COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
| The Queen on the Application of M
|- and -
|Secretary of State for the Home Department
Parishil Patel (instructed by Treasury Solicitors) for the Respondent
Hearing dates: Tuesday 11 March 2008
Crown Copyright ©
Lord Justice Dyson:
The legal framework
"Where notice has been given to a person in accordance with regulations…of a decision to make a deportation order against him…he may be detained under the authority of the Secretary of State pending the making of the deportation order."
Detention pending deportation as interpreted by the case law
"It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"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".
At para 77, Keene LJ said that the risk of absconding "is a matter of the greatest importance, since if the person in question were to abscond and it were to prove difficult to trace him, the whole purpose of the deportation order would be frustrated."
"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."
"….As far as the question of reoffending is concerned, the absence of up to date reports on his likelihood of reoffending does not seem to me to be of much significance either way. It is not realistic for the Secretary of State to suggest that the claimant get his own assessment. Similarly, the absence of assessments other than the monthly reports, the quality of which the claimant questions, is not a matter for criticism either. When one looks at the persistence of these offences, it seems to me there is a risk of reoffending, and anyone who has any experience sitting, and seeing what the public think, in the Crown Court, would hesitate before viewing as less than serious, burglaries in dwelling houses at night. Moreover, it is clear from the sentencing remarks of the learned Recorder, that the claimant was not pleading guilty to an isolated act of burglary, he was engaged in a pattern of criminality, involving burglary and the other matters to which I referred."
"I bear in mind the submission made on the claimant's behalf about why one should, as it were, discount the fact that he has not expressed a willingness to return to Iraq. I bear those considerations in mind, and apply an appropriate discount. I also bear in mind the alternative options of restrictions and curfewing and tagging, and the fact that restriction orders can be quite severe in the terms which are imposed. I also bear in mind that the period of detention to date is now some 11 months, and is significantly longer than it was at the time that these proceedings were brought. But overall, having regard of all the circumstances in the case, I am quite satisfied that continued detention of the claimant is reasonably necessary for the purposes for which he has been detained, and for those reasons I dismiss this application and this case."
The grounds of appeal
The probation report dated 27 February 2008
"Mr Mamki highlighted how his attitude has changed given the intervention he received whilst serving his initial custodial sentence by completing the Enhanced Thinking Skills programme. However from liaison with the HMP establishments there is no evidence supporting completion of any offending behaviour programmes.
Mr Mamki's limited recall of the offences does pose a concern, he justifies his limited recollection by stating that a large amount of time has elapsed since he committed his offences. Given that he served two custodial sentences. Mr Mamki should be fully aware of his actions that led to his offending behaviour."
"Mr Mamki intends to reside with his sister if released and has provided me with the contact details of his family who reside at 6, Crown Court, 123 Park Road, London, NW8 7JH. I have contacted Mr Mamki's family members and left numerous phone messages for the family, however I have not received any response therefore unable to comment on the suitability of his proposed address."
"Mr Mamki felt positive about future opportunities to secure legitimate employment. He stated that his brother has offered him permanent work which would assist Mr Mamki's reintegration into the community. Again in an attempt to contact Jal Makai to verify Mr Mamki's intended employment to work for his brother's car rental company, I have not been successful."
"There are concerns with Mr Mamki's emotional well-being, he self reported to attempting to hang himself on two occasions last year due to the pressure of being detained. He stated he is currently on medication to treat both his depression and insomnia. Mr Mamki stated that these issues have been ongoing due to the threat of him being deported. Mr Mamki emphasised that he has resided in the England for the past 15 years and given the immense change in circumstances in his home town of Baghdad, he cannot contemplate how he will cope. Mr Mamki is evidently perturbed by the prospect of being returned to Iraq as he has no family ties within his birth country as his family reside in England. From reading the psychiatric report it confirms Mr Mamki's emotional instability and highlights that he has been assessed as a risk of self harm."
"In terms of a high risk of absconding I have no evidence to suggest this. When questioned about his offences regarding bail, he stated that he had failed to sign at the Police station on two occasions. From Mr Mamki's account he stated on the first occasion he was in hospital. Mr Mamki admitted that on the second occasion there was no adequate reason for his failure to attend apart from the distance to travel. Mr Mamki is fully aware of the consequences if he fails to comply with any conditions imposed by the Court.
I am aware that Mr Mamki has been subject to adjudications whilst detained however this information arrived after interviewing Mr Mamki therefore I was unable to challenge any concerns in behaviour during his detention. This raises concerns relating to the information Mr Mamki has provided as aforementioned Mr Mamki has emphasised throughout interview his large shift in attitude away from offending which is contradicted by his behaviour whilst being detained.
OASys is scored between 0-168, Mr Mamki's assessment has scored 55 supporting a MEDIUM risk of reoffending. In terms of who is at risk, members of public are at risk of Mr Mamki's offending behaviour based on his previous burglary offences, aggravated by the fact Mr Mamki attended the victims properties at night time. Mr Mamki's offences are evidently opportunistic therefore no particular potential victim can be identified and given the above criminogenic needs Mr Mamki's risk of reoffending as been assessed as MEDIUM.
In terms of risk of harm, Mr Mamki has no previous violent offending therefore his risk of serious harm is assessed as low. Mr Mamki is fully aware that his assessment of low risk of harm does not deter him from the psychological impact that his offending has had upon his victims.
Future risks where Mr Mamki's risk is likely to increase would be if Mr Mamki is struggling financially and is desperate to raise funds or if Mr Mamki feels pressured to raise funds due to period of unemployment and lack of family support.
A reduction in risk would be identified if Mr Mamki remains motivated and continues to address his triggers to his offending behaviour. Mr Mamki's raised awareness of the consequences and support from his partner and family are desisting factors to encourage a lower risk of reoffending. However as Mr Mamki's family have not returned any contact, these stabilising factors are in question and if released without any structure Mr Mamki will inevitably return to an offending lifestyle.
I must reiterate that Mr Mamki's risk could be managed in the community if the correct support structures were in place in terms of his goals of securing employment, stable accommodation and external support from family members but until this is verified by Mr Mamki's family he will still pose a MEDIUM risk of reoffending."
The brother's witness statement
"If my brother is released from detention he will reside with my sister where he will be surrounded by family. We are all extremely eager to have him back with us and will be doing everything we can to support him, help him readjust to normal life, and to keep him busy and motivated. I was previously able to offer him a job but unfortunately that is no longer available. The whole family will, however, do everything we can to help him find work. We will gather particularly closely around him, as we understand that he has had a very difficult time in detention and needs our love and support."
Detention review of 4 March 2008
Lord Justice Waller: