QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF H||(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 A PAYNE (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"Case was passed to me by case worker. She has agreed there is enough evidence on file to treat this person as a Kenyan (see letter from Department of Immigration dated 29/10/93) and not Somali."
There is a similar note to the effect that "there is weighty evidence to suggest that he is Kenyan" on 3rd February of that year.
"Prison informed me that [Mr S] does not wish to appeal against destination."
This is the first of a number of examples of what appear to be unlikely suggestions because on the very same day the claimant filled in and signed a notice of appeal. He describes himself as Somalian in the notice and he wrote:
"I am appealing for decision as being taken against me. I run torture in Somalia and killing. My life was in danger back home. I think I come this country my life will be fine. The decision to deporting me to Kenya which is not my country. How can deport me to Kenya? I don't know no-one over there. I left my mother over there since 1993. I have no contact with my mother. I don't know she still alive or no. I will be in big trouble if you send me to Kenya or Somalia. I know my crime is serious but I am human being. Please forgive me for what I have done."
"It had been decided to deport the appellant to Kenya since he travelled to the UK with a Kenyan passport which had been validated by the Kenyan authorities in a letter dated 29/10/93 to belong to the appellant. The appellant had claimed the passport was a forgery necessary to help him travel from Kenya where he had taken a plane after fleeing from his native Somalia. The appellant said he did not wish to travel either to Kenya or Somalia and he wished to go to Canada. I explained to him that travel to Canada was not an option and he had to choose from either Somalia or Kenya and to give me good reasons for his choice. The appellant did not wish to travel to either country, stating he would prefer to stay in prison in the UK. I pointed out to him that there seemed to be good evidence that the passport issued in his name was valid and that all the evidence pointed to him being Kenyan. Failing any representation to convince me otherwise, I have no alternative but to order that the destination should be Kenya."
He therefore made that order.
"The above named was brought to this office for the purpose of interview with a view to issuing him with an emergency certificate to enable you to deport him to Kenya. The subject states that he is [he gives the name that he has always said was his true name] born in Kismayo, Somalia and that he is not a Kenyan. He says that he travelled on a Kenyan passport which was bought in Mombasa. He stated that if he has to be deported then he does not mind being sent to Kismayo rather than Kenya. In view of his statement and explanation we cannot issue him with a Kenyan travel document. We can only issue one if we are certain the subject is a Kenyan citizen."
"This will require the approval of the Director. The subject was interviewed by the Kenyan High Commission and was deemed not to be Kenyan. In fact he is now declaring he is a Somali and wishes to return home. I therefore intend to carry out a biodata interview and ask him to sign a disclaimer as removals to Somalia are on a voluntary basis only. In these circumstances, I propose to maintain detention to effect possible removal."
Assuming that that entry was based upon the letter from the Kenyan authorities to which I have just referred, the statement that he wishes to return home overstates the position considerably and may be another example, like the one I referred to in respect of 28th February 2003, of wishful thinking.
"Immigration officer telephoned from Campsfield stating [the claimant] told her he wishes to return to Somalia. Disclaimer faxed to subject. He refused to sign the disclaimer."
The latter is undoubtedly the case because there is a copy of the disclaimer with an endorsement indicating that the claimant had refused to sign it. The question of this claimant wishing to return to Somalia is one about which the court entertains the gravest doubts. It is certainly not borne out by most of the documentation and the claimant's general attitude as witnessed by his own handwriting on his original appeal form.
"There is currently no policy that precludes removals to any part of Somalia. The enforcement of returns is hindered only by temporary practical obstacles relating to the unwillingness of carriers to transport enforced removals. These concerns are in the process of being resolved through negotiations. As such, any Somali failed asylum seeker or person with no legal basis of stay in the UK is liable for removal. Voluntary returns are possible to any region and these can be implemented immediately.
There is currently agreement with carriers in terms of returns to Somaliland of failed asylum seekers from that region, and these are taking place.
In terms of return to other areas of Somalia the profile for the first of those to be returned are --
(1) Single males [this claimant is a single male].
(2) Those with criminal convictions [likewise].
(3) Failed asylum seekers from the region of Mogadishu.
This was the strategy that was adopted when removals were carried out between March and June 2004, and it proved successful. However, this was subsequently stopped not because it was unsafe to return failed asylum seekers fitting the above profile but due to issues with carriers.
Consequently, the claimant in the current case would be one of the first returned once the practical arrangements with the relevant carrier can be put in place. The issues with the carriers are in the process of being resolved through ongoing negotiations."
"Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either --
(a) a country of which he is a national or citizen; or
(b) a country or territory to which there is reason to believe that he will be admitted."
Paragraph 2 deals with detention or control pending deportation. Subparagraph (2) reads:
"Where notice has been given to a person in accordance with regulations under [section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)] 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 the deportation order.
(3) 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)."
"(1) There is a presumption in favour of temporary admission or temporary release.
(2) There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
(3) All reasonable alternatives to detention must be considered before detention is authorised.
(4) Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
(5) There are no statutory criteria for detention, and each case must be considered on its individual merits.
(6) The following factors must be taken into account when considering the need for initial or continued detention."
The factors include:
"What is the likelihood of the person being removed and if so after what timescale?
Is there any evidence of previous absconding?
Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
Has the subject taken part in a determined attempt to breach the immigration laws?
Is there a previous history of complying with the requirements of immigration control?
What are the person's ties with the United Kingdom?
What are the individual's expectations about the outcome of the case?
Are there factors such as an outstanding appeal, application for judicial review or representations which afford incentive to keep in touch?"
"There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J [as he then was] in R v Durham Prison ex parte Singh  1 WLR 704, at 706D, in the passage quoted by Simon Brown LJ, at para  above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Superintendent of Tai A Chau Detention Centre  AC 97, at 111A-D, in the passage quoted by Simon Brown LJ, at para  above. In my judgment, Mr Robb corrected correctly submitted that the following four principles emerge:
(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."
He went on to explain that principles (ii) and (iii) are conceptually distinct. In this case Miss Harrison relied on both. At paragraph 48 he went on:
"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 para 2(3) of Sch 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 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.
(49) Simon Brown LJ has identified the three main points of principle which were in issue in the present appeal, namely, the risk of absconding and reoffending, the appellant's refusal to accept voluntary repatriation, and the asylum claim and appeal. As I have already stated, the risk of absconding and offending or reoffending is relevant to the reasonableness of the length of a detention pending deportation. It is, as Simon Brown LJ says, 'an obviously relevant circumstance' . . . "
(50) 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."
He deals with why, in that particular case, he felt that a refusal of the voluntary was of little weight. For reasons which I will come to, I have come to the same conclusion in this case. He continues:
"(52) I turn to Mr Robb's second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance, namely the likelihood that a detained person will abscond if released.
(53) But 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.
(54) Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal of a detained person of an offer of voluntary repatriation that, if released, he will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case. It is not at all surprising that this appellant has refused voluntary repatriation. He has not yet exhausted the asylum process, which, if successful, would permit him to remain in the UK. In these circumstances, why should one infer from the refusal of voluntary repatriation that, if released, he would abscond? In my judgment, the most that can be said is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases."
"The true position in my judgment is this. 'Pending' in paragraph 16 means no more than 'until'. The word is being used as a preposition not as an adjective. Paragraph 16 does not say that the removal must be 'pending', still less that it must be 'impending'. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (ie, throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under para 21."