QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MOHAMED BASHIR||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"I agree that we should now investigate whether Mr Bashir is willing to return on a voluntary basis to Iraq. If not, I think we will have to consider releasing on a restriction order. I agree that there is a risk that Mr Bashir will not comply with any conditions of temporary release given his behaviour in custody. I therefore propose that we maintain detention for a further month."
"I further note that the subject has no previous record of absconding and has been detained under immigration service powers since 25th March 2005. The subject's removal from the United Kingdom is not in prospect within a reasonable timescale and prolonged detention cannot continue indefinitely."
The latter entry was dated 19th April 2006.
"7. I then asked the claimant to explain why he was unable to return to Iraq at this time. He maintained the reasons given in his original claim. He came to the UK following his father's arrest for refusing to transfer his land to Arabs. He told me that since he has been in the UK he has only had contact with his brother Ahmed once. This was approximately ten months ago. He believes that his brother Ahmed may be in Mosul but living life as a fugitive. He has no idea about his parents or his sisters. He believes that his father has not been seen since his arrest in 2002 and may be dead.
8. I put it to the claimant that the situation for his family would have changed by now as a result of regime change. He refuted this. He emphasised that the same people working for the ex-government were still in control and therefore he and his family still faced the same perils. He emphasised that he was very scared of returning to Mosul. He was certain that he would be targeted by Arabs who knew him and his family. Moreover he emphasised that the generic situation was diabolical and that most Iraqis who were able to were leaving the country as a result of a deteriorating security climate.
9. At this point I refer the claimant to the Secretary of State's reference in his letter dated 30th May 2007 where he refers to 21 Iraqis returning voluntarily. In reply the claimant understandably pointed out that he did not know these individuals and could not comment on their circumstances. It is emphasised, however, that most Iraqis who could were leaving the country. His views are substantiated by reports that there has been an exodus of at least 2 million Iraqi refugees now living outside Iraq, mainly in Syria and Jordan."
"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."
A deportation order is an order requiring such a person to leave; see section 5(1) and rule 362 of the Immigration Rules. The Secretary of State accordingly has the power to detain someone pending either his removal or his departure.
"First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case."
"The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty."
"That purpose" is "to bring about his removal or departure".
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."
Longmore LJ agreed with Toulson LJ's reasoning and it clearly forms the ratio of the case. It is unnecessary for me to consider the observations of Keene LJ, who expressed himself in slightly different terms.