European Court of Human Rights

 

 

Communicated on 15 October 2014

 

FOURTH SECTION

Application no. 59727/13
Liban Mohamud AHMED
against the United Kingdom
lodged on 19 September 2013

STATEMENT OF FACTS

The applicant, Mr Liban Mohamud Ahmed, is a Somali national who was born in 1977 and lives in London. He is represented before the Court by Mr Z. Yazdani of Deighton Pierce Glynn Solicitors, Mr R. Husain QC of Matrix Chambers, and Ms L. Dubinsky of Doughty Street Chambers.

A.  The circumstances of the case

1.  The applicant’s immigration history

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

The applicant and his family left Somalia for the Netherlands in 1992. At the time he was fifteen years old. After claiming asylum, it would appear that the family were given a period of leave to remain in the Netherlands. During this period the applicant married an ethnic Somali and a son was born in 1994.

The applicant’s family, including his father, travelled to the United Kingdom in 1998. The applicant initially remained in the Netherlands but on 11 December 1999 he arrived in the United Kingdom, where he claimed asylum. In doing so, he provided the immigration authorities with a false name and a false immigration history in order to avoid being sent back to the Netherlands. Although the asylum application was unsuccessful the applicant was granted exceptional leave to remain until 2004.

The applicant has ten criminal convictions over the period from 16 November 2001 to 4 August 2005.

On 16 November 2001 he received a custodial sentence of two years and six months following conviction of two counts of robbery.

On 2 February 2004 he was convicted of using a vehicle while uninsured, failing to provide a specimen for analysis, resisting or obstructing a constable and failing to surrender to custody. He was fined, disqualified from driving for twenty-four months and given a twelve-month community rehabilitation order which was later varied to four months’ imprisonment.

On 21 April 2004 he was convicted of using disorderly behaviour or threatening, abusive or insulting words likely to cause harassment, alarm or distress, possessing an offensive weapon in a public place and failing to surrender to custody at an appointed time and was sentenced to four months’ imprisonment.

He was sentenced to a further three months’ imprisonment on 3 September 2004 when he was convicted of taking a motor vehicle without consent, using a vehicle while uninsured, driving a motor vehicle with excess alcohol, driving while disqualified and making off without paying.

On 9 December 2004 he was convicted of theft and using racially threatening, abusive or insulting words and behaviour likely to cause harassment, alarm or distress and was sentenced to detention for one day.

He was again sentenced to detention for one day following a conviction for theft on 10 February 2005.

On 9 May 2005 he was convicted of having an article with a blade or which was sharply pointed in a public place and of failing to surrender to custody at an appointed time. He was sentenced to eight weeks’ imprisonment.

He was sentenced to six weeks’ imprisonment on 15 July 2005 after he was convicted of theft and two counts of failing to surrender to custody at an appointed time.

On 8 August 2005 he was sentenced to five months’ imprisonment when he was convicted of driving a motor vehicle with excess alcohol, driving while disqualified, using a vehicle while uninsured and using a vehicle with no test certificate.

Finally, in December 2007 he was convicted or a public order offence and of failing to surrender. He was sentenced to four and a half months’ imprisonment.

On 29 January 2008 the applicant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused an application for indefinite leave to remain in the United Kingdom.

The applicant lodged an appeal against the decision to deport him on 1 February 2008.That decision was dismissed on 30 June 2008 and his appeal rights were exhausted on 8 July 2008.

On 2 June 2009 removal directions were set for 17 June 2009. However, they were cancelled on 16 June 2009 when the applicant made an application to this Court (application no. 26023/09), which granted an interim measure under Rule 39 of the Rules of Court.

The applicant made further representations against removal on 10 June 2010. Those representations were treated as an application for revocation of the deportation order, but on 17 November 2010 the Secretary of State refused to revoke the order. However, following an appeal by the applicant, the Secretary of State withdrew the refusal decision on 12 July 2011.

2.  The applicant’s detention

On 8 February 2008, when the applicant had served half of his final custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order against him. The Secretary of State signed the deportation order on 29 October 2008 and he was thereafter detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending his removal from the United Kingdom.

The applicant’s detention was reviewed monthly and the review forms set out the reasons for maintaining detention. The form from July 2009 includes the following statement in reference to the Rule 39 indication: “Whilst this means that enforced removal is not possible, [the applicant] could reduce the length of time he spends in detention by withdrawing voluntarily”. A similar point features in some, if not all, of the later forms. The form for February 2010 notes that “Rule 39 ECHR is a barrier to removal but I note that FRS [Facilitated Return Scheme] is an option that should be explored to the full to expedite his removal from the UK”. Likewise, the form for July 2010 states that “[t]he length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject”. Furthermore, the form from December 2010 indicated that the applicant “could minimise his time in detention by withdrawing [the application to the ECHR] and taking up FRS which is offered each month” and that he could “end his detention by volunteering to return (with or without FRS) at any time”.

Applications for bail were refused on 9 November 2009, 21 April 2010 and 14 July 2010 as the Immigration Judges were not satisfied that the applicant would answer to any conditions set. On 9 November 2009 the Immigration Judge further noted that although the applicant had been in detention for a lengthy period, “the most recent period of detention is on account of delays with his own application to the European Court of Human Rights”.

On 19 November 2010 the applicant filed a claim for judicial review, contending that his ongoing detention was unlawful. Permission was granted on 17 June 2011 but a further application for bail was refused.

On 13 July 2011, some two weeks after the Court ruled in Sufi and Elmi v. the United Kingdom, the applicant was granted bail.

A hearing took place on 7 October 2011. Pursuant to the principles set down by the High Court in R. v. Durham Prison Governor ex parte Hardial Singh [1984] 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 principles (a) on or after 16 June 2009 when the Court granted an interim measure under Rule 39 of the Rules of Court; (b) on or immediately after 16 June 2010 when he applied to revoke the deportation order; or (c) at all points after the revocation refusal on 17 November 2010.

In a judgment dated 14 November 2011 the Administrative Court dismissed the claim. It noted that in deciding whether or not there was a realistic prospect that deportation would take place within a reasonable time, the risk of absconding or re-offending were “of paramount importance” but neither risk could be regarded as a “trump card”. Moreover, the fact that the period of detention occurred while the applicant was pursuing an appeal or comparable judicial process would also be a highly relevant factor, especially if there was a risk of absconding or reoffending.

The court noted that the applicant in the present case had six convictions for absconding and the Immigration Judges had consistently concluded that he was a significant abscond risk. Likewise, the Secretary of State’s detention reviews had characterised the risk of the applicant reoffending as “high”.

At the time the Court indicated the interim measure under Rule 39 of the Rules of Court, it was awaiting a lead judgment on returns to Mogadishu (Sufi and Elmi v. the United Kingdom) and it was clear that there would be no resolution of the applicant’s claim - and the interim measure would therefore not be lifted - before that judgment was handed down. However, the Administrative Court observed that at the time the interim measure was indicated, there was uncertainty about when that judgment could be expected. Moreover, while the applicants in Sufi and Elmi would have had a reasonable to good prospect of success, a positive outcome had not been inevitable. Consequently, the Administrative Court did not accept that there was not, at the time the interim measure was indicated, a realistic prospect of removing the applicant within a reasonable time.

Furthermore, the court did not accept that by the time of the applicant’s application for a revocation order, a reasonable period had already expired or that there was no realistic prospect of deportation within a reasonable time. In addition, it observed that the Secretary of State had been entitled to take two weeks to consider the applicant’s personal situation in light of the judgment in Sufi and Elmi. It therefore did not consider his continued detention up to 13 July 2011 to be unlawful.

The applicant was granted permission to appeal to the Court of Appeal. On appeal, he restated his arguments concerning the Hardial Singh principles which had been advanced in the court below. In addition, he submitted that the detention was vitiated by two public law errors that bore directly on the decision to detain: first, following the indication of the interim measure the Secretary of State had failed to take any reasonable steps to acquaint herself with when it might be lifted; and secondly, that the detention was maintained on the unlawful basis that the applicant could reduce the length of time in detention by withdrawing his application to the Court and returning voluntarily to Somalia. Finally, the applicant argued that his detention was in breach of Article 5 of the Convention.

With regard to the Hardial Singh ground, the Court of Appeal stated that there could be a realistic prospect of success without it being possible to specify or predict the date by which, or the period in which, removal can reasonably be expected to occur. It accepted that at the time of receipt of the Rule 39 indication in the applicant’s case, although it was not possible to say when the proceedings before the Court would be concluded, there was nonetheless a reasonable prospect of their being concluded and of removal being effected within a reasonable time. Likewise, the Court of Appeal saw no reason to differ from the overall conclusion of the lower court on the lawfulness of the applicant’s detention at the time of the application for revocation of the deportation order or after the judgment in Sufi and Elmi was handed down, although Lord Justice Elias dissented on one point only: he believed that the period of two weeks which elapsed following the judgment in Sufi and Elmi before the applicant was released from detention was not reasonable in all the circumstances.

With regard to the second ground of appeal, the court accepted that if the applicant were able to show that the decisions to maintain his detention were vitiated by public law errors in the sense described in Lumba (see Domestic Law section below) he would succeed in establishing that the detention was unlawful and would have a claim in false imprisonment. However, the court found that it could reasonably be inferred from the facts that the Secretary of State was aware at all times of where matters stood in relation to the relevant proceedings before this Court. Moreover, while the court accepted that it might have been unrealistic at the time to have pursued the question of voluntary return with the applicant, pursuit of the question did not mean that he was being pressured to withdraw his application to the Court or that he was being penalised for pursuing his legal remedies. So long as his detention had not exceeded a reasonable period with reference to the Hardial Singh principles, it could properly be pointed out to him that voluntary return would reduce the length of detention. What could not properly be done was to treat the refusal of an offer of voluntary return as a relevant factor in determining whether a reasonable period had been exceeded. Although some of the passages in the review forms were not very happily expressed, they did not involve any legal error. Moreover, as the same conclusion was reached regardless of whether or not reference was made to the question of voluntary return, it appeared that the applicant’s refusal of this offer played no material part in the assessment of whether detention should be maintained.

Finally, the court found that Article 5 § 1(f) of the Convention added nothing of substance in the present case. In reaching this conclusion, it rejected the applicant’s assertion that Mikolenko v. Estonia, no. 10664/05, 8 October 2009 was authority for the proposition that the lack of a realistic prospect of deportation within a defined period rendered detention under Article 5 § 1(f) unlawful.

B.  Relevant domestic law and practice

1.  The Hardial Singh principles

Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 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.”

2.  R (A) v. Secretary of State for the Home Department [2007] 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

3.  Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12

In the case of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] 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.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention: first, that the domestic law governing administrative detention of immigrants for the purposes of expulsion was not sufficiently precise, accessible and foreseeable in its consequences to meet the standard of lawfulness and, as such, it lacked the quality of law necessary to deprive him of his liberty; and secondly, that his administrative detention was not, throughout its duration, with a view to deportation.

The applicant further complains under Article 34 of the Convention that the Government treated his application to the Court and his failure to withdraw that application as justification for the prolongation of his administrative detention.

 

QUESTIONS TO THE PARTIES

1.  Did the applicant’s deprivation of liberty from 8 February 2008 to 13 July 2011 fall within the ambit of Article 5 § 1 (f) of the Convention? In particular, could it be said at all times that he was detained for the purpose of being deported from the United Kingdom and that “action was being taken with a view to deportation”?

 

2.  Did the total length of the applicant’s detention (forty-one months) exceed that reasonably required for the purpose pursued under Article 5 § 1(f)?

 

3.  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 violate the requirements of “lawful” detention under Article 5 § 1?

 

4.  Did the authorities’ reference in the detention reviews to the applicant’s application for an interim measure under Rule 39 and to the possibility open to him to withdraw his application to the Court and to return to Somalia voluntarily amount to an unjustified interference by the State authorities with the applicant’s exercise of the right of petition under Article 34 of the Convention in the proceedings before the Court in relation to the present application?