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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sedrati & Ors, R (on the application of) v Secretary of State for the Home Department [2001] EWHC Admin 418 (17 May 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/418.html
Cite as: [2001] EWHC Admin 418
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QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Strand London WC2 |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF | ||
| SEDRATI, BUITRAGO-LOPEZ AND ANAGHATU | ||
| -v- | ||
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
____________________
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
MR N BLAKE QC and MS S HARRISON (instructed by FISHER MEREDITH, LONDON SW4 6TA) appeared on behalf of the Claimant Buitrago Lopez.
MR N BLAKE QC and MR S TAGHAVI (instructed by GILL & CO, LONDON WC1X 8PQ) appeared on behalf of the Claimant Anaghatu.
MR J HOWELL QC and MR S KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
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Crown Copyright ©
- MR JUSTICE MOSES: Due to the diligence of all counsel involved, and those instructing them, an issue that is of some importance has been resolved arising out of the facilities for insuring that those in detention pending a recommendation for deportation, following a sentence of imprisonment, do not remain in detention in circumstances which infringe their rights under article 5 of the Convention. It is accepted in this case that the decision not to release the particular claimants involved should be quashed. But a point has arisen as to whether there should be a declaration that the terms of schedule 3 paragraph 2 of the Immigration Act 1971 do not create a presumption in favour of detention upon completion of a sentence of imprisonment.
- At one stage during the course of consideration of the detention of these claimants, it had become apparent that officials were taking the view that there was a presumption. I am not wholly surprised having regard to the wording on paragraph 2, although it raised questions as to whether, if there was a presumption, that was compatible with article 5. Nevertheless, the Secretary of State very fairly, as soon as his mind was drawn to this point, took legal advice, received sensible legal advice, and has not persisted in taking that view. In those circumstances Mr Howell QC, on his behalf, says it is quite unnecessary for me to make the declaration.
- On the other hand Mr Blake QC, for all these claimants, says, accidents do happen and even though their policy document is now going to be prepared consistent with the view that the Secretary of State now takes, one never knows what is going to happen in front of some adjudicator.
- I think his fears may well be exaggerated, but nevertheless, underlying these cases there did arise a very important point which I am happy to say now seems to have been resolved. But it seems to me the importance and significance of that point, and in particular the importance of compliance with all these procedures, which are really very difficult to follow from the terms of the legislation, should be marked by my making a declaration in this case; in other words I do not accept it is academic. It does seem to me important, as one wades through the minefield of legislation, that things should be as clear as they possibly can and in those circumstances I shall make the declaration in those terms.