QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MOHAMED||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR SAINI (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
"The issue as to Article 33(2) ... is clearly important and will merit the attention of the Court of Appeal, but the fact that it was not raised in the IAT may mean that this is not the case to ventilate it; and for all I know, had it been raised below, relevant evidence might have been adduced. These questions should be debated at a hearing on notice of the permission application, where the parties should also be ready to deal with the substantive appeal if permission is granted."
The hearing anticipated by that order has yet to take place.
"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 subparagraph (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)."
It is now common ground that that provision applies to this case and that a relevant deportation order was in force at all material times during which the claimant was detained under the Immigration Act. There is a line of authority which deals with the exercise of the power under schedule 3, paragraph 2(3). It begins with the decision of Woolf J, as he then was, in Regina v Governor of Durham Prison, ex parte Hardial Singh  1 WLR 604, wherein it is stated, at page 706:
"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."
"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."
"... if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised ... the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time."
He also added at page 114 that the burden lies on the executive to prove on the balance of probabilities the facts necessary to justify the conclusion that a detainee is being detained "pending removal". The authorities were reviewed by Simon Brown LJ in R(I) v Secretary of State for the Home Department  INLR 196. He added at page 205:
"The likelihood or otherwise of the detainee absconding and/or re-offending seems to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee's removal abroad."
Dyson LJ added, at page 209:
"... there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake."
"[The claimant] is a known sex offender and it is highly likely that he could reoffend. The Home Office previously failed to act on a court recommendation that he should not be released and as a result he committed a further offence."
I do not know where that final observation came from but it is accepted on behalf of the Secretary of State that it is utterly erroneous. There is no evidence of any offence other than the one in respect of which the claimant was convicted. Whatever the author of that document was doing, he cannot be said to have been party to a careful reappraisal.