QUEEN'S BENCH DIVISION
B e f o r e :
|WEI MING CHEN||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS GIOVANNETTI (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
The essential facts
"Further to the early release review for the above named inmate, it has been decided that the inmate should be released on licence on 12 November 1999. His removal from this country is still being considered by Immigration Authorities. In the meantime he will be detained under the Immigration Acts 1971 and 1988. A licence to this effect should therefore be prepared and the inmate informed of the decision."
The issue of the applicant's co-operation
"In my experience of dealing with the Chinese authorities, new applications for travel documents, submitted without any supporting documentary evidence, such as a birth certificate, identity card or expired passport, as in this case, generally take twelve to eighteen months to process. However, all such applications depend on the Applicant giving correct and comprehensive information regarding his own personal details and referees in China. In my experience, where an individual provides satisfactory supporting documentary evidence this usually assists the PRC ["Peoples Republic of China"] to reach a decision more quickly.
When an application without supporting documentary evidence is received and checked by the PRC, my information is that it is then forwarded to China for information to be verified. It must also be noted that the process is largely dependent on the co-operation of the Applicant and the accuracy of the information supplied to the authorities. Consequently, it is difficult to provide a definitive time-scale for the verification process."
"On 17 September 2002, ISDU ["Immigration Service Documentation Unit"] spoke to the PRC who advised that the address we faxed was incorrect: the street number given was too high, although checks would be made in China."
In his witness statement the applicant refutes that.
"On 13 November 2002, ISDU contacted the PRC who confirmed that the information had been referred out to China for clearance. They advised that it would take approximately 1-2 months to receive a reply."
At paragraph 41:
"The Applicant has been detained since 27 December 2000 awaiting the issue of a travel document. I am aware of our obligation to exercise all practical expedition to ensure that all necessary steps are taken for the removal of the detainee within a reasonable time. I believe that the Immigration Service Documentation Unit has complied with that obligation. The travel document application will be reviewed again with the Embassy of the Peoples Republic of China on 27 January 2003."
The relevant statutory provisions
"Where notice has been given to a person in accordance with regulations under section 18 of this Act of a decision to make a deportation order against him, and he is neither detained in pursuance of the sentence or order of a court nor for the time being released on bail by a court having power so to release him, he may be detained under the authority of the Secretary of State pending the making of a deportation order."
Subsection 3 is the material section for present purposes:
"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 relevant authorities
"Under Schedule 3 to the Immigration Act 1971 the Secretary of State has the power to detain an individual who is the subject of a decision to make a deportation order, under paragraph 2(2) of the Schedule, pending the making of the deportation order. That power requires the person to be detained under paragraph 2(3) after the making of a deportation order and pending the removal of the person from the United Kingdom. Since 20 July 1983, the applicant has been detained under the power contained in paragraph 2(3) of Schedule 3 to the Immigration Act 1971. 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 for 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 powers 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."
"(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 that 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.
Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.
It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight."
At paragraph 51, however, he says:
"But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable."
"As the appellant does not want to go back to Afghanistan, refuses to co-operate with the authorities to return voluntarily and has so far had no success in his asylum claims, there are, in my judgment, reasonable grounds for believing that, given the chance, he will probably seek to frustrate attempts to remove him under the deportation order before it is possible to carry it into effect. So, there is a real risk that, if he is now released from his present detention under paragraph 2(3) of schedule 3 to the Immigration Act 1971, he will probably abscond and never return to Afghanistan."
At paragraph 43 he says:
"In my judgment, the Secretary of State has supplied a valid justification of the detention to date and of the need for it to continue for a longer period. In addition to the risk that the appellant will probably abscond if he is now released, the Secretary of State reasonably relies on continuing efforts on his behalf to operate the machinery for the appellant's removal."
"But that is not to say that the court should ignore entirely the applicant's ability to end his detention by returning home voluntarily."
At paragraph 32:
"As it seems to me, however, this consideration is of relatively limited relevance in the circumstances of the present case."
In other words, he did not regard non-co-operation on the facts of that particular case to be of decisive importance.
"Miss Giovannetti has also drawn my attention to the case of Lehchibi, a judgment handed down on 21st January by Mr Justice Latham, which refers to the factor of how far an applicant has contributed to his own misfortune in the sense of delaying his removal through his own lack of co-operation. It seems to me that that becomes relevant because it may mean that whatever steps the Home Secretary has taken, they become all the more reasonable because of the problems created by the applicant himself.
The position in the present case is that in my judgment the applicant has been responsible for a substantial part of the delay which has occurred in this case."
A little later on, page 5:
"In addition, as I have indicated, it seems to me that the responsibility for a large part of that 19 months of detention rests, at least partly if not largely, with the applicant himself because of the lack of co-operation to which I have referred earlier."
How the applicant puts the case
The Secretary of State's response