ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Sales
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE ETHERTON
| The Queen (on the application of MH)
|- and -
|Secretary of State for the Home Department
for the Appellant
Alan Payne (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 17-18 June 2010
Crown Copyright ©
Lord Justice Richards :
The claimant's background circumstances
"16. On 4 April 1996 the Claimant received his first criminal conviction, a caution for shoplifting. On 17 October 1996 he was sentenced to 30 months detention for robbery. He developed an alcohol abuse problem.
18. Upon his release from custody, the Claimant found himself in difficult circumstances. The absence of authorisation for him to remain in the UK meant that he did not have access to social assistance and benefits. This seems to have increased the risk of the Claimant re-offending.
19. The Claimant received further custodial sentences. On 13 March 1998 he was sentenced to three months detention for possession of a bladed article in a public place and shoplifting. On 30 September 1998 he was sentenced to six weeks detention for taking a vehicle without consent and driving dangerously. On 18 December 1998 he was sentenced to eight months detention for burglary and theft. On 7 April 1999 he was sentenced to 21 days custody for threatening behaviour, failure to surrender to bail, shoplifting and threatening to damage property. On 18 June 1999 he was sentenced to three years detention for robbery. On 24 January 2001 he was sentenced to six months detention for burglary and theft of about £5 from a café, together with 503 days for breach of the licence conditions under which he had been released from his last offence.
20. By Home Office letter dated 20 November 2001 the Claimant was informed that the Secretary of State was, in light of his offending, considering his deportation to Somalia and inviting representations from him on that issue. The solicitors then representing the Claimant (Stanley & Co) responded by letter dated 18 December 2001, in which they made representations against his deportation.
21. It appears that no decision was taken to deport the Claimant at this stage. By letter of 21 May 2002 to the Home Office, Stanley & Co pressed for the Claimant's application for asylum to be considered as soon as possible, and pointed out that he was having to sleep rough as his welfare benefits had been suspended due to his inability to provide his social security office with proof of his immigration status. They asked for the Claimant to be granted indefinite leave to remain in the UK. By letters dated 30 May 2002, 4 November 2002 and 28 January 2003 Stanley & Co continued to press for a decision to be made on his application. The material before the court did not contain any reply to these letters. Consideration was given within the Home Office to a proposal that the Claimant be granted leave to remain in the UK for a further three years, but it was not approved.
22. Instead, shortly after the Claimant's release from custody in respect of his latest offence, he committed an offence of theft by stealing a watch from a jacket on 17 August 2003 (for which he was arrested and released on bail) and an offence of burglary on 29 August 2003, while on bail, involving entry to a hotel room and theft of a camera and suitcase. He pleaded guilty to these offences and was sentenced in the Crown Court on 14 January 2004 to a total of 15 months imprisonment.
26. Under the sentence imposed in January 2004, the Claimant was due to be released on 16 April 2004. The question therefore arose whether the Claimant should then be deported. On 9 April 2004 the Claimant was served with notice that the Secretary of State had decided that it was conducive to the public good to make a deportation order against him, that he proposed to give directions for the Claimant's removal to Somalia and informing him of his right of appeal against the decision."
The feasibility of returns to Somaliland
"30. It is necessary to distinguish between enforced returns and voluntary returns to Somaliland. An enforced return is a return effected without the Claimant's co-operation. A voluntary return is a return effected with the Claimant's co-operation in relation to the means used to implement his removal and transportation to Somaliland. In both cases, the consent of the local authorities in Somaliland is required. The availability of these two types of return has varied over time.
32. On 4 July 2003 a Memorandum of Understanding was signed by the UK Government and the Somaliland authorities dealing with removals from the UK to Somaliland ("the 2003 MOU"). In order to secure their agreement to the return of an individual to Somaliland, the Somaliland authorities required as much information about the individual as possible, including regarding the clan history of the individual (cumulatively referred to as 'bio-data' in the papers), in order to allow them to be satisfied that the individual had the requisite degree of connection with Somaliland to warrant return there. Their usual position is that to be accepted for return to Somaliland an individual needs to come from a clan with a sizeable representation there, and/or to have been born there (or have parents who were born there) and/or to have family currently residing there. The first stage of the information gathering process under the 2003 MOU involved the completion of a bio-data form. Such a form would be forwarded to the Somaliland authorities, who would have a period of time under the MOU in which to confirm whether or not an individual was acceptable for return there. The evidence is that the scrutiny applied by the Somaliland authorities is stringent, and that the necessary bio-data is difficult to obtain without the co-operation of the individual concerned.
32. The position adopted by the Secretary of State was that the 2003 MOU provided a real prospect of removal of the Claimant to Somaliland, which had been thwarted by the failure of the Claimant to co-operate in the provision of sufficient bio-data to be put to the Somaliland authorities to persuade them to accept his return to Somaliland. The Secretary of State's position in May 2007 was that the 2003 MOU meant that there was 'a real prospect of the Claimant being removed to Somaliland within a reasonable timescale', so that the Claimant remained properly detained at that time ."
"38. Summarising the position as it emerges from the evidence before this court so far as concerns returns to Somaliland between 16 April 2004 and 21 August 2007 (the period of the immigration detention of the Claimant): (i) there were reasonable grounds for the Secretary of State to think that the Somaliland authorities were in principle willing to accept individuals for return to Somaliland if adequate bio-data showing a sufficient connection with Somaliland were provided in respect of them ; (ii) the Somaliland authorities applied stringent standards in assessing whether sufficient bio-data were provided, and in practice a substantial degree of co-operation in provision of such bio-data was required from the individual concerned, but on this evidence it would be going too far to say that either the 2003 MOU or the 2007 MOU was a dead letter and of no practical effect (accordingly, on the evidence before me, I do not share the assessment of the 2003 MOU by Calvert-Smith J in R (A) v Secretary of State for the Home Department referred to above; I am fortified in that conclusion by the view of Davis J in R (Abdi) v Secretary of State for the Home Department  EWHC 1324 (Admin) Abdi No. 2 - at  that at no stage on the material before him was there a complete impasse on returns to Somalia, including Somaliland); (iii) voluntary removals to Somaliland were possible throughout the period; (iv) enforced removals to Somaliland were possible only up to 20 August 2004 and were only again in contemplation from May 2006 and actually possible from late July 2006 onwards."
The history of the claimant's immigration detention
"47. It is thus clear, even on the Claimant's own evidence, that there was a degree of uncooperativeness on his part at least at certain points in the course of his immigration detention in relation to provision of bio-data required for transmission to the Somaliland authorities. I do not consider that either of the explanations offered by the Claimant for his lack of co-operation in relation to the two specific incidents referred to is a good one .
48. In fact, these instances of lack of co-operation by the Claimant do not stand alone. There is a substantial body of contemporaneous evidence that the Claimant was deliberately withholding his co-operation from the deportation process ."
In thirteen sub-paragraphs the judge then set out the evidence to which he referred, relating to events between February 2005 and May 2007. I shall pick out only a few of those events in what follows.
"We have reached something of an impasse in this case. The ETD [Emergency Travel Document] is not the only barrier to removal given that we do not return to Somalia against the individual's will. We need to make a decision on this case soon if it becomes clear that [MH] will not co-operate with the documentation process and that therefore removal cannot be effected, we will need to consider release on tagging. Before we do so could you please check with Colnbrook as to whether [MH] is likely to co-operate with the disclaimer."
"Given his propensity to re-offend and his overall record of non-compliance, [MH] is unlikely to co-operate with any conditions of temporary release. The removal issue is difficult but [MH] comes from Somaliland and there has been significant progress in routing which means that removal will be a realistic prospect within the next few months."
The proposal was accepted, with the comment that ministers should be alerted and that the submission should contain an update on the improving access to Somalia (sic), consider prosecution for non-compliance, and balance the case of detention with the option of tagging.
The legal framework
"46. [T]he following four principles emerge:
(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.
47. Principles (ii) and (iii) are conceptually different. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired."
"50. As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight. Mr Robb [counsel for the Secretary of State] submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature which weighed heavily with Mummery LJ.
51. I cannot accept that the first of Mr Robb's reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But 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. If Mr Robb were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter however long, provided that the Secretary of State was doing his best to effect the deportation.
52. I turn to Mr Robb's second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance, namely the likelihood that the detained person will abscond if released."
"43. There is no dispute that the word 'pending' in schedule 3, paragraph 2(2) and paragraph 2(3) simply means 'until' . However, the Home Secretary's exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case.
44. Those principles were first established by Woolf J in his judgment in Hardial Singh ... which has been cited with approval in subsequent cases . After stating those principles, Woolf J continued:
'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.'
45. In some later judgments that sentence has been treated as a third principle. It seems to me that it is really a facet or consequence of the first and second. Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
"54. 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."
"58. The period of A's detention after he would otherwise have been entitled to release at the end of his custodial sentence was lengthy. However, throughout that period it would have been possible for him to be transported to Somalia, if he had not refused to go, and there was moreover some prospect of the Home Secretary being able to carry out his enforced removal, although there was no way of predicting with confidence when this might be. In the meantime, on the judge's findings, the risk of A absconding if he were at liberty was as high as could be. There was also a high risk of him re-offending, and, given the nature of his previous offending, this would have been a very worrying prospect ."
"102. In our judgment, the fact that a FNP [foreign national prisoner] is refusing to return voluntarily, or is refusing to cooperate in his return (for example, by refusing to apply for an emergency travel document, as initially did WL) is relevant to the assessment of the legality of his continued detention: see [A (Somalia)] ."
We were told that the decision in that case is under appeal to the Supreme Court, but it represents the present state of the law by which we are bound.
"32. The true position in my judgment is this. 'Pending' in paragraph 16 means no more than 'until' . So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21.
33. To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot); nothing about is existence ."
"16. In those circumstances, for continued detention to be lawful two questions have to be capable of being answered. First, by when does the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation? Mr Patel, on instructions, is understandably unable to answer either of those questions, other than by the generality that the Secretary of State expects to be able to deport him within a reasonable time. Mr Patel realises that that begs the question. In my view, against the history that I have recited, there is simply no basis for concluding that A can be expected to be deported within the near future, nor can anybody, let alone the Secretary of State, give an answer to the first of those questions. An impasse has been reached in A's case. It has been reached after the lapse of many months of detention. His detention has now become unlawful.
17. I reach that conclusion notwithstanding that he has committed a serious criminal offence and that there is in his case the risk of absconding. Those are factors which have to be weighed in the balance. Were there grounds for believing that his application for emergency travel documents would soon be resolved favourably, then those factors would have led me to uphold the lawfulness of his detention. But absent any basis for concluding that he can soon be deported, those factors do not outweigh the claim that he has to conditional release ."
The judge's conclusions
"79. It is for the court to assess whether the period in contemplation was a reasonable one in all the circumstances. The court is not confined to applying Wednesbury principles to assess whether the Secretary of State himself rationally held the view that the period in contemplation was reasonable. But at the same time, in a case such as this, where a judgment about the availability of removal depended in a significant way upon an assessment of how a foreign government would react, the court will be slow to second-guess the assessment in that regard which is made by the executive ."
"98. The degree of risk of absconding and the degree of risk of re-offending, as well as the seriousness of the re-offending in prospect, all have a bearing on the question. The higher those risks and the more serious the possible offending which is in contemplation, the longer will be the period of detention allowed under Schedule 3 to the 1971 Act to enable the Secretary of State to arrange the detainee's removal abroad . The likelihood or otherwise that removal will in fact prove to be possible is also relevant, as is the period of time during which the claimant has already been subject to immigration detention . The refusal of the claimant to cooperate with the process for his removal is also a relevant factor to be added to the list. The burden is on the Secretary of State to satisfy the court on the balance of probabilities that the claimant is being properly detained 'pending removal'."
"102. It is clear from these judgments that the lawfulness of an individual's detention for the purposes of removal depends upon an overall assessment from time to time of a range of factors. As is emphasised in all the authorities, each case depends upon its own particular facts."
"112. These all seem to me to be powerful factors in favour of justifying the detention of the Claimant and supporting its legality. Against them, however, must be weighed the very long period of time during which the Claimant was subjected to immigration detention and the ordinary prison conditions in which he was being held from mid-May 2007. I consider that this latter factor is of comparatively lesser weight, because the Claimant had brought about his own transfer from Colnbrook IRC to secure prison conditions by his refusal to accept the rules and controls in place at the centre .
113. The long period of time over which the Claimant was detained is a factor of considerable and increasing importance as the situation dragged on. In my view, especially in the latter stages (from late 2006) the Secretary of State should have been giving particularly anxious consideration to the question whether it remained viable to suppose that there was a realistic possibility of removal to Somaliland, such as to justify the detention of the Claimant. Apart from the inherent unattractiveness of continuing to detain the Claimant at that stage after such a long period of detention, an Immigration Judge had given warning at the bail hearing on 25 January 2007 that the situation should be resolved soon.
114. In my judgment, the sending of the letter of 14 May 2007 (with the support of Collins J at the hearing on 8 May 2007) represented a crystallised final opportunity to seek to obtain additional helpful bio-data from the Claimant. He had already been in detention for a very long time by then, but by responding positively to the letter appeared to indicate a new-found willingness to co-operate. The witness statement of Ms Tanna of 25 May 2007 made it clear that she had taken further inquiries of his family as far as could reasonably be expected. For the first time, the appearance was given that the Claimant was seeking to be candid and helpful, and that serious steps to assist the Secretary of State had been taken.
115. Particularly after the long time in which the Claimant had been in detention at that stage, I consider that this final provision of information by Ms Tanna and then by the Claimant at interview on about 29 May 2007 should have brought matters to a head. The Secretary of State then had as much information as it was ever likely he could obtain, and he had the benefit of the new impetus in relations with the Somaliland authorities created by the signing of the 2007 MOU. The internal assessment on 5 June 2007 was that the Claimant's case should be treated as a priority. The Secretary of State was entitled to a short period after this to give the new situation careful consideration, to consider whether any further avenues of inquiry might be possible and whether any viable approach to the Somaliland authorities might be made on the basis of the information which was available. In my view, that period should not have exceeded 14 days.
116. There is no evidence to suggest that at that stage there was any realistic way forward which might have allowed the Claimant's removal to Somaliland. The information available was assessed to be insufficient. At that point, there was no serious prospect of supplementing it. Rather, the case seems simply to have been allowed to drift towards the increasingly likely grant of bail which eventually occurred. In my judgment, therefore, the Claimant's detention became unlawful from 20 June 2007. He is therefore entitled to damages for false imprisonment for the period from 20 June 2007 to his release on 21 August 2007, to be assessed. The Claimant is also entitled to a declaration that his detention between 20 June 2007 and 21 August 2007 was unlawful.
The claimant's case on the appeal
Discussion and conclusion
i) The judge took the view that the risk of the claimant re-offending "in potentially serious ways" was high. In my judgment, that was a fair assessment. The claimant's offending history was not at the gravest end of the spectrum, but he had spent the major part of his time in this country in custody, serving sentences for criminal offences which included two offences of robbery; he had continued to offend despite a warning that he risked deportation; and the immigration judge who heard his appeal against the deportation order found that he was unlikely to desist from his pattern of offending. It was legitimate to consider that he posed a potentially serious risk to the public if released.
ii) The judge's findings that the claimant presented a high risk of absconding and that electronic tagging was not a suitable and effective way of meeting the risk of absconding were also properly open to him on the evidence.
iii) The judge considered that the claimant's lack of co-operation was relevant to the assessment of the risk of absconding. I (Afghanistan) and A (Somalia) show that that was a legitimate process of reasoning. The judge also considered the lack of co-operation to be relevant in two other ways: it meant that the claimant bore a considerable degree of responsibility for the situation in which the Secretary of State found himself, and it gave the Secretary of State the impression that the claimant might well have information which could be put to the Somaliland authorities with a reasonable prospect of being accepted by them. Again, I regard that as a permissible line of reasoning.
iv) I do not accept Mr Fitzgerald's submission that the lack of co-operation was immaterial because there was no possibility in any event of sufficient information being provided to the Somaliland authorities for them to accept the claimant for return. The judge examined with great care the evidence concerning the approach of the Somaliland authorities to returns, including the cases where individuals had been rejected for return and the cases (albeit few in number) where they had been accepted. It was open to him to find as he did that the 2003 MOU and 2007 MOU were not dead letters, that removals to Somaliland remained a realistic and viable possibility in appropriate cases, and that it was only at a very late stage that it became clear that it was not going be possible in the claimant's case to provide sufficient information to secure his acceptance by the Somaliland authorities.
v) The judge gave proper weight to the very long period of time during which the claimant was subject to immigration detention, and rightly treated it as a factor of considerable and increasing importance as the situation dragged on. As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention. The judge evidently had that point in mind when he observed that especially in the latter stages, from late 2006, "the Secretary of State should have been giving particularly anxious consideration to the question whether it remained viable to suppose that there was a realistic possibility of removal to Somaliland, such as to justify the detention of the Claimant" (para 113).
Lord Justice Etherton:
Lord Justice Longmore: