QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF WILLY MUTWADI MPASI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr A Payne (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 16 October 2007
Crown Copyright ©
Mr Justice Beatson:
The factual background:
The Claimant's bail and subsequent detention:
The statutory framework:
"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given … [that he be deported]…, that person may be detained under the authority of an immigration officer pending –
(a) a decision whether or not to give such direction;
(b) his removal in pursuance of such directions."
"So long as a person is at large in the United Kingdom by virtue of this paragraph he shall be subject to such restrictions as to residence [as to his employment or occupation] and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer".
"[A chief immigration officer] or an adjudicator may release a person… [detained under paragraph 16(1), (1A) or (2)] on his entry into a recognisance… conditioned for his appearance before an immigration officer at a time and place named in the recognisance… or at such other time and place as may in the mean time be notified to him in writing by an immigration officer."
"(1) While a persons claim for asylum is pending he may not be-
removed from the United Kingdom in accordance with a provision of the Immigration Acts, or
required to leave the United Kingdom in accordance with a provision of the Immigration Acts.
(2) In this section –
(a) "claim for asylum" means a claim by a person that it would be contrary to the United Kingdom's obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and
(b) a persons claim is pending until he is given notice of the Secretary of State's decision on it.
(4) Nothing in this section shall prevent any of the following while a claim for asylum is pending –
(a) the giving of a direction for the claimants removal from the United Kingdom, … or
(c) the taking of any other interim or preparatory action."
"…as the power is given in order to enable the machinery of deportation to be carried out… the power of detention [is] 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."
"Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed."
"…as implicit that the Secretary of State should exercise all reasonable expedition to ensure that steps are taken which will be necessary to ensure the removal of the individual within a reasonable time"
"… 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 would be wrong for the Secretary of State to seek to exercise his power of detention."
The Secretary of State's policy on detention:
"Where proceedings have been initiated which challenge the right to remove an immigrant, it is not the policy of the Secretary of State to detain an immigrant on the ground that his removal is imminent. Normally, in such circumstances he will be granted temporary admission pending the result of those proceedings."
The Court also stated (at ) that an important aspect of the policy is that:
"… when deciding whether removal is imminent the immigration service will pay no regard to a statement by the immigrant, or those representing the immigrant, that proceedings challenging the right to remove the immigrant will be initiated."
"We can see nothing arbitrary or irrational about a policy under which members of the immigration service will detain a person whom they are about to remove, in circumstances where they have reason to doubt whether that person will provide the co-operation necessary for an orderly removal. We can see nothing arbitrary or irrational about a policy of not normally detaining an individual whom they would wish to remove, in circumstances where that person's removal is not imminent. The automatic presumption that removal is not imminent that applies as soon as judicial proceedings challenging removal are commenced will not always reflect reality. It is a pragmatic rule of thumb, which favours the immigrant. It avoids the necessity for immigration officials to attempt to evaluate the merits of each application for permission to seek judicial review." (at )
"nothing in [the] policy suggests, however, that removal will not be treated as imminent merely because there has been an intimation that suspensive proceedings will be commenced."
"Those acting for the detained immigrants in that case had given notice of their intention to seek judicial review. The court stated that, having regard to those aspects of the policy that had been made public, they could reasonably expect, that the immigrants would not be detained on the ground that their removal was imminent. "The only basis upon which the Immigration Service could treat [their] removal as imminent was by applying that aspect of the … policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public".
The legality of the detention from 8-24 November:
Detention between 24-30 November: