QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|MAJID RASHID HWEZ|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Monica Carss-Frisk QC and Mr.Robin Tam appeared for the Defendant.
AS APPROVED BY THE COURT
Crown Copyright ©
"I have given/propose to give directions for your removal by a scheduled service at a time and date to be notified to (country/territory) IRAQ".
"To that end, the Government is in the process of exploring the options for returning Iraqi citizens of Kurdish origin to the northern part of Iraq, and these arrangements will be used to return such Iraqi nationals as do not qualify for leave to enter or remain in the United Kingdom".
"The Secretary of State accepts that to refuse to grant exceptional leave to enter may be unreasonable if there is no reasonable prospect whatsoever of removing a person from this country".
"It remains our intention, subject to the outcome of his appeal, to remove him to northern Iraq. As you are aware, we have been exploring a number of options for returning Iraqi Kurds to northern Iraq through various neighbouring countries. … Whilst it is the case that matters are taking longer to conclude than we would ideally like, progress is being made and our work continues. However, these negotiations are sensitive and to reveal more of their details would risk jeopardising their outcome.
"You state that granting Mr.Hwez exceptional leave for 12 months at this stage, presumably on the grounds of non returnability, would have no adverse consequences for the Home Office because the leave could be "cancelled" at any later point when circumstances changed. That is not the case. None of the limited circumstances set out in Paragraph 323 of HC 395 under which curtailment of limited leave is permitted would apply to his case and there would be no power to enforce removal before the expiry of the 12 month period.
"In fact, there is every reason to believe that removal would not be possible for considerably longer. …"
"Removal directions have now been given for your removal from the United Kingdom by scheduled airline to IRAQ at a time and date to be notified".
The statutory framework
"Those not having [the right of abode] … may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; …".
"(1) Except as otherwise provided by or under this Act, where a person is not a British subject -
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be subject to all or any of the following conditions, namely -
(i) a condition restricting his employment or occupation in the United Kingdom;
(ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds; and
(iii) a condition requiring him to register with the police.
"(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any period for which leave is to be given and the conditions to be attached in different circumstances; … .
"(3) In the case of a limited leave to enter or remain in the United Kingdom, -
(a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions …;"
"The provisions of Schedule 2 to this Act shall have effect with respect to-
(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully; and
(d) the detention of persons pending examination or pending removal from the United Kingdom;
and for other purposes supplementary to the foregoing provisions of this Act".
"An immigration officer may examine any persons who have arrived in the United Kingdom by ship or aircraft … for the purpose of determining -
(c) whether, if he may not [enter the United Kingdom without leave] -
(ii) he should be given leave and for what period or on what conditions (if any), or
(iii) he should be refused leave".
"(1) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below -
(c) give … [the owners or agents of the ship or aircraft in which he arrives] directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the direction to a country or territory so specified being either -
(i) a country of which he is a national or citizen; or
(iv) a country or territory to which there is reason to believe that he will be admitted.
"(2) No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom except that directions may be given under sub-paragraph (1) …(c) after the end of that period if the immigration officer has within that period given written notice to the owners or agents in question of his intention to give directions to them in respect of that person".
And paragraph 9(1) reads:
"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give such directions in respect of him as in a case within paragraph 8 are authorised by paragraph 8(1)".
"Where it appears to the Secretary of State either -
(a) that directions might be given in respect of a person under paragraph 8 or 9 above, but that it is not practicable for them to be given or that, if given, they would be ineffective; …
then the Secretary of State may give to the owners or agents of any ship or aircraft any such directions in respect of that person as are authorised by paragraph 8(1)(c)".
By paragraph 16(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 10 …, 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".
And by paragraph 21
"(1) A person liable to detention or detained under paragraph 16 above may … be temporarily admitted to the United Kingdom without being detained …; but this shall not prejudice any later exercise of the power to detain him.
"(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may be notified to him in writing by an immigration officer".
The Claimants' first argument
"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 is it subject to limitations. … 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 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.
"In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time".
"The issue therefore in the present case is whether the determination of the facts relevant to the question whether the applicants were being detained "pending removal" goes to the jurisdiction of the director to detain or to the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13 the Defendant, the director has no power at all".
The Claimants' second and third arguments
"A period of one year's [exceptional leave to remain] (not four years) should normally be granted to Somalis who are not granted asylum and who do not come from Somaliland or Puntland. This is in recognition of the current practical difficulty in effecting returns to areas other than Somaliland and Puntland rather than on any particular human rights grounds".
"Exceptional leave to enter or remain in this context is that given to people who have sought asylum in this country, who have not been granted
refugee status, but who have been allowed to remain outside the normal provisions of the Immigration Rules. …
Exceptional leave may be granted on the basis of:
* likely difficulty in enforcing departure from the United Kingdom".
"… A few Iraqis have departed voluntarily, travelling via Jordan and some, with the assistance of IOM [International Organisation for Migration], have returned via Turkey. If any Iraqi failed asylum seeker were to reach the removal stage the Immigration Service will investigate any viable option".