 2010.
Meanwhile on 25 September 2009 the applicant’s legal representatives submitted an application for asylum, the factual basis of which has not been disclosed. The Secretary of State treated this as an application to revoke the deportation order against him and refused his submissions on 5 March 2010.
The applicant was released from detention on immigration bail by order of a court on 24 March 2010. On 19 July 2011 he was convicted of sexual assault and was sentenced to two years and six months’ imprisonment. Upon the expiration of his criminal detention on 19 October 2012, his detention was maintained under immigration powers.
The applicant was refused immigration bail on 16 July 2013.
On 8 August 2013 the applicant commenced judicial review proceedings challenging his ongoing immigration detention. Pursuant to the principles set down by the High Court in R. v. Durham Prison Governor ex parte Hardial Singh  1 WLR 704 (see section on domestic law below), the Secretary of State cannot lawfully detain a person pending removal for longer than a reasonable period and, if it becomes apparent that the deportation cannot be effected within a reasonable period, the detention will become unlawful even if the reasonable period has not yet expired. The applicant claimed that his detention was in breach of the Hardial Singh principles, of Article 5 of the Convention, and of the Secretary of State’s own policy on assessing the risk of re-offending as set out in the ‘Enforcement Instructions and Guidance’ (see section on domestic law below). In his grounds of appeal he did not explicitly complain that his first period of detention had been unlawful; rather, he argued that it was an important factor to be considered in assessing the reasonableness of his second period of detention. He additionally claimed damages for unlawful detention.
On 19 September 2013 the applicant was granted permission to apply for judicial review on the grounds (i) that it was far from clear that he was removable within a reasonable time; and (ii) that the Secretary of State, in maintaining the applicant’s detention, had taken into account his risk of reoffending.
On 10 January 2014 the applicant’s legal representatives lodged an application for revocation of the deportation order against him. It would appear that a decision by the Secretary of State remains outstanding.
On 4 February 2014 the Administrative Court dismissed the applicant’s judicial review claim following a renewed oral hearing; refused him permission to appeal on further unspecified grounds; and refused permission to appeal to the Court of Appeal.
At the hearing counsel for the applicant argued that, because he was unable to obtain a passport or an emergency travel document from the Iranian authorities, and diplomatic relations between Iran and the United Kingdom had ceased, there was no realistic prospect that he be removed to Iran. Therefore, his detention for that purpose was unlawful. In addition, counsel for the applicant argued that the Secretary of State had failed to act with reasonable diligence and expedition to effect his removal; that the two periods of immigration should be treated as one when considering the length of detention; and that in all the circumstances, it had been unreasonable.
Counsel for the Secretary of State for the Home Department acknowledged that she had thus far been unable to remove the applicant owing to a lack of travel documentation. However he contended that the applicant had been uncooperative; that aided by members of his family, the applicant should have obtained the necessary documentation to secure his removal; and that owing to “fast-moving” developments in diplomatic relations between the United Kingdom and Iran (the details of which were too sensitive and confidential to be disclosed), there was a realistic prospect that the applicant would be removed in the near future. Counsel also submitted that the issue before the court was the lawfulness of the second period of detention. However, he conceded that the earlier period of detention was relevant to the prospects of removal.
The court had regard to the relevant principles of domestic law set out in R v. The Governor of Durham Prison, ex parte Hardial Singh  1 WLR 704 and the guidance given by the Court of Appeal in R (A) v. Secretary of State for the Home Department  EWCA Civ 804; (MH) v Secretary of State for the Home Department  EWCA Civ 1112; and WL (Congo) v. Secretary of State for the Home Department  EWCA Civ 111 (see domestic law section below).
Owing to the particular issues concerning the return of undocumented Iranians, the court paid particular attention to the applicant’s history regarding documentation, both in terms of his efforts and those of the Secretary of State. It noted in particular that diplomatic relations between the United Kingdom and Iran had ceased in November 2011, the practical consequence being that the Iranian authorities were not prepared to cooperate with the issuing of travel documents in respect of deportations. Therefore, since November 2011 only an Iranian who held a valid national passport or previously issued travel document could be removed from the United Kingdom to Iran.
With particular regard to the applicant’s conduct, the court found, inter alia, that he presented as a difficult person for the Secretary of State to process as he was confused and inconsistent as to the whereabouts of his passport or birth certificate; that this had contributed to the delay in processing his deportation; that he had not been deliberately uncooperative; that in light of psychiatric evidence, it seemed likely that his perceived lack of cooperation was, at least in part, a feature of his mental illness; that his family and his legal representatives could not be criticised for not taking more pro-active steps to obtain documentation from Iran or the Iranian consulates, nor should they be blamed for the lack of success in obtaining such documents; that the applicant had been entitled to refuse a voluntary/facilitated return to Iran since he had genuine fears for his safety in Iran and had a long-established family and private life in the United Kingdom; that the validity of his claim that forcible return to Iran would constitute a breach of his human rights was a matter for the Secretary of State and if necessary, the Tribunal, to determine; that his refusal to return to Iran voluntarily should not be treated as justification for detaining him, nor as evidence of a lack of cooperation; and that although a prosecution of the applicant under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 for failing without reasonable excuse to comply with the Secretary of State’s requirement to take specified action to enable a travel document to be obtained had been set in motion, it had not been pursued (no date or further clarification has been provided in this regard).
In addition the court stated that in assessing the “reasonableness” of the applicant’s second period of detention, regard had to be had to the fact that the Secretary of State had been seeking to deport him since 2007 and that she had previously detained him for some thirty months. The court also accepted the applicant’s submission that in assessing the “reasonableness” of his detention it should take into account, in his favour, the fact that detention had been especially difficult because he was a mentally-ill man of sixty-three years old; and that he was detained in a prison and not an immigration detention centre where he would have been subject to a more relaxed detention regime.
Notwithstanding those factors, the court held that the applicant had a significant criminal record including convictions for sexual offences and offences involving dishonesty; that he had offended whilst on licence and on immigration bail, which was indicative of a lack of respect for conditions imposed by the authorities; that it had been reasonable for the Secretary of State to detain the applicant in October 2012 in light of his history and the view that identification documentation could be obtained to effect his removal; that there was incentive to, and reasonable concern about, the applicant absconding; that Offender Assessment System reports from January 2012 and May 2013 had determined that the applicant posed a low risk of re-offending and a medium risk of harm to the public (notably to young women travelling alone); that the Secretary of State had been entitled to take the view that such a risk was a factor weighing in favour of detention pending deportation rather than release; that it had been reasonable for the Secretary of State to take into account the risk that the applicant would commit further dishonesty offences if released, particularly as he would have very limited resources; that the proposed conditions for release did not sufficiently safeguard against future risk; and that his continued detention was not unreasonable.
The court went on to hold, inter alia, that the Secretary of State had made considerable efforts to obtain travel documentation from the Iranian Embassy during the period that diplomatic relations were in existence; that the Secretary of State had acted with reasonable diligence and expedition to effect removal in the very difficult circumstances that pertained in relation to Iran; that it had been reasonable for the Secretary of State to have asked the applicant to explore all options open to him in obtaining the necessary documentation and for her to assume that there was some realistic prospect of success; but that it was now apparent that such avenues would not bear fruit. Nonetheless, the court was persuaded by Counsel for the Secretary of State and found that there were ongoing improvements in diplomatic relations between the United Kingdom and Iran which were likely to facilitate the return of undocumented Iranians in the future; and that there was a realistic prospect of removal within a reasonable period, notably months.
In its concluding remarks, the court remarked that bearing in mind the length of time the applicant had already been detained, it would be unreasonable for detention to continue any longer if a diplomatic agreement was not reached between the United Kingdom and Iran in the forthcoming months. The court also stated that it had “expressly advised the [applicant] to consider another judicial review claim, if the hoped-for agreement with Iran on returning deportees does not materialise, within months. In those circumstances, an appeal to the Court of Appeal on the current factual position is likely to be out of date by the time it is listed for hearing.”
The applicant did not apply directly to the Court of Appeal for permission to appeal owing to advice from his legal representatives; the fact that he would be unlikely to secure legal aid; the fact that the Administrative Court’s assessment had been largely factual; and the fact that the Court of Appeal would only hear appeals on points of law.
The applicant was released on 2 July 2014 having been granted immigration bail subject to conditions.
B. Relevant domestic law and practice
1. United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance
Chapter 55.1.1 of the United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance provides that:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used.”
Chapter 55.1.2 goes on to state that:
“In any case in which the criteria for considering deportation action (the “deportation criteria‟) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.”
Chapter 55.1.3 continues:
“Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list here, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release.”
The list entitled “Crimes where release from immigration detention or at the end of custody would be unlikely” include sexual and indecent assault and the case of any person who is currently on the Sex Offenders’ Register.
Chapter 55.10 provides that:
“Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
· those suffering from serious mental illness which cannot be satisfactorily managed within detention (in Criminal Casework Directorate cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act;
In the case of the following individuals, the normal presumption will be that they should remain in, or be transferred to, prison accommodation and they will be transferred to an IRC only in very exceptional circumstances: Enforcement Instructions and Guidance
· National Security – for example, where there is specific, verifiable intelligence that a person is a member of a terrorist group or has been engaged in or planning terrorist activities.
· Criminality – those detainees who have been involved in serious offences involving the importation and/or supply of class A drugs and/or those convicted of sexual offending involving a minor.”
The wording of the mental health concession changed on 26 August 2010. Prior to this date, the concession read
“those suffering from serious medical conditions or the mentally ill – in Criminal Casework Directorate cases, please contact the specialist Mentally Disordered Offender Team.”
2. The Hardial Singh principles
Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh  WLR 704:
“i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii. The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv. The Secretary of State should act with reasonable diligence and expedition to effect removal.”
3. R (A) v. Secretary of State for the Home Department  EWCA Civ 804
In R (A) the Court of Appeal found as follows:
ʺI accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making.
A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.ʺ
4. R (MH) v Secretary of State for the Home Department  EWCA Civ 1112
In R (MH) the Court of Appeal found as follows:
“I have found this an anxious case. The period of 38 months’ detention held by Sales J to have been lawful is a very long period indeed for administrative detention pending deportation. Detention for that length of time merits the most anxious scrutiny.
I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. In my view Mitting J was not purporting to do that but was simply asking himself the questions "by when?" and "on what basis?" for the purposes of his own consideration of the case before him. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was "some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be" (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released.”
5. Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department  UKSC 12
In the case of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department  UKSC 12 the Supreme Court briefly considered the Hardial Singh principles. In his leading judgment, which was accepted by the majority of the court, Lord Dyson found that in assessing the reasonableness of the length of the period of detention, the risk of re-offending would be a relevant factor. In this regard, he noted that if a person re-offended, there was a risk that he would abscond either to evade arrest or, if he was arrested and prosecuted, that he would receive a custodial sentence. Either way, his re-offending would impede his deportation. He also considered that the pursuit of legal challenges by the foreign national prisoner could be relevant. However, he considered the weight to be given to the time spent on appeals to be fact-sensitive. In this regard, he noted that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one.
Lord Dyson further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, he warned against the danger of drawing such an inference in every case. On the contrary, he considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not. Where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect. If return was possible, but the detained person was not willing to go, it would be necessary to consider whether or not he had issued proceedings challenging his deportation. If he had done so, it would be entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings, unless they were an abuse of process, and his refusal to return voluntarily would be irrelevant. If there were no outstanding legal challenges, the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of State to continue to detain until deportation could be effected, otherwise the refusal would justify as reasonable any period of detention, however long.
The applicant complains under Article 5 § 1(f) of the Convention that his detention exceeded that reasonably required for the purposes of Article 5 § 1 (f) for at no stage was there any sensible prospect of his removal from the United Kingdom. He also complains that the domestic law governing administrative detention of immigrants for the purposes of expulsion was unregulated; not subject to automatic judicial supervision; and not sufficiently clear, precise and foreseeable in its application for Article 5 purposes.
QUESTIONS TO THE PARTIES
1. Did the applicant’s second period of detention from 19 October 2012 to 2 July 2014 (almost twenty-one months) exceed that reasonably required for the purpose pursued under Article 5 § 1(f)?
2. Did the domestic legal regime of administrative detention applied to the applicant satisfy the requirements inherent in Article 5 § 1 as to the quality of the national law authorising such detention? In particular, did the lack of any time limits on administrative detention, taken alone or in conjunction with the absence of any automatic judicial oversight of such detention, violate the requirement of “lawful” detention under Article 5 § 1 in this sense?