COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(His Honour Judge Wilkie QC)
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
| THE QUEEN|
(on the application of “I”)
|- and -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
A Robb Esq (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 29th May 2002
(SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
Lord Justice Simon Brown:
“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 …”
“Our client has been in detention on this basis [ie, under paragraph 2(3)] since January 2001 with no prospect of any removal taking place. He remains in detention indefinitely, as currently the Secretary of State is not removing nationals to Afghanistan, and the resumption of removals does not appear to be imminent. Accordingly, our client remains in detention pending his removal, despite the fact that the Secretary of State has no intention of enforcing this removal. It is argued that therefore paragraph 2(3) cannot justify his continued detention.”
“It is not true that we have no intention of enforcing [the appellant’s] removal. We are, in fact, actively exploring a number of options for removing him and other failed asylum seekers to Afghanistan through neighbouring countries. The process entails discussions and negotiations with the countries concerned. We shall continue to review his case regularly, as we do in all detained cases, but we are satisfied that there are good prospects for carrying out his removal within a reasonable time period.”
“(1) Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention … of a person against whom action is being taken with a view to deportation or extradition.”
(i) Re Hardial Singh  1 WLR 704
“Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained … pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. 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. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.”
(ii) Re Wasfi Suleman Mahmod  Imm AR 311
“While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on.”
He expressed himself “entirely satisfied” that whatever would have been “a reasonable period for this man’s continued detention … has certainly now been exceeded” and ordered his immediate release by habeas corpus.
(iii) Tan Te Lam -v- Tai A Chau Detention Centre  AC 97
“The principles enunciated by Woolf J in the Hardial Singh case  1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain ‘pending removal’ their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.”
“What section 13D(1A) does is to provide expressly that, in deciding whether or not the period is reasonable, regard shall be had to all the circumstances including (in the case of a person detained pending his removal from Hong Kong) ‘the extent to which it is possible to make arrangements to effect his removal’ and ‘whether or not the person has declined arrangements made or proposed for his removal.’ Therefore the subsection is expressly based on the requirement that detention must be reasonable in all the circumstances (the Hardial Singh principle) but imposes specific requirements that in judging such reasonableness those two factors are to be taken into account.”
“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.”
“23. The current position with respect to removal to Afghanistan is as follows.
24. There are certainly no direct international flights between the United Kingdom and Afghanistan.
25. If the claimant is prepared to return voluntarily to Afghanistan, arrangements can be made for his return via the International Office for Migration (IOM). Although the IOM has facilitated voluntary returns to Afghanistan in the past, the IOM is not currently able to return people to Afghanistan. However, there is a target of early summer for the resumption of such voluntary returns.
26. The British Government is planning negotiations with the neighbouring countries to facilitate enforced returns to Afghanistan. The planning of those negotiations and the negotiations themselves are very sensitive and it may jeopardise the success of those negotiations to reveal more details at this stage. However, I can say that it is hoped that arrangements for enforced and voluntary removal will be in place by early Summer.”
“4. There are currently no direct international passenger flights from the United Kingdom to Afghanistan. However, there are direct flights to Afghanistan from other countries, notably Pakistan and the United Arab Emirates.
5. The position in relation to forced returns is that the British Government has been endeavouring to negotiate agreements with countries neighbouring Afghanistan that would enable removals to take place through the auspices of these countries. The negotiations are sensitive and to reveal details of what has taken place would jeopardise the success of the negotiations. Government officials have visited Afghanistan and have had talks with the representatives of the interim Government there, as well as various NGOs based in the country. In addition, talks have also taken place with similar officials in the neighbouring countries and the talks are on-going, with further talks and visits scheduled to take place next month.
6. If the appellant is prepared to return voluntarily to Afghanistan, then arrangements can be made to return him there via the [IOM]. The IOM has resumed returns recently after they were suspended for a time earlier in the year. Several persons referred to the IOM by the Government recently have been successfully returned to Afghanistan. The respondent assists the IOM in making the requisite administrative arrangements to carry out voluntary returns and meets the costs if required.
7. I would mention that voluntary returns can be negotiated also through the Afghan Embassy in the United Kingdom. The embassy is now issuing passports to Afghan citizens and encouraging voluntary returns. Arrangements for such returns are made via the IOM. The IOM has in place a fixed route in respect of voluntary returns, and as far as the timescale for the logistical arrangements is concerned, this is approximately two-three weeks. Again, the respondent is willing to assist, if necessary, with the administrative arrangements and pay the costs.”
“if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised.”
“46. The position as far as paragraph 2(3) of Schedule 3 is concerned is, or may be, different [from that under article 5(1)(f), a point which, as I have already indicated, is not pursued on the appeal]. The test formulated by the Divisional Court in Hardial Singh is: must it be apparent to the Secretary of State that he is not going to be able to operate machinery provided for removing persons within a reasonable time? The Secretary of State is not, it seems to me, in a position to say that they will be able to remove him within any particular period of time, let alone one that is reasonable.
47. It seems to me also that Mr Bentley in his letter of 28th January somewhat overstated the position in saying that there was a reasonable prospect that he would be removed within a reasonable time. What Mr Bentley is saying is that the Secretary of State is working to try to effect a mechanism by which the machinery for removal may be operated, and hopes that by early summer that will be in place. I accept that these efforts are bona fide and substantive, and not merely a ritual going through the motions. There is no expectation nor is there a reasonable prospect, but there is a hope. It seems to me that standing those findings of fact, it is not open to me to say that presently it must be apparent to the Secretary of State that he is not going to be able to operate the machinery provided within a reasonable time. The Secretary of State seems, on the face of it, to be stating that a reasonable time is the summer of this year. There is a broad concurrence between that view and the hesitant view I have expressed that the end of his nominal sentence may constitute some kind of watershed.”
(i) Risk of absconding and re-offending
“The period which is reasonable will depend on the circumstances of the particular case.”
The likelihood or otherwise of the detainee absconding and/or re-offending seems to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee’s removal abroad.
(ii) The appellant’s refusal to accept voluntary repatriation
(iii) The appellant’s asylum claim and appeal
Lord Justice Mummery:
Lord Justice Dyson:
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 the reasonable diligence and expedition to effect removal.