QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF WALUMBA LUMBA||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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(Official Shorthand Writers to the Court)
Rory Dunlop (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"We are also aware that you have a wife and child in the United Kingdom. In considering whether it would be right to deport you the effect that deportation is likely to have upon them, your family and the wider community has been taken into account, as well as whether any disruption to your family and private life is justified in light of your criminal convictions."
The conclusion was that, on balancing his rights to a family life and the legitimate aim to ensure the prevention of disorder or crime, his deportation would not be a breach of Article 8.
"As you are aware, on 17 May 2006 you were served with a notice of intention to make a deportation order. As the subject of deportation action you are liable to detention under Schedule 3 to the Immigration Act 1971 (as amended).
However, detention is only used where there is no reasonable alternative available and there is reason to believe that you would not comply with any restrictions attached to your release.
Having considered the particulars of your case, your detention is deemed to be justified under the powers contained in Schedule 3 of the Immigration Act 1971.
It has been decided that you should be detained because:
There is insufficient reliable information to decide whether to grant you temporary admission or release.
The decision to detain you has been reached on the basis of the following factors:
You have propensity to behave violently and on the commission of your last offence you failed to show any remorse. It is considered that maintaining your detention is in the interests of public protection.
Your removal is deemed likely to be effected within a reasonable time scale and therefore that you should be detained with a view to effecting your deportation.
In reaching this decision Articles 5 and 8 of the European Convention on Human Rights have been taken into account."
"24. I plea to the Secretary of State to accord me with the protection of the 1951 United Nations Convention relating to the test of refugees. I am an asylum seeker... I cannot return to the country from which I fled persecution... I will not be protected by the Congolese authorities should I be returned there, I fear that I would be killed, in the same manner in which my father was killed."
He then said that he had learnt his lesson and would not further offend.
"5. The Appellant has previously applied for asylum, which had been refused. It was no part of the Appellant's case that his removal involved the United Kingdom in a breach of its obligations under the 1951 Refugee Convention and there was no suggestion that his removal would expose him to a risk of unlawful killing or of inhuman or degrading treatment or punishment in the DRC."
"3. The Defendant's powers to detain those subject to deportation action are set out in Schedule 3 to the Immigration Act 1971. The Defendant's current policy with regard to the exercise of those powers was published in two White Papers — 'Fairer, Faster, Firmer — A Modern Approach to Immigration and Asylum' 1998 and 'Secure Borders, Safe Haven' 2002.
4. That policy is reflected in guidance issued to staff. That guidance is set out in Chapter 55 of the Operational Enforcement Manual (OEM) (previously Chapter 38). It explains that, whilst there is a presumption in favour of release, detention may be justified if there are strong grounds for believing that a person will not comply with any conditions of release (eg. reporting requirements)...
5. That guidance has recently been supplemented by an internal process communication to staff dated 25 March 2008. This communication sets out criteria (known as the 'Cullen criteria') which seek to identify those individuals who might be suitable for release even though they would otherwise be detained under existing policy. However, the Cullen criteria do not apply to individuals who have been convicted of violent, sexual or drug offences..."
Thus, what Ms Honeyman is saying is that the general policy is as set out in chapter 55 of the OEM, namely that there is a presumption in favour of release and detention may be justified if there are strong grounds for believing that a person would not comply with conditions of release.
"To comply with Article 5 and domestic case law, the following should be borne in mind:
A) The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with Article 5 and would be unlawful in domestic law;
B) The detention may only continue for a period that is reasonable in all the circumstances;
C) If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and
D) The detaining authority (be it the immigration officer or the Secretary of State), should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is)."
"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. Each case must be considered on its individual merits.
The following factors must be taken into account when considering the need for initial or continued detention."
For detention there are set out seven specific points:
"• 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? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)
• is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave, etc)
• what are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?
• what are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?"
Against detention there are set out three points:
"• is the subject under 18?;
• has the subject a history of torture?;
• has the subject a history of physical or mental ill health?"
"The decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken at senior case-worker level in CCT. Where an offender, who has been recommended for deportation by a Court or who has been sentenced to in excess of 12 months imprisonment, is serving a period of imprisonment which is due to be completed, the decision on whether he should be detained under Immigration Act powers (on completion of his custodial sentence) pending deportation must be made at senior case-worker level in CCT in advance of the case being transferred to CCT. It should be noted that there is no concept of dual detention in deportation cases..."
"2.1 Cases which should not be considered for ending detention
Anyone convicted of a[n offence] which appears in the list attached should not be considered for release under these instructions.
This list includes all violent offences, all sexual offences and all drug offences bar minor possession."
Then it said, paragraph 3:
"Where a case does not fall within the list... Case Owners should consider first whether or not removal is imminent... If... imminent then consideration for release... should stop.
If... not imminent, then... If the Case Owner feels that the subject has an above average risk of absconding... the case should go no further..."
"7. Although the power which is given to the Secretary of State in paragraph 2 [of the third schedule to the 1971 Act] 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, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It canno[t] 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 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. 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 for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
8. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
That is the approach which, since Hardial Singh, has been regarded as correct and applicable to all these cases. In fact, in Hardial Singh's case he was due to be released in July 1983; he had a right of appeal, which expired in March; he was served with a deportation order on 16th June 1983; and since 20th July 1983 he had been detained under the power contained in the Immigration Act. The case came before Woolf J on 13th December 1983. So he had by then been detained for a little under 5 months. The learned judge, at counsel for the Secretary of State's request, agreed to an adjournment for a period of 7 days on the basis that it was possible that there might be further information in relation to whether the Indian High Commission would be able to indicate that the removal would take place very shortly. History does not record what happened after that 7-day period. As far as I am aware, the matter did not come back to the court. I say that because, as it happens, I was counsel for the Secretary of State in that case.
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh... This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D... In my judgment, Mr Robb 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 the reasonable diligence and expedition to effect removal.
47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.
48. 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 paragraph 2(3) of schedule 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. Mr Robb submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature which has weighed heavily with Mummery LJ.
51. I cannot accept that the first of Mr Robb's reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. If Mr Robb were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation."
"14... the Secretary of State ought not for the time being to remove failed asylum-seekers to the DRC. So far as I can see the situation in relation to that is little different from that which relates to Zimbabwe to which no returns are being made until the AIT reaches a conclusion in a [country] guidance case...
15. Accordingly, I am prepared to make an order that in all these cases the return should not take place. Let me make it clear what the limitations on that are. First of all, this only relates to failed asylum-seekers. I gather from Ms Busch [who appeared for the Secretary of State in that case] that there are some who do not fall into that category who are straightforward, if I [may] put it that way, deportees for whatever reason... Secondly, what I have said in no way indicates that there will be in the end a bar on removal... Within a reasonable time, I would imagine by October, the decision will be known and the Secretary of State will be able to decide whether removals are indeed possible, and if they are, what category of persons should still be protected from any removal."
"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."
He then went on to indicate that an additional relevant factor was the likelihood of reoffending and the potential gravity of the consequences if he did reoffend.
"62. I intend no disrespect by not going into the refinements of Mr Giffin's argument but dealing with the matter on a broader basis. Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)."
Longmore LJ agreed with the judgment of Toulson LJ.
"71. It is to my mind a remarkable proposition that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the courts of this country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the court itself to determine whether such a reasonable period has been exceeded."
That has been the approach adopted in practice in the domestic cases to which we have been referred.
"In addition, this issue fell to be considered explicitly in the case of Youssef v. The Home Office  EWHC 1884, where Field J held that the court was the primary decision-maker as to the reasonableness of the length of detention..."
I do not need to cite that paragraph. It is in fact paragraph 62 of Field J's judgment.
"79. I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."
"Of course if [the Court of Appeal] does grant permission [that is in the BK] we are so close to what clearly is the limit the secretary of state for the home department should very seriously consider whether [she] intend[s] to maintain detention. I do recognise and I do accept that. Sufficiently lengthy [that is the detention] to call into question whether he should remain in custody..."
I went on:
"[Apparently] we are very much on the borderline on the authorities even taking the most favourable view of the Secretary of State['s approach]. I think on the authorities it cannot be better than borderline. My [provisional] view is that... any further period, more than a couple of weeks, would be unjustified. [The] results of any substantial delay is that detention will not be justified. That of course [is] my provisional view only."
Now that permission has been granted for the appeal, I am told that the appeal is due to be heard in November. So one can expect the decision by the end of next term, that being some 6 months on. The relevant period of detention runs from December 2006, that being when the appeal process came to the final conclusion. Thus he has already been in detention for some 18 months or so, and if detained, and on the assumption that he continues to refuse to return voluntarily, he will have been in detention for some 2 years by the time the Court of Appeal reaches its decision.
If it decides that returns can no longer properly be made, there will have to be a reconsideration by the Secretary of State. Then, whatever the decision now, it will be very doubtful whether any detention will be able to be maintained, notwithstanding that he could still return voluntarily, but that will depend upon the circumstances that arise at that time. I am not saying, and I must not be taken to be saying, that there is, assuming I permit custody to continue, a cut-off point at that time. It will merely and obviously be the more difficult then for the Secretary of State to maintain detention if the Court of Appeal decides that the AIT was wrong and that the position in relation to return to the DRC is such that those returned involuntarily are liable to possible persecution.
"4. My original statement in relation to the approach to the detention of foreign national prisoners reflected my understanding at that time. However, clarification is being urgently sought as to whether that understanding was correct... Once this has been clarified a further statement will be made should that prove necessary."
"In addition, I made a further commitment: I said that we would not release those foreign national prisoners who ought to be considered for deportation before such consideration had been completed and we would continue to detain them until that was done."
In response to the Home Affairs Committee on 12th December 2006, he said:
"... I regarded it as my duty to make sure that the public were protected from people who had committed offences and who ought to be considered for being removed from the country for the public protection. Therefore, until such time as that decision can be taken, I have decided that they ought to be detained."
"The Home Secretary's statement that foreign national prisoners would not be released before consideration for deportation had been completed was understood within the UK Border Agency to refer to removal or abandonment of deportation action, and not merely to the service of a notice of a decision to deport. The statement itself provided a public affirmation that public protection was firmly at the centre of detention policy in foreign national prisoner cases and reflected a fundamental shift in policy towards such cases that had occurred following the events of April 2006."
He then went on in paragraph 6:
"Instructions were provided to CCV case workers by way of a revised chapter 16 of the enforcement case worker manual approved by the then director on 4th August 2006. This addressed detention in the following way:
'Case workers should look carefully at the history and details of the case to establish if the applicant would fall under the normal detention criteria. If evidence of the criteria for detention are met, there is a need to balance the circumstances of the case as a whole against the need to maintain an effective immigration control. The more criteria are met, the more likely detention becomes. However, detention must be considered on a case-by-case basis.'"
Then the various criteria are set out: the risk of absconding, failure to comply with conditions, showing a determination to breach the law, no close ties with the UK and no settled address.
"The Home Secretary has been very clear in his statements: there will be a presumption of detention in all foreign national prisoner cases until removal. We need to ensure that all staff are applying this."
There was apparently an interim instruction issued to case workers on 20th February, followed by a detention process instruction on 13th September 2007, which contained the criteria to which I have already referred, together with reference to extracts from the Home Secretary's statements. Finally, there was the issue of what has been described as the "Cullen guidance" in November 2007 and March 2008 respectively.
"Thus public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release will not apply. This is because in such cases there is a clear imperative to protect the public from the risk of harm which arises through a risk of reoffending if the individual is released, as well as an increased risk of absconding evidenced by a past history of lack of respect for the law. The public protection imperative has the effect that the starting point is that there is a presumption in favour of detention. However, this presumption will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal.
In assessing what is a reasonable period in any individual case, the case worker must look at all relevant factors to that case, including the particular risks of reoffending and absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. Case workers are given guidance in Cullen 2 as to whether an offence is more or less serious."
"Those convicted of serious offences are not considered for release under these broad criteria because by definition these serious offences are outside the broad categories of lower risk cases which the criteria encapsulate. As already set out above in relation to Cullen 1, this does not mean that detention is automatic or indefinite in these cases, rather that, given the relatively higher risk of harm or absconding that is likely to be present in such cases, detention can generally be justified for a longer period on public protection grounds. The approach outlined above, giving substantial weight to public protection and the heightened risk of absconding, must be followed in the more serious cases."
"1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law..."
The relevant one here is:
"f the lawful arrest or detention of a person... against whom action is being taken with a view to deportation or extradition."