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QUEENS BENCH DIVISION
(CROWN OFFICE LIST)
Strand London, WC2 | ||
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B e f o r e :
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IN THE MATTER OF WASFI SULEMAN MAHMOD | Appellant | |
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The Secretary of State for the Home Department | Respondents |
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Chancery House, Chancery Lane, London WC2.
Telephone No. 071 404 7464.
Official Shorthand Writers to the Court.)
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MR R JAY (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
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Crown Copyright ©
MR JUSTICE LAWS: This is an application for a writ of habeas corpus. It arises in circumstances which I find disturbing.
On 3rd January 1991 the applicant sought leave to enter the United Kingdom as a visitor. He had earlier been recognised as a refugee from Iraq by the authorities in Germany. On 14th January 1985 he had been given indefinite leave to remain in that country. When he arrived here he was refused admission. Customs officers discovered that he was in possession of a significant quantity of opium having a street value of some £9,780. He was prosecuted and, on 9th September 1991, was convicted at the Isleworth Crown Court of an offence of illegal importation of a controlled-drug. He was sentenced to 4 years' imprisonment and the Court made a recommendation for deportation under section 6 the Immigration Act 1971. In due course the Secretary of State signed a deportation order. That was on 3rd March 1992.
Having regard to the length of his prison sentence he became eligible for parole at the beginning of March 1993, and though at first there was some doubt on the papers as to whether the power to parole him had in fact been exercised, it is common ground that he was indeed given parole on that date and a document has been exhibited to an affidavit of his solicitor which indicates the parole decision in his favour, though the Court has not actually seen a parole licence.
Since 2nd March 1993 he has been detained, or perhaps purportedly detained, under the powers conferred on the Secretary of State by paragraph 2(3) of Schedule 3 of the Immigration Act 1971. That provides:
"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....."
It is accepted by Mr Jay, who has appeared for the Home Office, that this power of detention is subject to certain limitations. One appears from the face of the statute; that is that the power may only be exercised in a case where his removal as a deportee is pending. The other arises from a judgment given by Woolf J, as he then was, in R v Governor of Durham Prison Governor, ex parte Hardial Singh [1984] 1 WLR 704. It is not, I think, necessary to travel into the facts of that case. At page 706D the learned Judge said this:
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given 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."
Since March 1993, it seems that the Home Office have been seeking to achieve this applicant's removal to Germany. In an affidavit to be sworn by Mr Palmer of the Treasury Solicitor it is said:
"On 1st March 1993 the Home Office learned through the Immigration Service that the German authorities had refused to renew the applicant's residence permit and had themselves made a deportation or exclusion order."
It is not, I think, necessary to read from the text of the document which Mr Palmer exhibits which shows that that is the case. My understanding is that the German authorities have taken their decision in light of the applicant's conviction in this country for a serious drugs offence.
Mr Palmer's affidavit continues:
"The Home Office has since that time been taking advice on the lawfulness of the position adopted by the German authorities and has sought the assistance of the Foreign and Commonwealth Office to bring about a change of mind on the part of those authorities.On 12th January 1994 the Foreign and Commonwealth Office reported that their efforts had not so far been successful."
It is true that some consideration has been given by the Secretary of State in months past to permitting this applicant's release, but it is enough to say that he has not taken that step, not being satisfied as to the conditions prevailing in the accommodation which was available for him.
It is now 17th January 1994. This applicant has been in administrative detention for over ten months. He is to be regarded, quite plainly, as having served his sentence for the drugs offence for which he was convicted. There is no question of these ten months' detention being attributable to that crime. In truth, he has been locked up while the Home Office have, it seems, been making unsuccessful efforts to persuade the German authorities to take him back. It goes without saying that the applicant has no power to influence what may be done at the international level about his case between this country and Germany. Equally, it goes without saying that he has no responsibility for any disagreement of view between this country and Germany, if there is a disagreement, as to what the obligations of the German authorities are. He has therefore been in imprisoned while there have been discussions and negotiations over which he has no power of influence whatever between the two states.
Although I should say at once that the Home Office have been entirely responsibly represented before me today by Mr Jay, instructed by Mr Palmer of the Treasury Solicitor (there is no question of any criticism being levelled against them), the Court cannot ignore the fact that for a very considerable period of time in the course of last summer the Secretary of State was simply not replying to letters written to him by solicitors on this applicant's behalf. On 14th June 1993 a letter was written to the Secretary of State saying:
"We should be grateful if you would give urgent attention to Mr Mahmod's case. He is currently detained in prison at H M Prison, Channings Wood, Newton Abbot, Devon pending deportation....."
and then the facts are gone into. No reply was received. On the 20th July the solicitors wrote again in what in the circumstances I would describe as terms of considerable restraint. They only said:
"It is now a considerable length of time since we heard from you, and Mr Mahmod has of course been in custody awaiting deportation since 2nd March 1993. An early response from you as to what is happening to our client would be much appreciated."
That was a letter to the Immigration Service in Croydon. A letter was also written to Secretary of State at the Home Office on the same date saying:
"We wrote to you on 14th June 1993 concerning the above named. We have not had any response from you whatsoever.We should appreciate a reply to our letter and an indication from you as to what is happening in this case."
Still they received no reply until 19th August 1993 when the Immigration and Nationality Department wrote and said:
"I apologise for the delay in replying. [They gave no explanation for it]I can assure you that your above named client's case is receiving our attention. Unfortunately negotiations with the German authorities to secure Mr Mahmod's return are proving protracted."
It is fair to add that the letter then indicates that the Secretary of State was prepared to consider the applicant's release subject to reporting restrictions if suitable accommodation became available. As I have said, however, the accommodation which shortly was to be on offer was not regarded as suitable.
It seems to me that the implied restriction of which Woolf J speaks in the Hardial Singh case, whose effect is that the power may only be exercised in effect for a reasonable period, is a necessary and salutary restriction in the name of the vindication of a detainee's fundamental rights. While, of course, Parliament is entitled to confer powers of administrative detention without trial, the Courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the Court according to high standards.
In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on. It is not necessary for me to make a finding as to what would have been a reasonable period for this man's continued detention under paragraph 2(3) since I am entirely satisfied that whatever such a period was it has certainly now been exceeded.
This is a case where at least by now it must be apparent to the Secretary of State that he is not going to be able, as Woolf J put it, "to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period". That being so, this applicant is entitled to the issue of a writ of habeas corpus for his immediate release, and I order the writ to go.