CO/5936/2007 
Neutral Citation Number: [2007] EWHC 3017 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 30th November 2007
 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
THE QUEEN ON THE APPLICATION OF MOHAMED BASHIR 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr David Jones (instructed by Popkin & Co Solicitors, London) appeared on behalf of the Claimant
Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

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J U D G M E N T
1.	MR JUSTICE MITTING:  The claimant is a citizen of Iraq and is now aged 24.  He lived in Mosul.  He is a Kurd.  On 3rd June 2002, he arrived in the United Kingdom illegally and claimed asylum on the following day, claiming that he feared persecution under the then regime.  On 23rd June 2003, he committed, together with another young man, an offence of street robbery.  On 10th December 2003, he was convicted of robbery on his own plea of guilty and sentenced by HHJ Cole at Coventry Crown Court to three and a half years' detention.  No pre‑sentence report was prepared and it seems that the court had little information about him beyond the facts of the offence.  
2.	A recommendation for deportation was made.  On 25th March 2005 the claimant completed the custodial part of his detention sentence and was then immediately detained by the immigration authorities under immigration powers.  He has been in custody ever since.  On 1st April 2005 a deportation order was served.  He did not appeal against it.  On 6th September 2005 a notice of a decision to make a deportation order was served and on 4th October 2005 he lodged an appeal against it.  In the course of those proceedings he made two applications for bail, which were refused.  On 15th December 2005 his appeal against deportation was dismissed.  He represented himself.  The immigration judge concluded that by reason of the offence which he had committed, it was conducive to the public good that he should be deported. 
3.	The immigration judge briefly considered conditions in the Mosul area of Iraq and concluded that there was no risk to the claimant as an individual but that there could be no guarantee of his safety because it was a fact of life "that the position in Iraq at present is far from satisfactory".  Accordingly, he rejected the claimant's asylum claim and upheld the deportation order.  He dealt with the human rights basis of the appeal in short order, giving explicit consideration only to an article 8 claim, but in fact dismissing human rights appeals under both Articles 3 and 8.  He did not expressly consider what would now be called the humanitarian protection issue and which would then have fallen to be considered under Article 3 but it can be taken that he did not consider that there was any insuperable obstacle under Article 3 by reason of any lack of protection afforded to him by the Iraqi state should he return to Mosul.  
4.	His appeal rights were exhausted shortly after 15th December 2005.  Ever since that time he has been detained in immigration detention.  His detention has, as is required, been periodically reviewed.  From 10th December 2005 onwards, he was periodically notified that it was decided to continue to detain him for the following reasons: first, there was reason to believe that he would fail to comply with conditions attached to the grant of temporary admission or release; secondly, he had failed to observe UK immigration laws; thirdly, he had entered the United Kingdom illegally; fourthly, he did not have enough close ties to make it likely that he would stay in one place. 
5.	When the grounds came to be reviewed by more senior officers, as is required after the elapse of several months, more detailed consideration was given to the grounds upon which his continued detention could be justified.  They were put before immigration judges on several occasions when he applied for bail.  The document of 22nd January 2007 is an example of such reasons.  They include the following: that he had been convicted of a serious crime; that he had shown a blatant disregard for the immigration and criminal laws of the United Kingdom; that he had little incentive to remain in contact with the Home Office; that he had no known or proven ties in the United Kingdom; that he had offered no recognisance or suitable surety; and, significantly, that the Home Office was making arrangements for a flight to Iraq "in the near future".  Therefore, "it is anticipated that deportation will take place within a reasonable timescale".  
6.	When refusing bail, the immigration judges gave as their reasons that there was a substantial ground for believing that the claimant would abscond, that he had failed to cooperate in the removal process and that his removal would take place "soon" (8th November 2006 and 2nd February 2007). 
7.	It is of some interest that in an internal document, prepared towards the beginning of this period of administrative detention on 28th March 2006, an official wrote as follows:
"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."
And:
"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. 
8.	No attempt has ever been made to remove the claimant forcibly.  The reason for that is explained in the witness statement of Hannah Honeyman, prepared for an earlier case of an Iraqi detainee heard by Beatson J, MMH and SRH v Secretary of State for the Home Department [2007] EWHC 2134 (Admin).  She explained that those who were willing to return to Baghdad and do not need escorting can be returned on scheduled flights but those who would not cooperate with removal would ordinarily have to be escorted to their destination.  In the case of removal to Iraq, that is not possible.  Removals are effected either to Baghdad or, in the case of the three northern provinces controlled by the Kurdish regional government only, indirectly via Amman and then to Irbil.  There is no possibility that this claimant could be deported via Amman to Irbil because he is not a native of one of the three provinces and the Kurdish authorities will only accept returnees who are natives of those provinces.  Those who have to be returned via Baghdad require to be escorted, as Ms Honeyman explains.  However, escorts are not currently provided.  Her understanding, and the only evidence that I have, is that currently Foreign and Commonwealth advice is that FCO staff may not fly into Baghdad on scheduled aircraft.  That is for reasons of their safety.  The risks, as I understand it, to which they might be subjected are an attack on incoming or outgoing aircraft and the risk of harm, including kidnapping, within the airport compound at Baghdad.  Accordingly, the Home Office has decided that it cannot task the escorts who would escort returning deportees to Baghdad for reasons of their safety. 
9.	Although the date upon which this policy came into force has not been ascertained, it is apparent from the report of AR (Iraq) [2004] UKIAT00273 that it was in force at least as early as 3rd September 2003.  It remains in force.  There is no evidence of any kind as to when it might change. 
10.	On 7th November 2007, the claimant's solicitors wrote to the Secretary of State inviting her to revoke the deportation order on the ground that the claimant was entitled to humanitarian protection under paragraph 339C of the Immigration Rules.  That request was refused by a letter dated 26th November 2007 which pointed out, correctly, that pursuant to section 82(2)(k) and 92(2) of the Nationality, Immigration and Asylum Act 2002 an appeal against a refusal to revoke a deportation order could only be made out of the country.  Mr Jones for the claimant has drawn my attention to proceedings before the Asylum and Immigration Tribunal in which it is intended that fresh country guidance should be given on humanitarian protection in the case of Iraq.  Those proceedings are still not, as I understand it, fully underway and it is unlikely that they will result in a decision before January or February next year at the very earliest.  
11.	The claimant has throughout refused to return voluntarily to Iraq.  The evidence which I have as to his reasons for that refusal is principally contained in the witness statement of his solicitor, Mustafa Patwa, made on 13th July 2007, in which he reports the claimant's views as follows: 
"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."
12.	From that passage it is apparent that the claimant's refusal to return to Iraq is not, or at least not principally, motivated by a concern about the safety of his journey to Mosul but about what he fears may happen to him in Mosul.  He has expressed a willingness to return to the area of Iraq controlled by the Kurdish regional government (see paragraph 6 of the same witness statement) but, for the reasons which I have already indicated, that is not a wish that can be fulfilled.  It is therefore tantamount to a refusal. 
13.	The blunt facts are, therefore, that the claimant has been detained in administrative detention for two years and eight months.  He cannot complain about the first nine months of his detention because it was occupied by his appeal against the deportation order and elongated by his own failure to engage with the original order promptly, thereby delaying the hearing of his appeal.  So much is conceded by Mr Jones.  He has, however, been detained for 23 months without there being, even now, any immediate prospect that he can be removed, unless he voluntarily decides to depart.  I am satisfied, by reason of the length of time that he has sustained his refusal to depart voluntarily, that his will is settled.  He has maintained it even though there is undisputed evidence that he suffers from a depressive condition of some degree. 
14.	Accordingly, the facts of this case raise acutely the choice between two unacceptable alternatives: first, that the execution of a lawful deportation order is put at risk by releasing someone about whom there may be good grounds to believe that he will not keep in touch with the Home Office before he can be forcibly removed; secondly, that a man is detained administratively for an indefinite period in circumstances where there is not and never has been any immediate prospect that he will be removed to his home country. 
15.	The statutory background is contained in the provisions of the Immigration Act 1971.  Under section 5(1) the Secretary of State may make a deportation order against anyone liable to deportation, including a person in respect of whom the Secretary of State has deemed that his deportation is conducive to the public good.  Paragraph 2(3) of schedule 3 to the 1971 Act provides that:
"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. 
16.	Mr Patel, who appears for the Secretary of State, however properly concedes that it would not be a lawful exercise of that power to detain someone indefinitely simply to compel him to decide voluntarily to depart.  That concession mirrors that made by Mr Giffin QC in A v Secretary of State for the Home Department [2007] EWCA Civ 804 at paragraph 83 in which he accepted that if there was no risk of absconding or of further offences there would be no obvious reason for the Secretary of State to exercise the power of detention simply to procure a person's departure. 
17.	The law has been considered by the courts.  It is not seriously in doubt.  First, the Secretary of State is entitled to detain a person in respect of whom a deportation order is made pending his removal or departure; see Khadir v Secretary of State for the Home Department [2005] UKHL 39.  But that power is not free of limitation.  First, it must be exercised so as to further the object of removal or departure and, secondly, it must, in the light of all the circumstances and the length of detention, be reasonable to exercise or to continue to exercise it. 
18.	The point was simply put by Toulson LJ as part of the ratio of A at paragraphs 43 and 45: 
"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."
And:
"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". 
19.	On the facts of that case, which had some similarities to the facts of this case, but were not on all fours, Toulson LJ observed at paragraph 54:
"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. 
20.	What Toulson LJ did not address, because it was not necessary to address it on the facts, was whether or not a period of detention initially lawful could become unlawful by reason of it being unreasonably protracted.  On the facts of that case, the period of detention under review was either 18 or 15 months from December 2004 until April or July 2006.  I have not been referred to any case in which detention not justified by an appellate process has been held unlawful where it has endured as long as 23 months.  Indeed, periods of detention of significantly shorter length have been held to be unlawful: ten months in Re Mahmod (Wasfi Mahmod) [1995] Imm AR 311, and nearly 16 months in R (on the application of I) v Secretary of State for the Home Department [2003] IMLR 196.  In the former case, the detention had endured "while nothing but fruitless negotiations had been carried on" (paragraph 314).  In the latter case, the detention had endured in circumstances in which the Secretary of State could "establish no more than a hope of being able to remove him forcibly by the summer". 
21.	While I do not assert that in no circumstances could detention lasting as long as 23 months be justified, I am satisfied on the facts of this case that this claimant's detention has by now become unlawful.  I reach that conclusion for the following reasons: first, the length of the detention.  23 months on any view must be at or near to the top of the period during which detention can lawfully occur.  Secondly, although he has been convicted of a very serious offence, a street robbery, involving the use of significant violence to the victim, albeit violence which he maintained he had not personally committed, nevertheless this was not in those category of truly grave offences such as that committed by A, the repetition of which would put the public at very grave risk.  Thirdly, although the claimant is rootless in the United Kingdom, and there must be a significant risk that he will abscond, he does not quite present the picture of A, who on Calvert‑Smith J's findings was determined "by hook or by crook" to remain in the United Kingdom, and would have no hesitation in absconding to achieve that purpose.  Fourthly, and to my mind of great significance, there is simply no information put before me upon which I could conclude that the current suspension of flights into Baghdad will end in the near or even foreseeable future.  Unlike the case in A, I am not judging the lawfulness of a period of detention which has ended.  I am judging a period of detention which is still continuing and I am doing so in circumstances in which there is no indication, let alone any clear indication, of when it might end. 
22.	In reaching those conclusions, I have not overlooked the decision of Beatson J in MMH and SRH, also Iraqi cases, in which precisely the latter consideration fell to be considered.  He noted, and I readily accept, that but for that inhibition on escorted removals the arrangements are in place which would permit forcible removal of the claimant.  But the fact remains that, until that inhibition is removed, he cannot be forcibly removed and there is no indication whatever as to when the inhibition will be removed.  What may have been acceptable in the case of claimants who have been detained for the periods of detention of MMH and SRH, 13 months and eight months respectively, becomes unreasonable in the case of a man such as this claimant who has been detained for as long as 23 months.  Ultimately, the question as to whether, and if so when, detention in those circumstances becomes unreasonable and so unlawful is a matter of judgment on the facts of an individual case.  I have no doubt, for the reasons that I have given, that on the facts of this case this claimant's detention is now unlawful.  I so declare.  
23.	The relief which I propose, subject to submissions of counsel, is that he should be admitted to bail on stringent conditions, which would include a 12 hour curfew, tagging, daily reporting to an immigration office or police station, and residence at an address to be identified or agreed by the Secretary of State and that until those conditions are in place he should not be released. 
24.	MR JONES:  Sorry, my Lord, I am just taking some instructions about the terms of the order.  Could I just have a moment to speak to my learned friend? 
25.	MR JUSTICE MITTING:  Certainly. (Pause) 
26.	MR JONES:  My Lord, I do not think there is any problem ‑‑ we have no problem with the terms of the order the court proposes. 
27.	MR JUSTICE MITTING:  Yes. 
28.	MR JONES:  As I understand your Lordship's ruling, the detention is unlawful as of today's date, so in terms of the other relief the claimant sought, in terms of damages and so forth ‑‑ 
29.	MR JUSTICE MITTING:  I have not made any declaration about the past.  My decision is that his detention has, by now, become unlawful.  Consequently the relief that I have ordered should be granted.  I have not decided that his detention up to now has been unlawful. 
30.	MR JONES:  I am grateful for the indication, my Lord.  Then I think the rest is just matters for the parties to sort out in terms of ‑‑ 
31.	MR JUSTICE MITTING:  Yes, clearly you will need liberty to apply to carry the order into effect if there should be proof of any insuperable difficulty.  I am sitting in the Administrative Court this week and next so there should be no difficulty about your coming back if you should need to. 
32.	MR JONES:  I am grateful.  Then, my Lord, I think the only other order the claimants would seek would be the costs of this. 
33.	MR JUSTICE MITTING:  Yes.  You are, I take it, publicly funded? 
34.	MR JONES:  We are. 
35.	MR JUSTICE MITTING:  Mr Patel? 
36.	MR PATEL:  I cannot resist that application for costs so your Lordship should so order.  
37.	My Lord, in the light of the judgment and, my Lord, if I can say, the way in which your Lordship has carefully analysed it, I do seek permission to appeal on behalf of the Secretary of State and I do so on this ground: your Lordship knows that my submission was that the refusal to accept voluntary repatriation in the context of a deportation order and detention pending as a result of the deportation order is detention, removal or departure.  However, we say that, whilst 23 months clearly is obviously a long period of time, 18 months was the period in A that their Lordships thought was lawful and we say that there is an issue as to when the period becomes unlawful and when it does not.  So I ask for permission to appeal on that basis. 
38.	MR JUSTICE MITTING:  You are not suggesting, in asking for permission, that I should stay the order that I made? 
39.	MR PATEL:  My Lord, I put it this way: I am seeking permission on the principle ‑‑ 
40.	MR JUSTICE MITTING:  Yes. 
41.	MR PATEL:  ‑‑ rather than on the particular facts of this case.  Given your Lordship has indicated stringent bail conditions, I do not seek a stay of the order as such but I do seek permission to appeal on the principle. 
42.	MR JUSTICE MITTING:  Mr Jones, strictly you are not involved in this question, but is there anything you want to say? 
43.	MR JONES:  My Lord, only that I think your Lordship was careful to identify that there are factors which distinguish this case from A, albeit there are also factors ‑‑ there are comparisons between the two and your Lordship was also careful to identify that the decision was made on the particular facts of this case and it is in that your Lordship's judgment was entirely in accordance with the ruling of the court in A as to the proper approach to be taken to the evaluation of when detention becomes unlawful on the basis of being unreasonable.  So, with respect, my Lord, all my learned friend is really seeking is some further indications with precision as to when detention becomes unlawful in this case and frankly, my Lord, that cannot be given by a court because every case is going to turn on its own particular facts, subject to adherence to the approach advocated by the court in A. 
44.	MR JUSTICE MITTING:  Thank you.  
45.	Mr Patel, given the importance of the issue, not just for this claimant but also in other cases, even though I am not persuaded that you have a particularly high prospect of success, I will give you permission to appeal. 
46.	MR PATEL:  My Lord, I am grateful. 
47.	MR JUSTICE MITTING:  I hope, although I fear I may be wrong, that there are not too many cases in the pipeline where periods of detention of this length have occurred. 
48.	MR PATEL:  My Lord ‑‑ 
49.	MR JUSTICE MITTING:  I do not ask for a comment on that. 
50.	MR PATEL:  No.  Thank you, my Lord. 
51.	MR JUSTICE MITTING:  I order that the defendant pay the claimant's costs, which are to be the subject of a public funding assessment, and, as between the parties, to pay those costs, to be the subject of a detailed assessment if not agreed. 
52.	Would you like your book back? 
53.	MR PATEL:  My Lord, in fact it is the usher's book.  Thank you, my Lord. 
54.	MR JUSTICE MITTING:  Thank you both. 
55.	MR JONES:  Thank you, my Lord.