ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE WAKSMAN QC
SITTING AS A JUDGE OF THE HIGH COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE SULLIVAN
| THE QUEEN ON THE APPLICATION OF DRITAN KRASNIQI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPT
Thomas Roe (instructed by the Treasury Solicitor) for the Respondent
Hearing date : Thursday 1st December, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
i) In September 2002 he was convicted of driving with excess alcohol and fined. In July 2003 he was sentenced to 4 months' imprisonment for driving whilst disqualified. In June 2004 he was convicted of further offences for which he received community punishment and rehabilitation orders.
ii) On 7 April 2005 the appellant was sentenced for a variety of offences: two common assaults, an assault occasioning actual bodily harm and two breaches of community punishment orders. The court imposed a series of custodial sentences to run consecutively. They totalled 2 years and 3 months' imprisonment. The sentencing judge commented that he was a man who persistently used violence.
iii) On 2 June 2006 he was convicted of sending offensive or menacing messages to his then girlfriend, for which he received a three year conditional discharge.
iv) On 24 September 2008 he was convicted of possessing (during the currency of his conditional discharge) a bladed instrument in public, and of common assault. He was sentenced to 30 months' imprisonment for the former and 3 months' concurrent for the latter. He could expect to be released on licence on 4 September 2009
i) On 5 September 2007 the Secretary of State initiated the procedure for deportation based on the 2005 convictions. This relied on section 72 of the Nationality, Immigration and Asylum Act 2002, under which a sentence of at least two years' imprisonment gives rise to a rebuttable presumption of conviction of "a particularly serious crime" for the purpose of the exception in article 33(2) of the Refugee Convention.
ii) The decision to deport was made on 31 December 2007. But on 27 January 2009 his appeal was allowed by the Asylum and Immigration Tribunal on the grounds that the 2005 convictions did not satisfy section 72 because no single conviction had resulted in a sentence of imprisonment of two years.
iii) On 14 July 2009 the Secretary of State gave notice that because of the 2008 convictions the appellant was liable to be deported, this time under section 32(5) of the UK Borders Act 2007. This provides for automatic deportation of a "foreign criminal" (a non-British citizen sentenced to imprisonment for at least 12 months), except where this would breach Convention rights or the Refugee Convention.
iv) On 28 August 2009 the Secretary of State told the appellant that he was to be detained under section 36(1) of the 2007 Act, pending consideration of deportation under section 32(5). On 4 September 2009 the Appellant ceased to be a criminal serving his sentence and became a foreign criminal detained pursuant to section 36(1) of the 2007 Act.
v) An internal detention review dated 29 September 2009 noted that advice was being sought on the application of section 72, and that in the meantime his detention was justified, because of the risk of re-offending and the serious harm to the public that could result, and because of past failures by him to report to his reporting centre.
vi) On 13 October 2009 the Secretary of State indicated that section 72 did apply and invited representations. On 4 November 2009 his solicitors replied, relying on his status as a refugee. They also asked that he be moved to an immigration detention centre.
vii) On 27 November 2009 the Secretary of State indicated that the section 72 presumption had not been rebutted, and that there would shortly be put in hand "cessation action" to end his refugee status.
viii) On 30 March 2010 the appellant was notified that the Secretary of State was proposing to cancel his status as a refugee.
ix) On 10 June 2010 he was moved from prison to an immigration removal centre.
x) On 20 August 2010 the decision was made to cancel his status as a refugee, with the result that section 32(5) of the 2007 Act applied. A deportation order was made on 31 August 2010.
xi) Appeals to the First-tier and Upper Tribunal were dismissed, that route being finally closed on 2 June 2011. Further representations seeking revocation of the deportation order were refused on 9 November 2011.
The judgment below
"On that footing it could be said that after the end of February 2010 [the appellant]'s detention was not justified because a reasonable period of detention was now exceeded. However, as the authorities make clear the reasonableness or otherwise of the period cannot finally be assessed until the question of risk of absconding or commission of further offences and the question of the now-projected time of release, are also factored in."
"Having taken all of the relevant factors into account, including the expected length of further detention, I have concluded that the period of detention is not, overall, an unreasonable one. The result is that [the appellant] is not being unlawfully held and there is no basis for ordering his release or awarding damages."
i) whether the judge should have decided that the detention of the appellant, though lawful at the date of the trial, had been unlawful during an earlier period, giving rise to a common law cause of action for damages;
ii) whether he should have decided that the Secretary of State's failure to follow the published policy as to the place in which persons should be detained before being deported (usually an immigration removal centre, not a prison) was, of itself, a breach of the appellant's rights under Article 5 of the European Convention, giving rise to a claim for damages under the Human Rights Act.
Place of detention
"…a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."
She argues, however, that a claim may lie under Article 5 for "arbitrary" detention, which in her submission may include arbitrariness in the selection of the place of detention.
"… 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 to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
LORD JUSTICE MOSES :
LORD JUSTICE SULLIVAN :