ON APPEAL FROM THE QUEEN'S BENCH DIVSION
ADMINISTRATIVE COURT (Ian Dove QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE RIMER
| R (Mark Andre Suckrajh)
|- and -
|(1)The Asylum & Immigration Tribunal and
(2) The Secretary of State for the Home Department
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Mr Jeremy Johnson QC (instructed by The Treasury Solicitor) for the Second Respondent
Mr Tim Otty QC and Mr Tom Hickman (instructed by Baker & McKenzie) for the Intervenor, UN High Commissioner for Refugees
Hearing date: 4 March 2011
Crown Copyright ©
Lord Justice Thomas:
2. The facts
(i) The first period of detention: June to August 2008
"A further letter detailing the outcome of the reconsideration will be issued in due course and accordingly, if your client's claim falls to be refused, he will be given an in-country right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002. He would be entitled to remain in the United Kingdom whilst the appeal is pending."
(ii) His time at liberty in the UK August 2008 to July 2009
i) His claim was progressed in the normal way. For example, although the claimant's solicitor asked on 6 March 2009 when the claimant's more detailed interview would be scheduled, the Treasury Solicitor replied on instructions some weeks later on 2 April 2009:"My instructions are that my client will not agree to a timeframe for assessing the [claimant]'s asylum claim."
ii) The appellant was required to live at a named address and to report to the UK Immigration Service every month.
iii) His solicitors put forward to the Treasury Solicitor the claimant's claim for compensation for unlawful detention, supported in January 2009 by a detailed document. Sometime prior to June 2009, there were discussions on figures for the settlement of the claim.
(iv) The detention of the claimant on 6 July 2009
"Your release is not considered conducive to the public good."
"I am satisfied that your application may be decided quickly using the asylum fast track procedures".
The form had two further boxes ticked to show that the factors taken into account were:
"On initial consideration, it appears that your application may be one that can be decided quickly.
"Your unacceptable character, conduct or associations.
The contemporary correspondence from the claimant's solicitors recorded that he was told that he was being detained under the DFT procedure.
"I need your collective help with the above case.
[The claimant] was refused entry in transit last June and subsequently claimed asylum. He was detained at Oakington and his claim certified. He lodged a JR against the certificate and T/Sols advised to withdraw the certificate. Having done that, he lodged an unlawful detention claim which we are in the process of settling to the tune of £10,000-£13,000.
His claim is that he is a homosexual but on arrival he claimed to have a girlfriend in [Jamaica] and since his release he's posted on facebook that he's married to a Brit Cit and is madly in love – copies of fb are on file. His claim, therefore should be easy to consider.
Since his initial refusal we have subsequently found out that he was convicted in [Jamaica] of rape of a minor. The police want him registered on the sex offenders list and we clearly want him off the streets as he is a publicity nightmare waiting to happen. He does not know that we know this.
Is to detain on his next reporting – which is 04/07/09 at CEU, which is where you come in Mags.
Have him accepted into and dealt with under DFT – Steve/Naomi
In reality we only have 1 shot to do this. We suspect that once he gets his settlement money he will disappear. T/Sols are agreeing to drag payment out as long as possible but it will be tight so I'm giving plenty of notice so we can get all our ducks in a row and make sure this happens.
Can you let me know if you're all on board and if there's anything you need from me.
Thanks in advance."
Among the other documents produced by the Secretary of State was a print of the facebook entry by the claimant which stated that he was married to Claire Collins; that he was happy with Claire and enjoying his life with Claire.
"The document (IS.91R) made it clear that your client's release is not considered conducive to the public good. It is also considered that his asylum application may be decided quickly using the asylum fast track procedures. On initial consideration, it appears that your client's application may be one which can be decided quickly. Lastly but not the least your client's unacceptable character, conduct or associations is one of the many reasons why his claim is suitable for the fast track process. I am naturally disappointed that you could not find anyone to speak to or take responsibility for the decision to detain your client. I have however noted that the notice to your client detailing the reasons for detention clearly stated the name of the officer who signed the document. May I assure you that the decision to detain your client was properly taken."
It was made clear that any appeal would be dealt with in accordance with Asylum and Immigration (Fast Track Procedure) Rules 2005 (the DFT Rules); any appeal would be heard within 4 working days of the decision
(v) The decision on 17 July 2009
"You are likely to abscond if given temporary admission or release."
"I am satisfied that your application may be decided quickly using the asylum fast track procedure."
The boxes for factors taken into account were:
"On initial consideration, it appears that your application may be one that can be decided quickly."
"You have used or attempted to use deception in a way that leads us to consider that you may continue to deceive."
"You have not provided satisfactory evidence of your identity, nationality or lawful basis to be in the UK."
"had been dealt with under the Detained Non Suspensive Appeal process because he is a Jamaican national. You will be aware that Jamaica is a country which is listed in s.94(4) of the [2000 Act]….."
It was contended on behalf of the claimant that this showed that the procedure followed had not been the DFT process, but the DNSA process; the UKBA had agreed that this process was not to apply and had withdrawn the "clearly unfounded" certificate in the circumstances set out in paragraphs 6-8 above. Mr Johnson on behalf of the Secretary of State explained to the court that the claimant had been detained under the DFT procedure (as was apparent from the earlier correspondence). The reference in the letter to the DNSA procedure was a reference to the administrative process that applied to the claimant as a Jamaican, because the Secretary was required to certify the appeal as unfounded under s.94 unless satisfied that it was not clearly unfounded. The court was told that this meant that the claim was subject to additional scrutiny. Whatever may be the reason for the statement in the letter that he was subject to the DNSA procedure, the letter was simply wrong. He was not so subject. I am satisfied that he was subject to the DFT procedure throughout.
(vi) The continuation of detention: 17 July to 21 August 2009
"I did not consider the immigration history, judicial review proceedings or any other aspect of the case provided the claimant with any proper reason for having his matter taken out of the Fast Track Process into which he had been legitimately placed by the respondent."
(vi) The determination of the asylum appeal
(vii) The application for judicial review of his detention in July 2009
3. The issue and the submissions
(i) The claim as it stood at the opening of the hearing
i) The Court in Saadi had been considering a case where the applicant in 2001-2 had been detained for 7 days on his arrival in circumstances where there was an escalating flow of large numbers of asylum seekers and there were reasons why detention would result in a speedy interview and decision.
ii) The Secretary of State had accepted that the period of his detention in 2008 was unlawful. The credibility of his claim that he was homosexual had not been challenged in the refusal letter of 16 June 2008; the refusal had been based on relocation.
iii) He had been at liberty from 8 August 2008 and co-operating with the authorities. When requested to give a date for a further interview in March 2009, the Secretary of State had refused to set a timeframe. Nothing had then happened until he was detained on 6 July 2009, 11 months after his release from the first period of detention.
iv) Nothing had therefore occurred which entitled a rational decision maker to decide on 6 July 2009 that his claim was a straightforward one which could be determined in days, given the time he had already been at liberty in the UK and the refusal to set a time frame for interview.
v) The claimant's credibility in relation to his homosexuality which formed the basis on which the claimant's claim for asylum was refused under the DFT procedure in the decision letter of 17 July 2009 was not an issue that could be decided quickly or on a straightforward basis.
vi) There was therefore no basis on which his claim could be allocated to the DFT procedure. The decision to detain him on 6 July 2009 had been arbitrary and unlawful.
(ii) The effect of the e-mail of 5 June 2009
i) The real reason for his detention was to place the claimant in detention as he was perceived to be a risk to the public. This and the avoidance of the "publicity nightmare" referred to was not a basis for the use of the DFT procedure, as the officer of the UKBA appeared to accept in her e-mail.
ii) The DFT procedure could only be used for claims that were straightforward and could be determined quickly. The case remained neither straightforward nor one that could be determined quickly.
(iii) The intervention of the UNHCR
4. The conditions for the lawful exercise of the power to detain
(i) Paragraph 16 of Schedule 2 of the Immigration Act 1971
"(1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
(ii) The conditions for the exercise of that power
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.
5. The lawfulness of the claimant's detention under DFT procedure
(i) The purpose for which the power was exercised in detaining the claimant
"here there was no question of the Secretary of State "wait[ing]" to deal with the [claimant]'s case. The effect of the consent order of 23rd June 2009 was that the Secretary of State had then to re-determine [the claimant]'s asylum claim. It was at that point that the Secretary of State had to make a decision as to how to deal with the claim. That was therefore the appropriate time to consider whether to apply the detained fast track process. And it was at this point that the decision was made.
The reason for the application of the fast track is set out in detail in the extensive contemporaneous documentation. It was a DFT case based on an assessment that the application could be decided quickly – see the letter of 7th July 2009."
There was nothing in the documents disclosed prior to the hearing that indicated a rational basis for the decision to invoke the procedure, as nothing explained why the decision could be reached quickly or the case had become straightforward.
(ii) The reasonableness of the period of the claimant's detention
(iii) Compliance with policies
(iv) Detention of the claimant after 17 July 2009
Lord Justice Lloyd:
Lord Justice Rimer: