European Court of Human Rights

 

 

 

FOURTH SECTION

Application no.47750/12
Nirav ManghubhaiPATEL
against the United Kingdom
lodged on 30 July 2012

STATEMENT OF FACTS

 

The applicant, Mr Nirav Manghubhai Patel, is an Indian national, who was born in 1985.He is currently detained at Morton Hall Immigration Removal Centre.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Immigration history

The applicant arrived in the United Kingdom on 27 December 2009 on a student visa valid until 26 May 2011.

On 10 September 2011, the applicant was arrested by police on suspicion of theft and of being an over-stayer. He was subsequently bailed and given temporary admission. Failing to adhere to the conditions imposed with temporary admission and to answer to police bail, the applicant was re-arrested on 9 November 2011. He was sentenced to eight months’ imprisonment for burglary on 24 January 2012. Upon release from his criminal detention, the applicant was immediately detained under immigration powers on 27 March 2012.

2.  The United Kingdom Border Agency’s attempts to obtain an Emergency Travel Document

An initial application for an emergency travel document (ETD) for the applicant was submitted to the Indian High Commission (IHC) by the United Kingdom Border Agency (UKBA) on 5 January 2012. The applicant was accepted into UKBA’s facilitated return scheme on 8 March 2012, having indicated a wish to return voluntarily to India.

On 14 March 2012, an ETD application was re-sent to the returns liaison office of the IHC(“RLO”: whose responsibilities include the facilitation of the documentation process for returnees).

On 13 April 2012, the applicant was informed by UKBA that his case had been included on the “regional priority list” and was “regularly being reviewed”. To submit a request as to the status of a submitted ETD application, and for a review of the case to be carried out, it must be submitted for review using the weekly regional priority list.)

On 20 April 2012, the RLO advised that they had not received the ETD application.

There is no record in correspondence between UKBA and the applicant that the issue was resolved or that the ETD application was re-sent.

A further progress check by UKBA on the applicant’s ETD was made on 22 May 2012; however, it does not appear that any response was received from the IHC.

While these progress checks were being made, the applicant applied for immigration bail. TheFirst-tier Tribunal (Immigration and Asylum Chamber) refused this application on 31 May 2012.

On 1 June 2012, the applicant was informed by UKBA that his case had been again included on the regional priority list.

A further progress check on the applicant’s ETD was made on 12 June and, on 21 June 2012, UKBA again raised the applicant’s case with the IHC without success. Similarly, a progress check made on 28 June 2012 appears to be without resolution.

The applicant’s case was discussed at a meeting between senior UKBA officials and the IHC on 5 July 2012. The UKBA requested a full response by 12 July 2012 but, as of 1 August 2012, had yet to receive one.

On an unknown date, the applicant made a second application for immigration bail. On 17 July 2012, the First-Tier Tribunal (IAC) refused this application on the grounds that there were substantial grounds to believe that if released, that the applicant would abscond.This belief was based on inter alia, the applicant’s history of absconding and of failing to answer police bail, his use of deception in past dealings with UKBA, and the fact that he had no outstanding applications before the Secretary of State and therefore little incentive to remain in contact with the authorities.

On 27 July 2012, UKBA provided the applicant with contact details for the IHC so that he could contact them directly with regards to his ETD.

B.  Relevant domestic law and practice

1.  Immigration Detention

The power to detain an individual liable to administrative removal (or someone suspected to be such a person) is contained in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (as applied by section 10(7) of the Immigration and Asylum Act 1999). Paragraph 16(2) states:

“If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 or 12 to 14, that person may be detained under the authority of an immigration officer pending a) a decision whether or not to give such directions; b) his removal in pursuance of such directions.”

Section 62 of the Nationality, Immigration and Asylum Act 2002 introduced a free-standing power for the Secretary of State to authorise detention in cases where the Secretary of State has the power to set removal directions.

The United Kingdom Border Agency’s Enforcement Instructions and Guidance, Chapter 55 also deals with the issue of detention and states that:

“To comply with Article 5 and domestic case law, the following should be borne in mind:

a) the relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with Article 5 and would be unlawful in domestic law (unless one of the other circumstances in Article 5(1)(a) to (e) applies);

b) the detention may only continue for a period that is reasonable in all the circumstances for the specific purpose;

c) if before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and

d) the detaining authority (be it the immigration officer or the Secretary of State), should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is).”

2.  Immigration Bail

Schedule 2 to the Immigration Act 1971 provides for an individual detained under immigration powers to apply for bail.

Section 11(2) of the Tribunals, Courts and Enforcement Act 2007 (“the TCEA”) grants any party to a case a right of appeal with permission to appeal granted either by the First-tier Tribunal (FTT) or the Upper Tribunal (UT) on an application made by that party.

The right of appeal is on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision (TCEA, section 11(1)). By operation of section 11(5) TCEA and the Tribunals, Courts and Enforcement Act 2007 (Miscellaneous Provisions) Order 2010, a decision made in connection with a bail application is an excluded decision.

COMPLAINTS

The applicant complains that his continued detention by the United Kingdom immigration authorities amounts to ill-treatment contrary to Article 3 of the Convention.

He also complains under Article 5 of the Convention that his continued detention under immigration powers is unlawful.

The applicant complains under Article 8 that, in failing to obtain a travel document from the Indian High Commission to facilitate his return to India, there has also been a violation of his right to family and private life in India.

 

 




QUESTIONS TO THE PARTIES

 

1.     Have the applicant’s deportation proceedings been pursued with due diligence by the UK authorities?

 

2.     If there is no realistic prospect of emergency travel documentation being issued soon by the Indian High Commission, the applicant can properly be said to be a “person against whom action is being taken with a view to deportation”?

 

3.     Has the length of the applicant’s detention exceeded that reasonably required for the purpose pursued under Article 5 § 1(f)?