ON APPEAL FROM THE ADMINISTRATIVE COURT,
QUEEN'S BENCH DIVISION
Mr Philip Mott QC
B e f o r e :
LORD JUSTICE MCFARLANE
LADY JUSTICE SHARP
| THE QUEEN ON THE APPLICATION OF Jumaa Kater Saleh (SUDAN)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Julie Anderson (instructed by the Home Department) for the Respondent
Hearing date : 7th October 2013
Crown Copyright ©
Lord Justice McFarlane:
The statutory context
Immigration Act 1971, s 3(5)
A person who is not a British citizen is liable to deportation from the United Kingdom if:
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
UK Borders Act 2007, s 32
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
UK Borders Act 2007, s 33
1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.
UK Borders Act 2007, s 36
(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State—
(a) while the Secretary of State considers whether section 32(5) applies, and
(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.
Immigration Act 1971, Sch 2, para 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 pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, 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.
(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).
The Hardial Singh principles
'It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department  INLR 196, para 46, correctly encapsulates the principles as follows: (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 a 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.'
'Mr Husain [counsel for the applicant] submitted that some adaptation of these principles was necessary to reflect the nature of the power to detain under s.36(1)(a) of the 2007 Act. Mr Eadie [counsel for the Secretary of State] accepted that a degree of modification was necessary. In the end I am not sure that there was any significant difference between the positions canvassed by the parties. In any case, I would express the implied limitations in this context in this way:
i) The Secretary of State must intend to deport the person unless one of the exceptions in s.33 applies and can only use this power to detain for the purpose of examining whether they do.The Secretary of State must have this conditional intention because otherwise it would not be possible for him to say that detention was pursuant to action with a view to deportation. It is clear that the s.36(1)(a) power may be used by the Secretary of State while the issue of whether one or more of the exceptions in s.33 is applicable. There was some debate at the hearing as to whether this power could also be used while the Secretary of State examined whether any of the other conditions on which the automatic deportation depended were fulfilled. Could he, for instance, rely on this power if the detainee claimed that he was in truth a British Citizen (and so not a 'foreign' criminal)? Mr Eadie was inclined to argue that he could. The consequence would be that even if the detainee was to persuade the Secretary of State (or a court) that he was indeed British, his detention in the meantime could have been lawful. I agree with Mr Husain that that would be a dramatic extension of the law. It may have been achieved by the 2007 Act, but this issue does not arise for decision on the facts of the present case. It would be better in my view for it to be answered in a case where it does.
ii) The detainee may only be detained for a period that is reasonable in all the circumstances.No change is needed to this statement of principle.
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.No change is necessary to the formulation here, but this principle will be infringed if detention continues even though it is apparent that either resolution of the question of whether any of the exceptions in s.33 is applicable, or any subsequent deportation, or both together, will take more than a reasonable time.
iv) The Secretary of State should act with reasonable diligence and expedition to determine whether any of the exceptions in s.33 is applicable.An analogous limitation to Dyson LJ's fourth principle is clearly to be read into the s.36(1)(a) power, but some adaptation is necessary to reflect the exercise on which the Secretary of State is engaged. Of course, if none of the exceptions in s.33 apply and the automatic deportation obligation in s.32(5) arises and detention is continued under s.36(1)(b) , that power will be subject to the implied limitations as formulated by Dyson LJ. The Secretary of State will then have to act with reasonable diligence and expedition to effect deportation. What is reasonable will no doubt take account of the totality of the period that the person concerned has spent in detention after the conclusion of his criminal sentence pursuant to immigration powers.'
Three first instance decisions
'it may be that the [Secretary of State] could have started the process of deciding whether any of the exceptions in s 33 applied at an earlier stage and before the custodial term of the Claimant's sentence had almost expired. In the future it would be sensible for him to do so in many cases. It may not be practicable if the person concerned has spent a lengthy time on remand which is ordered to count against his sentence so that the custodial term comes to an end shortly after he has been sentenced. On the other hand, if a lengthy term of imprisonment has been imposed, there are obvious disadvantages in starting too early the consideration of what the position will be when the custodial sentence comes to an end. Things may change. But in cases such as the Claimant's where there are a few months between sentence and the automatic release date neither concern will apply. As [counsel] argued, if the initiation of the process is delayed, it is likely to prolong the period of s 36(1)(a) detention.'
Dismissal of judicial review claim
i) Failure to engage with the merits of the claim which, it was asserted, was so strong that the Secretary of State should have granted bail at any early stage and, if not then, certainly pending the resolution of any potential appeal process following the FTT decision.
ii) Undue delay in addressing the claim was excessive on the basis that JS had made an in-time application for further leave to remain in September 2006 and the delay in processing his application and subsequent claims.
iii) An ECHR, Article 5, point claiming that JS had not been informed of the precise provision under which he was detained. In the event permission to proceed with judicial review was not granted in relation to this ground.
iv) Unreasonable assessment of the risk of re-offending, this being likely to affect the decision to keep JS in detention rather than to grant him bail.
"Accordingly, the issues essentially resolved themselves to two. Chronologically, the first is whether there was unreasonable delay in deciding whether the exceptions in section 33 applied. The second is whether the claimant should have been granted bail once the strength of his Article 3 claim was appreciated, even though it was not unreasonable for the defendant to challenge that claim. Finally I must look at the last seven days of detention, once permission to appeal to the Upper Tribunal had been refused."
a) September 2006 (JS's fresh application) to 8th May 2009 (end of custodial sentence);
b) 8th May 2009 to 27th January 2010 (interview by immigration officer);
c) 27th January 2010 to 12th August 2010 (decision letter sent to JS).
"In this case, prior to May 2009 the claimant had been refused asylum, and had not appealed that decision. He had not raised his ethnicity as a relevant factor, nor had it been flagged up as a potential problem in the Defendant's Operational Guidance. He was by then an adult, and had been serving a long custodial sentence as a result of which he was subject to the automatic deportation regime. Even if given the option of remaining in the UK, he would be released on licence and subject to the requirements of being on the Sex Offenders Register and might very well prefer to be assisted in leaving the UK. I can see no good reason for requiring consideration of his case prior to 8th May 2009."
i) The specifics of the claimant's claim at that time to be at risk of persecution;
ii) Confirmation of his Sudanese origin;
iii) Whether he could find internal relocation to overcome his difficulties; and
iv) Whether there were other family members remaining in Sudan.
In addition the judge concluded that no doubt there was a changing picture in Sudan which required up to date evaluation.
"The reality is that, even if the information had been obtained earlier, it would still have needed checking, and the possibility of internal relocation would have been a live one until November 2009."
"A reasoned decision was required on the application of the refugee convention as well as an analysis of the evidence of ethnicity. The background of the automatic deportation provisions of the 2007 Act meant that it was reasonable for this evidence to be tested thoroughly. Indeed, Mr Symes accepts that the decision letter rejecting the claim to be a Sudanese Zaghawa was not irrational."
"Thereafter more expedition would have been ideal, but the delay was not unlawful. I note, whilst making it clear that it is by no means decisive, that the claimant made no attempt to get bail or to start judicial review proceedings between May 2009 and August 2010."
The appellant's case
a) Whether or not the time taken by the Secretary of State to reach a decision was a "reasonable period" indicating the deployment of "due diligence" in the administrative process; and
b) Whether or not detention for all or part of the last seven days between refusal of permission to appeal and eventual discharge was lawful.
a) Assembly of the documents into a coherent chronological sequence;
b) Provision of a chronology annotated with the relevant bundle page numbers; and
c) Contemplating that the court would need to have a detailed understanding of what was, or was not, occurring during the period in question.
Burden of Proof
"All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, ex pte Hague  1 AC 58: 'the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it'".
"The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained."
The reasonableness of the period of detention in this case
"that the Appellant was detained unlawfully for 8 months by the Respondent". The claim is remitted to the High Court for assessment of the quantum of damages.
Lady Justice Sharp:
The Master of The Rolls: