QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF FRANCHOU BADJOKO||(CLAIMANT)|
|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)
MR T OTTY (instructed the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The claimant has merely repeated his case to the adjudicator. He has identified no error of law by the Immigration Appeal Tribunal. The adjudicator disbelieved the claimant on essential parts of his evidence. He was entitled to do so for the reasons mentioned in the determination."
" ..... I can confirm to you the current situation relating to the return of nationals to the DRC. The Immigration Service met with officials from the embassy of the DRC on 27 November 2002 where it was agreed that nationals of the DRC could be returned there using an EU letter and that they were content, in principle, to returns by charter flights. This would resolve any difficulties that were being faced by the non-acceptance of EU letters by transit States.
Colleagues from the Immigration Service expect to meet again with the embassy of the DRC in the week beginning 24 February to discuss arrangements for the return of a number of individuals from the DRC. We are confident that once this meeting has taken place that we will be in a position to set removal directions relating to those individuals that those removal directions will take effect as soon as practically possible after that meeting."
In February another bail application was made but was withdrawn. In that month the claimant indicated his willingness to return to the Democratic Republic of Congo, although the following month he failed to complete, or refused to complete, emergency travel documentation. In March the same official of the Management of Detained Cases Unit wrote:
"No removal directions have yet been set relating to any people who we are proposing to remove to Kinshasa by charter flight. This is because the aircraft has not yet been chartered and we are awaiting clearance of the passenger manifest by the DRC Embassy."
"I agree that many of these cases have now been in detention for a fairly long period. This is for a variety of reasons, but I now consider that we are in a position to remove these cases in the near future. I consider that further detention remains reasonable in all the circumstances but each case is reviewed regularly and will be reviewed in the light of comments received back from the Embassy."
On 18 March a further bail application was made and withdrawn. In the following month there was an unsuccessful bail application.
" ..... the length of Mr Badjoko's detention has been as a consequence of his own actions. Removal directions have been set on two previous occasions only to be frustrated by a last minute application for judicial review and then due to your client's disruptive behaviour resulting in the airline refusing to carry him. Since then your client has consistently displayed disruptive behaviour and has also refused to co-operate with all attempts to obtain a travel document to help facilitate his removal.
Rest assured your client's case is reviewed regularly and any change in circumstances will be taken into consideration when reviewing his case. I would now advise you to speak to Mr Badjoko and advise him to co-operate with the travel documentation process, his lack of co-operation is only serving to prolong the duration of his detention."
In the event, on 13 June, the form was completed by the Unit following refusal of the claimant to co-operate.
" ..... the length of your client's detention has been as a consequence of his own actions. Removal directions have been set on two previous occasions only to be frustrated by a last minute application for judicial review and then due to your client's disruptive behaviour resulting in the airline refusing to carry him. Since then your client has consistently displayed disruptive behaviour and has also refused to co-operate with all attempts to obtain a travel document to help facilitate his removal. It is not our policy to reward such behaviour by granting temporary admission as this sends out the wrong signals to other detainees. Going on Mr Badjoko's behaviour throughout his time in detention we could also have no confidence that he would maintain contact should be released from detention."
As I have indicated, on 23 July an application was made to Mr Justice Richards and so this judicial procedure commenced.
"Where a deportation order is enforced against any person he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom."
"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, the authority draws attention to the individual being detained ' ..... 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 confined and limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of a 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, removing persons whom it is intended to be deported within a reasonable period it seems to me to 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 the steps taken which would be necessary to ensure the removal of an individual within a reasonable time."
"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 ..... 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 the 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."
Lord Justice Dyson summarised Tan Te Lam (above) in the following four propositions at paragraph 46:
"(1) The Secretary of State must intend to deport the person and can only have power to detain for that purpose; (2) the deportee may only be detained for a period that is reasonable in the circumstances; (3) if, before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within that reasonable period he should not seek to exercise the power of detention; (4) the Secretary of State should act with reasonable diligence and expedition to effect removal."
"The applicant has been detained for a total of 17 months, which is a very long time indeed. Whilst it is true that the applicant did resist removal and this is a factor, which goes to the question of whether, he would abscond (and hence go to the issue of reasonableness of continued detention). The fact is that this took place as long ago as October 2002. Further in light of what the applicant has been told by fellow detainees and previous representatives ..... the fact that he resisted removal at that time has only limited bearing on whether he will abscond now. Indeed it would appear that CIPU are taking the risk to return failed asylum seekers very seriously. It should also be noted that the applicant has otherwise abided by all the [Immigration Service's] instructions in the past and there are no other reasons why it should be said that he is likely to abscond over and above those that would apply to any failed asylum seeker. Indeed his only failure to follow the [Immigration Service's] instructions was when he was convinced (not unreasonably) that the DRC was detaining and ill-treating returnees like himself. At the current time the CIPU is looking into this matter and this will take several months - presumably even in the unlikely event that the [Immigration Service] and the DRC Embassy could reach a decision where removal could take place this would not in any event occur until the CIPU has completed its investigations."
Order: Application dismissed