COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE TOULSON
| THE QUEEN ON THE APPLICATION OF A
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Nigel Giffin QC (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 17-18 July 2007
Crown Copyright ©
Lord Justice Toulson :
"Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom…"
"Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom…"
"If granted bail I am confident that he will make every effort to remain here, including, if he believes it necessary to achieve that objective, absconding, and removing or disabling any electronic device designed to assist in locating him. In short, he has no motive to comply with bail conditions which will only last until his eventual removal and every reason not to."
He also noted that the probation officers' reports in 2003 indicated a high risk of re-offending sexually.
"If self-induced detention is to be the ground, and in this case the sole ground, to justify detention, then the alternatives that are open to the detainee must be a relevant consideration. In this case, although, of course, he was unable to satisfy the high standard required to show a case for asylum as a refugee or in connection with his human rights under the European Convention, he is a man who has now been out of his homeland for more than 11 years, since he was 19 ˝ years old."
"Putting all these factors for and against together and marrying them to the principles set out by Dyson LJ at paragraph 48 of I, I conclude that from 3 December 2004, which was the date of the first review following this claimant's refusal to accept voluntary removal up to 30 June 2006, his detention was unlawful because of its sheer length, the impossibility during that period of achieving removal, and the misleading statements which misled decision makers both inside and outside the department. I have also borne in mind the fact that from July 2005, so I was informed during the hearing, the additional, albeit by no means fool-proof, safeguard of electric tagging has been available as a result of the implementation of section 36 of the Asylum and Immigration [(Treatment of Claimants, etc.)] Act 2004. The admittedly powerful argument on self-imposition is not, in my judgment, sufficient to displace the other factors."
1. On the judge's finding, A was determined to avoid complying with the order for his deportation "by hook or by crook", and if at liberty he would take whatever steps were necessary to achieve that ambition, including by absconding and removing or disabling any electronic tag.
2. There was not only a high risk of A absconding if he were at liberty, but also a high risk to the public from re-offending.
3. Throughout the relevant period transport to Somalia was available at no cost to A, the only obstacles being his wilful refusal to do as required by the deportation order made under s 5 and the unwillingness of any carrier to transport him without his consent.
4. In those circumstances it was within the power of the Home Secretary, and a lawful exercise of that power, to keep A in detention "pending his removal or departure" from the UK; the resulting loss of liberty to A was self-induced.
"Given, as stated, that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period."
Implicit in this passage was the recognition, in a case where there had been a lengthy period of administrative detention and the Home Secretary had no more than a hope of being able to remove the deportee within the coming months, that it might be lawful to continue to detain him for "an indeterminate further period" if the risk of absconding and re-offending was such as to justify it.
"What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention."
Refusal to return by consent
"In their Lordships' view the fact that the detention is self-induced by reason of the failure to apply for voluntary repatriation is a factor of fundamental importance in considering whether, in all the circumstances, the detention is reasonable."
"Clearly, of course, the position here is not as it was in Hong Kong where, because of the express provisions of the Immigration Ordinance 1981, it was regarded as "of fundamental importance" that the applicants' detention was "self-induced by reason of the failure to apply for voluntary repatriation". But that is not to say that the court should ignore entirely the applicant's ability to end his detention by returning home voluntarily."
However, he considered that the factor was of relatively limited relevance in the particular circumstances of I, since the option of voluntary repatriation only arose on the day before the hearing of the appeal.
"…In my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable."
He accepted that if it was right to infer from the refusal of voluntary repatriation that a detained person was likely to abscond on release from detention, then the refusal was relevant to the reasonableness of the duration of detention. But he said that:
"…The relevance of the likelihood of absconding, if proved, should not be over stated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake."
Relevance of A's reasons for not wishing to return to Somalia
The role of the court
"The Court of Appeal has decided to follow the universal practice observed by other European jurisdictions and to anonymise its judgments in cases involving asylum seekers. It is satisfied that the publication of the names of the appellants may create avoidable risks for them in the country from which they have come."
Lord Justice Longmore:
Lord Justice Keene:
"If a jailor could justify the detention of his prisoner by saying 'in my view, the facts necessary to justify the detention exist' the fundamental protection afforded by a habeas corpus would be severely limited. The court should be astute to ensure that the protection afforded to human liberty by habeas corpus should not be eroded save by the clearest words."
If the Secretary of State were to be entitled to determine what weight should be attached to, say, the risk of the detainee absconding if released, as compared to the weight to be attached to other factors, and so to decide whether the length of detention was reasonable, with the court only intervening if his decision was not one properly open to him, the erosion of the protection of human liberty referred to by Lord Browne-Wilkinson would be very substantial indeed.
"in a way which is incompatible with a Convention right." Section 6(1)
"The third question is whether, again assuming that the detention is lawful under domestic law, it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate: Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 58 and Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198, para 56."
"The claimant evinced then and evinces now a single objective, namely to stay in this country by hook or by crook. If granted bail I am confident that he will make every effort to remain here, including, if he believes it necessary to achieve that objective, absconding, and removing or disabling any electronic device designed to assist in locating him."
That puts this case into a very different category from that of Hardial Singh and R (I), in neither of which was there a finding of any significant risk of absconding. Indeed there was an important difference of views on the degree of such risk in R (I), with Mummery LJ seeking in his dissenting judgment to uphold the lawfulness of detention because he concluded that the detainee would, if released, "probably abscond" (paragraph 41) and Dyson LJ not being satisfied that he would abscond and ruling that the detention was unlawful. This difference serves to highlight the significance in any particular case of the degree of risk of absconding. In the present case it was patently a very high risk. In those circumstances the very objective of the detention order was likely to be undermined.