England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		5th December 2002

1. MR JUSTICE GOLDRING: This is an application for a writ of habeas corpus. The case was before Field J on 22nd November of this year when he adjourned it for ten days.

The essential facts

2. The essential facts are these. The claimant is 29. He comes from China. He arrived in the United Kingdom on 12th November 1995. He subsequently claimed political asylum. The application was refused on 6th August 1996. There was no appeal.
3. On the 19th March 1997 he was convicted of three charges of kidnapping, false imprisonment and blackmail. He was sentenced to a total of six years' imprisonment in 1997. The offences involved, I am told, another Chinese national. On 8th November 1999 he received what is described as his "early release decision". I quote from the documents submitted to the governor of Stocken Prison, where he was then detained:

"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."

4. An authority for detention was prepared. Among other things it recited that he was detained pursuant to paragraph 2(2) of schedule 3 of the Immigration Act 1971.
5. On 8th October 1998 the applicant had claimed asylum for a second time. It was on a different basis. He claimed that he would be at risk of further prosecution were he returned to China. Such prosecution, he suggested, would amount to persecution within the meaning of the Refugee Convention because of the offences he had committed in the United Kingdom against another Chinese national. The second asylum claim was refused and was certified. On 16th August 2000 his appeal was dismissed. The certificate was upheld. On 2nd October 2000 the defendant signed a deportation order. Thereafter the applicant was detained under section 2(3) of schedule 3 of the Immigration Act 1971.
6. The applicant made a third asylum claim on 8th December 2001. The basis of that third claim was that on the return to China of his co-defendant, he suffered harsh treatment. That third asylum application was refused in February 2002. The applicant and his then solicitors say that no notification of the result of that application was received until November 2002. I observe that on that third asylum application no human rights claim was made.
7. On 1st November 2002 the applicant submitted a human rights claim. That alleged that his human rights would be breached if he were returned to China. In addition to the matters relied upon in the third rejected asylum claim, there is an expert report from Michael Palmer which states that the applicant would be at risk of torture and possibly death were he returned to China. That is the only fresh matter relied upon.
8. That human rights claim has not yet been considered by the Secretary of State. However, it is already clear from what I have been told that the Secretary of State does not accept the factual basis of the human rights claim. The applicant has, since he was sentenced for those serious criminal offences to which I have referred, been in prison. He is at present in a category A prison. I am prepared to accept that his is an unpleasant situation to be in.

The issue of the applicant's co-operation

9. Detention under section 2(3) of schedule 3 of the Immigration Act 1971 began on 2nd October 2000. The Secretary of State alleges that the applicant has not co-operated since then with the authorities. He could have made his human rights claim on his third application for asylum. He did not. It was not reasonable to delay, whether or not he had received notification of the third asylum claim result.
10. There are grounds to believe he has not provided his correct address to the authorities. That is a matter in dispute, as the statements provided to me indicate. Mr Pole, the Chief Immigration Officer at the Immigration Service in Croydon says this (at paragraph 2 of his witness statement):

"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."

11. He also says this (at paragraph 38):

"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.

12. In April of 2001 the Chinese Embassy indicated that it would interview the applicant. In that way, among other things, the problems regarding his address could have been clarified. The applicant did not agree to such an interview unless his solicitor was present. There would be no question of the applicant seeing someone from the Chinese Embassy on his own. As I understand it, there would at least be a prisoner officer with him, for he would still be a person under detention. The Embassy did not agree to an interview in the presence of the applicant's solicitor. No such interview has, therefore, taken place.
13. The Secretary of State also submits that even in the absence of the applicant's co-operation, there is a realistic prospect of his removal. At paragraph 40 of Mr Pole's statement he says:

"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

14. The applicant was originally detained, as I have said, under section 2 of schedule 3 of the Immigration Act 1971. By subsection 2:

"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

15. In the case of R v Durham Prison Governor, ex parte Hardial Singh, reported in the 1984 Weekly Law Reports at page 704, Woolf J, as he then was, said this:

"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."

16. The provisions were recently considered by the Court of Appeal in the case of I (R on the application of) v Secretary of State for the Home Department, neutral citation 2002, EWCA Civ 888. I am told by Ms Giovannetti that a petition for leave was today granted in that case.
17. Dyson LJ, at page 11, sets out the principles which emerge from the legislation and the authorities:

"(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."

18. At paragraph 50 Dyson LJ considered the issue of non-co-operation. He said this:

"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."

19. Mummery LJ, on the other hand, appeared to regard non-co-operation as a matter of considerable importance. At paragraph 41 he said this:

"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."

20. Simon Brown LJ in paragraphs 31 and 32 dealt with this issue. He said this in paragraph 31:

"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.

21. The case of Mohamed Dahmani, reference CO/2947/97, was not, I am told, drawn to the attention of the Court of Appeal in the decision of I. The applicant had been detained for a period of some 19 months (a similar period to the detention in this case) under section 2(3) of schedule 3. I simply cite part of Keene J's judgment on page 4:

"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."

22. It seems to me I am entitled to approach the present case on this basis. Non-co-operation may not be decisive. It is, however, a relevant, possibly highly relevant, factor. If that were not so, the purpose of these provisions could deliberately be defeated by a determined applicant. It would be open to such a person simply to sit there and do nothing until return was no longer a realistic prospect. Such a person might well then disappear, having been released into the community. That person may, moreover, be somebody convicted of most serious criminal offences (as has the applicant in this case). It cannot have been Parliament's intention that the Act could be frustrated in that way.

How the applicant puts the case

23. Ms Atreya, on behalf of the applicant, submits the applicant has been in detention for three years. That whole period of time is relevant to the issue of whether removal is possible within a reasonable period. She refers to I. The obstacles, she submits, standing in the path of the Secretary of State, which are preventing deportation, are the problems of obtaining a travel document, and the further human rights claim which the defendant has yet to consider.
24. She submits that the applicant says that he has co-operated with the defendant on each occasion he has been required to. He has given details of his identity, his nationality, and his address. He has provided photographs. As to his refusal to be interviewed save in the presence of a solicitor, she submits he is afraid to attend at interview because of what happened to his co-defendant. That fear, she submits, is consistent with his fear of the Chinese authorities, which forms the basis of his human rights claim. That refusal, she submits, is a reasonable one in the circumstances.
25. As to the human rights claim, she submits the defendant has not yet considered it. She submits that, should it be refused, it is likely there would be an appeal. The earliest indication of when, she submits, there is to be a review of the travel documentation is 27th January 2003; see paragraph 4 of Mr Pole's witness statement.
26. She submits that the defendant has failed to take effective steps to surmount the obstacles so far as the applicant is concerned. She submits that the defendant is aware that there are existing difficulties in documenting those Chinese nationals without proper identity documents. The defendant has done nothing further to facilitate an interview at the Chinese Embassy since 2001. He has not given any assurances to the applicant that attending an interview will assist obtaining travel documents or that the interview will be, my words, "limited solely to travel document questions".
27. In addition the fact is relied upon of his detention in a category A prison, and the conditions of that detention. Ms Atreya also submits that the applicant has an incentive to keep in touch with the authorities because of his outstanding human rights claim. She submits he was assessed as suitable for release on licence three years ago.

The Secretary of State's response

28. Ms Giovannetti, as I have already foreshadowed, submits that this is a case of non-co-operation. There are no reasonable grounds for such non-co-operation. There are, in spite of that non-co-operation, practical prospects of the applicant's return to China.

My conclusion

29. I have concluded that this is a case of non-co-operation by the applicant. First, he has raised his human rights application at a very late stage. It could have been heard and disposed of one way or the other at the time of the third asylum application. Moreover, I observe that effectively he seems to be raising the same factual basis in the human rights application as was rejected in the asylum application, albeit he now has the additional expert report.
30. Second, while I understand his wish to have a solicitor present when seen at the Chinese Embassy, there is, in my view, no justification for such a condition. He would not be alone. He can report what transpires. Conceivably, what is said might assist his human rights claim.
31. Third, although not decisive, there are grounds to believe that he has not been frank about his address in China.
32. Additionally, this is not a case in which it can yet be said that he cannot be removed within a reasonable time. I refer to Mr Pole's comments quoted at paragraphs 40 and 41 of his statement.
33. Given the applicant's attitude so far, I am satisfied that his continued detention is reasonably necessary pending his removal.
34. However, this is a matter which must be kept under constant review. A review at the Chinese Embassy is anticipated on 27th January 2003. It seems to me sensible to adjourn this case to be reconsidered in the first week after that date, by which time the position should be clearer. A transcript of this judgment should be prepared for the judge at the next hearing. Thank you very much.
35. Is there anything you want to say, Ms Atreya?
36. MS ATREYA: Yes. The applicant is publicly funded, and therefore I would ask my Lord for an assessment of his legal aid costs.
37. MR JUSTICE GOLDRING: Certainly. I assume that the documentation has been lodged with the court.
38. MS ATREYA: That is my understanding. As you can see, I do not have a solicitor in court.
39. MR JUSTICE GOLDRING: I follow that entirely.
40. MS ATREYA: But if it has not been lodged, may I undertake to get the solicitors to lodge it within the next 24 hours? I believe it has been.
41. MR JUSTICE GOLDRING: Certainly. I accede to both those requests. Ms Giovannetti, is there anything you wish to say at all?
42. MS GIOVANNETTI: My Lord, no. My only suggestion would be that could a bundle be prepared for the next hearing?
43. MR JUSTICE GOLDRING: I think it would be very helpful to have a bundle for the next hearing, and it should be paged. May I suggest that there be both a fact bundle and a law bundle. I suppose the law bundle can be on the present basis. But the fact bundle, I think, should be prepared. I think it would be helpful if there are up to date skeletons from the applicant, and also from the Secretary of State.
44. MS GIOVANNETTI: I am sorry that you did not have the skeleton today. I am afraid I was still getting instructions in dribs and drabs yesterday evening. Could I suggest there be a timetable for that? Could we ask that the bundles be served on the Secretary of State by 26th January?
45. MR JUSTICE GOLDRING: That sounds to me to be sensible. Do you agree, Ms Atreya?
46. MS ATREYA: I would just say that in the nature that this case has had, there has been information up until the day before the day, and I wondered, given that the review is going to take place on 27th January, whether there is any practical value in having a date that --
47. MR JUSTICE GOLDRING: I am quite content to fix the date now for the next hearing. I did leave it slightly vague, but I am quite content to fix a date now, and then the timetable can be set by reference to that date. That would seem to me to be sensible. Let me just then have a look as to when -- 27th January is a Monday, in fact. Is there any reason why I should not fix it for the 31st, which will be the Friday of that week?
48. MS ATREYA: I would imagine that I am free on that day, but I cannot --
49. MR JUSTICE GOLDRING: I think there may be a problem in any event for Ms Giovannetti on that day. Would it be sensible -- I will provisionally fix it the following Monday.
50. MS ATREYA: Which is the -- I am sorry, I have lost track.
51. MR JUSTICE GOLDRING: The following Monday is 3rd February.
52. MS GIOVANNETTI: My only concern, my Lord, is in terms of fitting things in between those dates. Because if the review takes place on 27th January, it may well be that all is well and good with the travel document, and that if it has been issued at that point, then the matter will resolve itself. But if it were not, the Secretary of State would probably need to serve evidence on the applicant on the outcome of the review. So, there needs to be a skeleton by the applicant in reply to the Secretary of State. I am sure we will all do our best to comply with the timetable, but I wonder if it might be sensible to ask the Secretary of State to serve evidence on the applicant by, say, the 29th, which only gives 48 hours after the review, the applicant's skeleton filed by the 31st or by the Monday.
53. MR JUSTICE GOLDRING: I think, in fairness to Ms Atreya, that the weekend ought to be permitted to deal with that, which will then be the Monday.
54. MS GIOVANNETTI: We would be happy with as much time as the claimant needs. I am sure that she is torn between wanting to get the case back as quickly as possible and wanting that time to do a skeleton --
55. MR JUSTICE GOLDRING: Let us say Monday.
56. MS GIOVANNETTI: If we could have until the Wednesday to do the skeleton in reply, for the matter to be listed on the Thursday or Friday of that week.
57. MR JUSTICE GOLDRING: I would be happy to list on the Friday if that does not raise a problem for you on a personal basis.
58. MS GIOVANNETTI: No. I am normally available on Wednesday, Thursday and Friday, since I have had to change my Friday childcare to Tuesday to cover Tuesday's hearing.
59. MR JUSTICE GOLDRING: Ms Atreya, there is no mystery about it. I learnt this from a previous case in which Ms Giovannetti was appearing and that is why I made the observation.
60. MS GIOVANNETTI: I did not realise your Lordship had been informed of my difficulty, but thank you very much. It is very kind.
61. MR JUSTICE GOLDRING: Could I ask you just to set that out in writing between the two of you and submit the document to the court by way of an order. I will initial it and fix it for Friday 7th February. I think a time estimate of half an hour is too short. Should I say an hour? It is very difficult. It may be much shorter than that. We just do not know. Thank you both very much indeed.