ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Timothy Corner QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE ELIAS
| The Queen on the application of M M
|- and -
|Secretary of State for the Home Department
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Raza Husain QC and Laura Dubinsky (instructed by Deighton Pierce Glynn) for the Appellant
Julie Anderson (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 12-13 July 2012
Crown Copyright ©
Lord Justice Richards :
"On 16 June 2009 the Acting President of the Chamber to which the case has been allocated decided … to indicate to your Government, under Rule 39 of the Rules of Court, that the applicant should not be deported to Somalia pending the Court's decision in M(2) v the United Kingdom …."
The context within which that rule 39 indication was given is considered further below.
The judgment below
"Overall, I accept that as the period of detention becomes longer, so a greater degree of certainty and indeed proximity of removal is likely to be required. I accept also that there was no certainty that the litigation – the ECtHR proceedings and the application for revocation of the deportation order – would conclude in the Secretary of State's favour, and that it was not possible precisely to predict when they would conclude. However, I think that at all times it could be anticipated that those proceedings would be completed within a reasonable time, and once they were concluded, if which might be the case the result was in the Secretary of State's favour, then there was no other obstacle to deportation. I think in the circumstances of this case, and taking account of the risk the Claimant presented of absconding and re-offending, that was sufficient. Further, I do not think Hardial Singh principle (ii) had been breached either by June or November 2010, or at any time up to the Claimant's release. The stage had not been reached where detention had lasted for a period longer than was reasonable in all the circumstances."
The issues in the appeal
The ECtHR proceedings
"14. On 30 September 2008, the Registry of the ECtHR contacted the Foreign and Commonwealth Office (FCO) in relation to cases involving removal to Somalia. The Registry official said that the Court did not understand how the UK Government could continue to remove individuals to Somalia while there were still cases pending before the domestic and European courts. He made clear that the ECtHR was contemplating staying all existing Somalia removal cases pending the outcome of domestic proceedings. He asked if the UK Government would halt all removals to Somalia if the Court were to impose such a stay. The FCO consulted the UK Border Agency (UKBA) and an official spoke to the appropriate person at the ECtHR on 10 October 2008. The message was that the UK Government would not adopt a blanket suspension but would continue to consider each case on its merits because (1) there was recent country guidance concerning risk on return to Somalia (HH and others (Mogadishu: armed conflict risk) Somalia CG  UKAIT 00022); (2) the situation in Somalia did not justify the conclusion that all removals to Somalia would necessarily involve a breach of Article 3 of the ECHR; and (3) enforced and voluntary removals were continuing. It seems that there were some 200 removals or returns to Somalia between January 2004 and September 2009, with only a short period of suspension in September/October 2008 because of security reasons at Mogadishu airport.
15. The Registry of the ECtHR wrote on 23 October 2008, notifying the UK Government that it was aware of the country guidance given in HH but that it also knew that HH was still pending in the Court of Appeal. (We now know that the Court of Appeal allowed the appeal on 23 April 2010:  EWCA Civ 426.) For this reason, the ECtHR had decided on 7 October 2008 to adjourn all of the 116 pending applications concerning removal to Somalia 'until the question of risk of return has been considered fully by the domestic courts'.
16. On 24 April 2009, the FCO obtained oral confirmation from the Registry that the ECtHR had been granting interim measures under Rule 39 to all applicants subject to removal directions to Mogadishu. The FCO passed this information to the UKBA. The evidence of the Secretary of State in the present case is that after 28 October 2008, those in communication with the Registry assumed that Rule 39 indications were being given on a blanket fact-insensitive basis.
17. The next development took place in the Administrative Court. On 22 May 2009, Davis J handed down his judgment in R (Abdi) v Secretary of State for the Home Department  EWHC 1324 (Admin), which was also concerned with detention pending removal to Somalia. He was told of the ECtHR's fact-insensitive approach in relation to Rule 39 applications in such cases and that it was the policy of the Secretary of State to abide by Rule 39 indications once given but to continue with removal in the absence of such an indication and on a fact-sensitive basis. Davis J was not impressed ….
18. On 28 May 2009, the FCO resumed its correspondence with the ECtHR, pointing out that permission to appeal had not yet been granted in HH, which had been stayed in the Court of Appeal pending the judgment in the European Court of Justice in Elgafaji (which had been handed down in February 2009:  1 WLR 2100), and that the Asylum and Immigration Tribunal had promulgated further country guidance in AM and AM (armed conflict risk category) Somalia CG  UKAIT 0009 on 27 January 2009. (A further strand in this tangled web is that AM was later joined with [HH] in the Court of Appeal and was considered in the same judgment on 23 April 2010: see paragraph 15 above. Moreover a yet further country guidance on Somalia has recently been heard, but not yet determined in the Upper Tribunal, and the long-awaited judgment of the ECtHR in Sufi and Elmi v United Kingdom, 8319/07 and 11449/07 was promulgated on 28 June 2011, but these developments do not impact upon the present appeal).
19. These historic developments illustrate the tension between the ECtHR and a member state. Such tension is not peculiar to the United Kingdom. The Council of Europe held a High Level Conference on the Future of the European Court of Human Rights in Izmir on 26-27 April 2011. It resulted in a Declaration, paragraph 3 of which states:
'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."
The Hardial Singh issue
"65. I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to established principles …. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors …."
"The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts".
In similar vein, Longmore LJ observed in MH at para 73 that judges "have to make a judgment taking a range of (often competing) factors into account", but that "once a judge has done that, it will be a rare case in which it would be right for this court to interfere". I agree with those observations, which in my view represent the correct approach of an appellate court to cases involving the application of Hardial Singh principles.
The alleged public law errors
"2(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuant of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs …, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.
(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
"88. We consider, first, that it is necessary to distinguish between the detention of FNPs [foreign national prisoners] under sub-paragraph (1) of paragraph 2 of Schedule 3 to the 1971 Act and detention under sub-paragraphs (2) or (3). Sub-paragraph (1) is itself legislative authority for the detention of a FNP who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the Court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances. Furthermore, SK is authority, binding on us, that a failure in breach of procedural rules to review his detention does not necessarily render the detention unlawful.
89. The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases, there is no lawful authority to detain unless a lawful decision is made by the Secretary of State …."
"39. … Paragraph 2(1) creates the presumption of detention for a foreign national prisoner deriving from the recommendation for deportation made by the judge when sentencing for the criminal offence. Paragraph 2(3) continues the presumption following the making of the deportation order where the person was already detained before it was made. The basis of detention throughout is the court's recommendation to deport and is pursuant to statute, not to any discretionary decision of the Secretary of State, as is the case with detention under paragraph 2(2). Since detention is by virtue of statute a claim for false imprisonment must, on ordinary principles, fail …."
"34. … Until 24 August 2007, when the deportation order was made and served on the appellant, the appellant was being detained under paragraph 2(2) pending the making of a deportation order. From that date onwards he was being detained under paragraph 2(3) because he had not been released on bail and the Secretary of State had not directed otherwise. On the other hand Mr Tam [for the Secretary of State] accepts that the breakdown in the system was a breach of duty owed by the Secretary of State to the appellant in public law. The appellant could have obtained a mandatory order at any time requiring the reviews to be carried out if he had asked for this.
35. The focus of attention therefore is on the authority to detain. Is the review essential to the legality of the continued detention? Or is it a sufficient answer to the claim for damages for the Secretary of State to say that, unless and until he directed otherwise, the authority to detain is there throughout in terms of the statute?"
"41. … But I do not think that this difference means that Nadarajah's case offers no assistance in this case. On the contrary, it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise ….
42. … The published policy narrowed the power of executive detention by requiring that it be reviewed regularly. This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary. So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals. Applying the test proposed by Lord Dyson JSC in Lumba, it was an error which bore on and was relevant to the decision the detain throughout the period when the reviews should have been carried out ….".
"127. … Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a real risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees … or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return."
Article 5 ECHR
"1. Everyone has the right to liberty and security of the person. 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 … against whom action is being taken with a view to deportation or extradition."
Lord Justice Elias :
"The Secretary of State went on to say that although she would have a duty in accordance with her policy to review the Claimant's detention within a reasonable time by reason of the change of circumstances, to reconsider the Claimant's detention at the next monthly review would be to review within a reasonable time. Given that the June review took place on 17 June, that presumably suggests that it would be acceptable to review the Claimant's detention on or about 17 July. Whether or not it was reasonable for the Secretary of State to wait until 17 July, in my view by 13 July a reasonable time had not elapsed so as to require the Claimant's release.
I think the Secretary of State was entitled to take that time at least to consider what to do about the Claimant after the issue of the Sufi and Elmi decision. The Claimant's own personal position had to be considered in the light of the judgement."
85. It seems, therefore, that the Secretary of State was under the impression that in principle it was sufficient to address this matter in accordance with the normal monthly review (although in fact the appellant was released a few days before that would have taken place). In my judgment, that displays too cavalier an approach to the right to liberty. Once the continuing detention of a prisoner is put into doubt, as it obviously was here following the Strasbourg decision, the matter has to be addressed as a matter of some urgency. In my view it is simply not good enough to allow the normal administrative procedures to dictate the timetable for release, even if in the event they were not strictly followed. If there were particular reasons why the decision could not have been reached more quickly, then in my view they should have been vouchsafed by the Secretary of State in evidence. The appellant had already spent almost 41 months in custody which, as Richards LJ has observed, was very long indeed and already near the outer limit of what could be justified under Hardial Singh principles.
86. In my view, in those circumstances it was particularly important that there should be a speedy response to the Strasbourg ruling. In my judgment, therefore, there was no proper basis on the evidence to conclude that a period of over two weeks was a reasonable period, and one week ought to have been enough. Hence I would hold that the period from July 5 to the date of release on July 13 was a period of unlawful detention.
Lord Justice Lloyd :