CO/23/2003 
Neutral Citation Number: [2003] EWHC  1530 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 16 June 2003
 
B E F O R E:

MR JUSTICE MAURICE KAY 

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THE QUEEN ON THE APPLICATION OF MOHAMED
(CLAIMANT)

-v- 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
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MS WEBBER (instructed by WINSTANLEY-BURGESS) appeared on behalf of the CLAIMANT
MR SAINI (instructed by TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
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J U D G M E N T 
(As Approved by the Court) 
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Crown copyright©
 
1.	MR JUSTICE MAURICE KAY:  By this application for judicial review, the claimant seeks to challenge the lawfulness of his detention pursuant to the Immigration Act 1971, following his successful appeal to the Immigration Appeal Tribunal.  The claimant is from Somalia.  He arrived in this country in August 1998 and was granted leave to enter for six months.  On 13th November 1998, he applied for asylum.  Before that application was processed, he was arrested and charged, initially with an offence of attempted rape.  His arrest occurred on 18th January 1999.  On 26th May 1999, in the Crown Court, he was sentenced to three years' imprisonment for indecent assault and was recommended for deportation.  The original allegation of attempted rape was not pursued.  The victim of the offence was an old age pensioner.  On any basis, it was a serious offence.  The sentence being one of three years, the claimant had, under the current legislation, a right to automatic release at the mid-point of the sentence, which occurred on 20th July 2000.  Shortly before that, on 20th June 2000, the Secretary of State authorised the detention of the claimant pursuant to paragraph 2(1) of schedule 3 to the Immigration Act 1971.  
2.	At this time, the asylum application seems to have continued in abeyance.  It was not until 18th December 2000 that the claimant was interviewed in that regard.  He had, of course, made the transition from convicted prisoner to immigration detainee on 20th July 2000.  At one point, the claimant became impatient at the lack of progress in relation to his asylum application, and it appears that he commenced judicial review proceedings in order to expedite that consideration.  The date upon which the Secretary of State proceeded to refuse asylum is thought to be 21st December 2001.  On 4th February 2002, he signed a deportation order, and this was served three days later.  On 25th February 2002, he refused to revoke that deportation order.  The claimant appealed against that decision and, on 12th June 2002, an adjudicator dismissed his appeal.  
3.	The claimant then appealed to the Immigration Appeal Tribunal, and in a determination promulgated on 29th November 2002 his appeal was allowed.  It is not necessary for me to go into the detail of his grounds of appeal or into the detail of the findings of the Immigration Appeal Tribunal.  Suffice it to say that the Tribunal concluded that the claimant belongs to a sub-clan in Somalia, which is not protected, and consequently he has a well-founded fear of persecution in Somalia for a Convention reason, and in addition, to return him to Somalia would place this country in breach of its obligation under Article 3 of the European Convention on Human Rights and Fundamental Freedoms.  
4.	As I have indicated, that determination of the Immigration Appeal Tribunal was promulgated on 29th November 2002.  Details of the chronology of subsequent events are important.  That determination is deemed under the Rules to have been notified to the Secretary of State on 1st December.  However, the evidence submitted to this court on behalf of the Secretary of State is to the effect that the determination was not received until 24th December.  I have to say that that evidence is not at all convincing.  It seeks to draw on some handwritten contemporaneous file notes and, in my judgment, properly and even generously construed, those file notes do not lead inexorably to a conclusion that the determination was not received until 24th December.  
5.	I observe in passing that on 27th December the officials on behalf of the Secretary of State were communicating with the claimant's solicitors, referring to consideration of a possible appeal "out of time."  Be that as it may, on 30th December, the Secretary of State lodged with the Immigration Appeal Tribunal an application seeking permission to appeal to the Court of Appeal.  At that time, the submitted grounds contended that the determination of the Immigration Appeal Tribunal had been against the weight of the evidence.  No more technical point of law was sought to be taken.  
6.	On 7th February 2003, the Immigration Appeal Tribunal refused permission to appeal.  It did so in terms which accepted that the Secretary of State had received the determination of 29th November on 20th December and that, therefore, the application for leave to appeal to the Court of Appeal was in time.  However, being evidence-based, it was considered not to disclose an arguable error of law.  What is certain is that that decision of the Immigration Appeal Tribunal refusing permission to appeal to the Court of Appeal was served on the Secretary of State on 18th February.  It follows that if the Secretary of State then wished to seek permission from the Court of Appeal itself, the time for so doing, unless extended, would expire on 4th March.  No application was lodged with the Court of Appeal by that date.  
7.	On 10th April 2003, the claimant was released.  At that time, still no application had been lodged with the Court of Appeal but it seems that, having obtained the advice of counsel, it was at about that time that the Secretary of State resolved to apply to the Court of Appeal for permission.  The application for permission was finally lodged in the Court of Appeal on 16th April.  That was almost five weeks out of time.  Regrettably, the documents submitted to the Court of Appeal contended that the application was out of time only by a period of some eight days.  
8.	The application to the Court of Appeal abandoned the basis upon which the proposed appeal had been put to the Immigration Appeal Tribunal.  The Secretary of State now accepts the Immigration Appeal Tribunal's findings on both asylum and Article 3 of the ECHR, but he seeks to raise a new point, not previously decided in the English courts.  It turns on the provisions of Article 33 of the Refugee Convention.  As is well known Article 33(1) prohibits a contracting state from returning a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.  Article 33(2) then goes on to state:
"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."
9.	The Secretary of State does not raise national security, but seeks to rely on the "particularly serious crime" provision.  He accepts that, at the moment, the finding of the Immigration Appeal Tribunal in relation to Article 3 of the ECHR would prevent the return of the claimant to Somalia, by reference to Article 33 of the Refugee Convention.  However, he contends that if circumstances in Somalia were to improve to the point that it would no longer be a breach of Article 3 to return the claimant, then at that point, Article 33 would permit return, notwithstanding the claimant's refugee status.  It is not suggested that such an improvement is imminent or presently foreseeable.
10.	The application to the Court of Appeal was dealt with by Laws LJ on paper on 22nd May 2003.  He granted an extension of time, although I observe again that the documents before him significantly understated the period by which time had expired.  He adjourned the application for permission to appeal into court on notice, directing that any appeal should follow if permission were granted.  He commented:
"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.
11.	I turn now to the legal framework within which this dispute occurs.  The power to detain pending deportation is to be found in paragraph 2(3) of schedule 3 to the Immigration Act 1971, the material parts of which provide:
"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 [1984] 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."
12.	In Wasfi Suleman Mahmod [1995] Imm AR 311, Laws J considered the Hardial Singh principles, and added at page 314:
"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."
13.	Similar provisions in the Hong Kong Immigration Ordinance were considered by the Privy Council in Tan Te Lam [1997] AC 97.  Lord Browne-Wilkinson expressly agreed with the Hardial Singh principles, and added at page 111:
"... 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 [2003] 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."
14.	Finally, in R v Special Adjudicator and the Secretary of State for the Home Department, ex parte B [1998] INLR 315, Kay J referred to the Secretary of State's policy documents in this area and emphasised the need for a careful reappraisal by the Secretary of State in the light of changing circumstances.  
15.	It is against the background of these authorities that I have to decide this case.  Miss Webber, on behalf of the claimant, puts the case on the basis of those authorities.  Whilst it is pleaded also by reference to Article 5 of the ECHR, she accepts that Article 5 adds nothing to the domestic law in these circumstances.  
16.	Essentially, the period of detention in dispute falls into two parts: first, the part which ran from the deemed date of notification of the determination of 29th November 2002 until 4th March 2003, being the date upon which time to apply to the Court of Appeal for permission to appeal expired; secondly, the period from that date, 4th March, until 10th April when the claimant was in fact released.  
17.	Dealing with the earlier period, on behalf of the Secretary of State, Mr Saini invites me to find that the Secretary of State did not receive the determination of the Immigration Appeal Tribunal until about 24th December.  That is the date contended for in the witness statement before me.  As I have recorded, the Immigration Appeal Tribunal accepted the date of 20th December, having regard to the documents that were placed before it.  On either basis, the application to the Immigration Appeal Tribunal would have been in time.  
18.	However, there is other material that I have to consider.  On 20th December, an adjudicator refused the claimant bail.  The material before him included a bail summary prepared by one of the Secretary of State's officials.  It is not a creditable document.  For one thing, it contains two proven factual errors.  It is stated that the asylum claim had originally been made on 18th December 2000.  If that had been so, it would have been at a time after the completion of the claimant's prison sentence, and might, in those circumstances, have given an impression of opportunism.  It also states:
"[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.  
19.	The case for the Secretary of State is that that person may not yet have seen the determination and may simply have known that the claimant's appeal had been successful without knowledge of the reasons.  The document was compiled on 19th December.  It refers to the decision of the IAT "being sent out on the 29th November".  It does nothing to persuade me that it was only on or after 20th December that the determination was, in fact, received.  It is also relevant that on 27th December the Secretary of State's officials were writing to the claimant's solicitors openly about consideration of an appeal, which was described as "out of time", which it would not have been had notification been received only on or after 20th December.  Although the Immigration Appeal Tribunal accepted 20th December as the date of receipt, I am not persuaded of that.  
20.	What of the appeal that was under consideration?  It simply sought to challenge the Immigration Appeal Tribunal's factual decision.  That is always a difficult matter.  On any objective appraisal, the prospects could not have been assessed as high.  Indeed, in my judgment, it would have been difficult to assess them as much higher than speculative.  It is also important to have regard to the context.  By that time, the claimant had served the requisite 18 months of his three-year sentence, but had been detained under the Immigration Act for a further two and a half years.  Accepting, as I do, that risk of absconding and further offending were matters for proper consideration, such material as there is suggests that the consideration was flawed.  There is no hard evidence of it, save for what appears in the bail summary to which I have referred.  There is no evidence of careful reappraisal at that stage, or of any attempt to weigh the long period of immigration detention against the perceived prospects of success in any appeal, and the duration of the appeal process.  The Secretary of State was entitled to consider his position, but it was incumbent upon him to address the continued detention of the claimant with the utmost care, particularly in regard to the history of the matter, to which I have referred.  I am not satisfied that he did so.  In my judgment, applying the authorities to which I have referred, the claimant was being unlawfully detained from about 21st December, and remained so until his release on 10th April 2003.  
21.	In view of that decision, it is not strictly necessary for me to consider the position which arose on 4th March, when time for making an in-time application to the Court of Appeal expired.  However, I shall address it in deference to counsels' submissions.  Given the history, including the duration of the detention under the Immigration Act, I find it impossible to say that to detain the claimant beyond the period for an in-time application to the Court of Appeal for permission to appeal was reasonable.  On any basis, the matter cried out for early attention.  Moreover, whatever may be the merits of the new ground of appeal based on Article 33, it should have been obvious that on the most favourable prognosis it would be a matter of months before an appeal could succeed in the Court of Appeal, and even if it did, it would be on the basis of a remittal to the Immigration Appeal Tribunal to consider the Article 33 point which had not been raised before it in 2002.  Even then, and assuming an outcome favourable to the Secretary of State, there is no material which supports an expectation that conditions in Somalia will improve in such a way and to such an extent as to enable the Secretary of State to rely on Article 33, unencumbered by the finding of the Immigration Appeal Tribunal on the human rights point.  
22.	In all these circumstances, I conclude that the claimant has been unlawfully detained for a period which ran from 21st December to 10th April.  I shall declare accordingly.  The claim form discloses an application for damages: if that is to be pursued, then it will have to be adjourned for appropriate consideration at another time.
23.	MS WEBBER:  I am grateful, my Lord.  There are just two minor inaccuracies in your Lordship's judgment, if I could point them out.
24.	MR JUSTICE MAURICE KAY:  Yes, please.
25.	MS WEBBER:  Your Lordship referred to paragraph 2(2) of schedule 3, very near the beginning of your Lordship's judgment, as being the initial basis of detention.  It should be paragraph 2(1).  That is detention pursuant to a recommendation for deportation.  
26.	The other matter, near the end of your Lordship's judgment, was simply your Lordship said "unsuccessful" meaning "successful".  In the paragraph starting, "Whatever the author of that document" (which is the bail summary) was doing, it was not a careful appraisal.  The Secretary of State said that that person may not have seen the determination and "may simply have known that the claimant's appeal had been unsuccessful": it should be "successful".
27.	MR JUSTICE MAURICE KAY:  Sorry, yes. 
28.	MS WEBBER:  My Lord, I would seek at this stage the claimant's costs for the Secretary of State for the proceedings -- 
29.	MR JUSTICE MAURICE KAY:  I do not suppose that is opposed, is it, Mr Saini? 
30.	MR SAINI:  No.
31.	MS WEBBER:  I do not know whether it will be necessary to come back for a hearing as to damages.  I do not really know what the normal course is, whether matters should be adjourned generally -- 
32.	MR SAINI:  My Lord, the direction that Kay J made in the B case was that the matter come back before a Queen's Bench judge, not necessarily an Administrative Court judge, for assessment of damages in the event that they cannot be agreed.  I would respectfully submit that perhaps that is the appropriate --
33.	MR JUSTICE MAURICE KAY:  What I did the last time I reached this point -- but not in an asylum case, it was in a prison case -- was to adjourn the matter back to myself for directions on the damages claim about a month after the initial judgment, so the parties could see whether it was settled or not; if not, it will be necessary to consider what kind of evidence needs to be filed and so on.  Subject to any further submissions, I am minded to do that.
34.	MS WEBBER:  Yes, my Lord.
35.	MR SAINI:  Yes, my Lord.
36.	MR JUSTICE MAURICE KAY:  I will adjourn it to myself for directions to be listed before the end of term, and encourage the parties to do their utmost to resolve the matter without the need for that and incurring greater costs.
37.	MS WEBBER:  I am grateful, my Lord.  I think I may also need a legal aid services commission certificate.
38.	MR JUSTICE MAURICE KAY:  There is not a certificate on file, but if you lodge one, you can have one within seven days. 
39.	MS WEBBER:  Thank you, my Lord.