ON APPEAL FROM THE QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT, BIRMINGHAM
(MR JUSTICE BEATSON)
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division
LORD JUSTICE CARNWATH
LORD JUSTICE LLOYD
| THE QUEEN on the application of AR
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Alan Payne (instructed by Treasury Solicitors) for the Respondent
Hearing date : 23 May 2011
Crown Copyright ©
Lord Justice Maurice Kay:
The judgment of Beatson J
"The policy of the UK government is clear and set out in paragraphs 5.2 to 5.3 of the … Operational Guidance Notes. The UK government's policy and that of the Border Agency is stated to be fact-sensitive; that is to consider each return of each individual to Somalia on the merits of the particular case. But it is also said that, while continuing to seek to remove failed asylum seekers and doing so in some cases, the UK will comply so far as is possible with any Rule 39 indications given in a particular case …
In this case the claimant was represented throughout the appeal process. Over four years between the date his appeal rights were exhausted and the time the defendant decided he should be removed, no representations had been made by him or on his behalf asking that he should be given leave to remain in the UK on human rights grounds or because he was entitled to humanitarian protection because of the situation in Somalia …
The defendant knew from 9 July, the day after the claimant was detained, that IAS was instructed on his behalf. The removal directions were only set on 16 July. They were served with the instructions about instituting judicial review and the statement that access to a telephone will be given to enable a detainee to contact a legal adviser or representative. The removal directions were set for 15 August, almost a month later. In the light of the absence of any representations on behalf of the claimant since his appeal rights were exhausted, the decision in AM and AM … , the defendant's Operational Policy, and the time between the setting of the directions until the date set for removal, I consider the Secretary of State was entitled to set the removal directions that he did."
(I should add that soon after 9 July the appellant transferred his instructions from IAS to his present solicitors but nothing turns on that.)
The grounds of appeal
"(1) Is it permissible for the Secretary of State to have a fact-sensitive policy on setting and implementing removal to Mogadishu (and to detain on the strength of such a policy) in circumstances where she knows that the ECtHR has adopted a fact-insensitive approach restraining such removal (by indicating binding rule 39 measures) in all such cases, irrespective of factual merit? Does it make a difference that the ECtHR's approach was itself informed, at material times, by the pendency of domestic test-case litigation?
(2) Did the Secretary of State apply a fact-sensitive approach here, ie did officials conduct an up-to-date risk assessment, including consideration of the safety of the route to the home area via Mogadishu?"
1. Rule 39
"The Chamber or, where appropriate, its President, may, at the request of a party or any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper conduct of the proceedings before it."
"… in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to your Government under Rule 39 … that the applicant should not be deported to Somalia pending the Court's decision in M(2) v United Kingdom (application no. 45196/06)."
That intervention is what gave rise to the appellant's release. It illustrates what normally happens, and what one would expect to happen, once a Rule 39 indication has been given in a specific case.
"103. … the Court applies r.39 only in restricted circumstances.
104. Interim measures have been indicated only in limited spheres. Although it does receive a number of requests for interim measures, in practice the Court applies r.39 only if there is an imminent risk of irreparable damage, … The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings."
"All this shows a nice (or perhaps, changing the meaning of the word, not so nice) regard on the part of the Home Office to the letter of the law. It shows, in my view, an almost total disregard to the spirit behind the [ECtHR's] stance. It also and most unattractively, places at a serious and potentially irreversible disadvantage those Somalis facing forced return to Mogadishu who do not have the legal assistance or resources or knowledge to enable them to seek to apply to the [ECtHR]."
The claimant in that case had not made an application to the ECtHR and so there was no Rule 39 indication in his case.
"The Conference …
Welcoming the improvements in the practice of interim measures already put in place by the Court and recalling that the Court is not an Immigration Appeals Tribunal or a Court of fourth instance, emphasises that the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity and that such requests must be based on an assessment of the facts and circumstances in each individual case, followed by a speedy examination of, and ruling on, the merits of the case or of a lead case."
This complex history is the inevitable result of the volume of migration, the proliferation of litigation both here and elsewhere, the difficulties caused to courts and governments who are forever waiting for pending appeals and applications to be decided and the particular problems of the log-jam in the ECtHR. I have not mentioned every manifestation of the complexity. What I have mentioned should be sufficient to demonstrate the context.
"Secondly, as the power is being given [by the Immigration Act 1971] 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."
"It needs to be emphasised that the mere fact that judicial review proceedings have been commenced neither invalidates the removal directions nor requires the detainee to be released. Whatever may be his practice in the generality of such cases, the Secretary of State is fully entitled to adopt the stance that the removal directions will be implemented unless a judge of the Administrative Court has made an order expressly prohibiting that step … "
The position is, of course, different when a statutory appeal against an "immigration decision" to the First Tier Tribunal is pending (Nationality, Immigration and Asylum Act 2002, section 78(1)(a)). In that case the pending appeal has suspensory effect without more. However, the statutory provision has not been extended to applications for judicial review, where any suspensory effect is strictly voluntary in the absence of an interim court order, although the Secretary of State maintains a policy of not removing if an expeditious application for permission to apply for judicial review is lodged in the Administrative Court.
2. Fact-sensitive risk assessment
"… [Mr Husain] accepted that, given the date on which the defendant was first informed of the application to amend, since the defendant considered she needed evidence, the application could not be pressed. Accordingly the evidential position is such that it is unfortunately not possible to deal with this ground in these proceedings."
No criticism is or could be made of this approach.
"ReSCU does not undertake risk assessments but puts in place logistical arrangements for removal once the case owner has assessed that an individual is removable … [while] no assessment of risk or return was recorded on the file, the defendant's legal representatives were instructed that the case worker decided that the claimant was removable on the basis that his appeal rights had been exhausted, no further representations had been received despite the fact that throughout the relevant time the claimant was legally represented; the UK Border Agency had continued to remove individuals to Somalia via Mogadishu airport; and the claimant fulfilled the ReSCU criteria."
This is substantially confirmed by the contemporaneous documentation.
Lord Justice Carnwath:
Lord Justice Lloyd: