England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thomas, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1008 (Admin) (20 March 2009)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1008.html
Cite as: [2009] EWHC 1008 (Admin)

[New search] [Printable RTF version] [Help]

		Neutral Citation Number: [2009] EWHC 1008 (Admin)
		CO/2122/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2A 2LL

20 March 2009

B e f o r e :

MR JUSTICE PLENDER
____________________

Between:

	THE QUEEN ON THE APPLICATION OF OSWALD THOMAS	Claimant
	v
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)

____________________

Mr N Stanage (instructed by Paragon Law) appeared on behalf of the Claimant
Mr S Singh (instructed by Treasury Solicitors) appeared on behalf of the Defendant
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE PLENDER: The applicant in this case is a Jamaican national on behalf of whom it has been said that he came to the United Kingdom at the age of 9 and has remained in the United Kingdom ever since. It is common ground that his lifestyle is criminal.

The decision to make a deportation order in this case was made following his conviction for three offences: the first was a benefit fraud involving some £23,000 obtained fraudulently from the Department for Work and Pensions; the second was an offence of sexual assault on a female under 13; the third was the use of racial threats contrary to the Public Order Act 1936 (as amended). For those offences he was sentenced to a total of 27 months' imprisonment. The Secretary of State therefore had the power to make a deportation order under section 32(3) of the United Kingdom Borders Act 2007 if, and only if, the claimant was not immune from deportation under section 7 of the Immigration Act 1971. The essential point at issue in this case is whether the defendant is immune from deportation under that section.

The claimant has a long history of other offences, which are set out in the judgment of the sentencing judge for the fraud offences, which led to the making of a deportation order.

By letter dated 4 December 2008, the Secretary of State wrote to the claimant stating that she had in mind the making of a deportation order unless the defendant satisfied her to the contrary. The letter referred expressly to section 7 of the Immigration Act 1971, and invited the making of representations as to whether the claimant was immune from deportation. Having received no response by the 26 February 2007, the Secretary of State decided to make the order in this case. By letter dated 27 February 2009, there were presented to the Secretary of State a number of documents tending to show, and showing, according to the claimant's counsel, that the claimant had been ordinarily resident in the United Kingdom not just for five years preceding the Immigration Act 1971, but for some 40 years. The documents produced include, in particular, medical records going back some 40 years.

Counsel for the Secretary of State, Mr Singh, says in open court that the Secretary of State does not accept that these documents demonstrate that the claimant was ordinarily resident for all of the five-year period, but in any event, and more principally, Mr Singh says, the claimant has an alternative remedy. The alternative remedy is an appeal to the Asylum and Immigration Appeal Tribunal, specifically upon the question of whether this claimant is liable to deportation. Not only, says Mr Singh, is there such a remedy available, but it is a remedy that has actually been invoked by this claimant in the present case, and the appeal has been set down for the 29 April 2009.

Against that, Mr Stanage, for the claimant, says that on 29 April the Tribunal is to hear the appeal, and it may take three or four weeks for it to promulgate its decision. This court, he says, should not sit idly by while waiting for the Tribunal's determination. He says that a minimal exercise of discretion would be required by this court, and furthermore, in granting permission to appeal in this case, Keith J rejected, or must be taken to have rejected, the argument that there is an alternative remedy, an argument that Mr Stanage himself drew to the attention of the court very properly in accordance with his duty. He says the basis of a claim for bail, which may be considered by the Tribunal, is discretionary but liberty is an entitlement. He is of course quite right in drawing that antithesis. But the issue before the Asylum and Immigration Appeal Tribunal is not, properly speaking, whether this claimant should be released, the question is whether he is amenable to deportation.

The record of this claimant is far from enviable, but it is not a record which itself justifies his detention, whether under the Immigration Act or otherwise. A person convicted of criminal offences is liable to be imprisoned for the period specified by the court by way of sentence, lawfully imposed, and not otherwise. Detention under the Immigration Act, however, is lawful only in the case of a person who is liable for deportation. The issue before the Asylum and Immigration Appeal Tribunal will therefore address the basis upon which this claimant is detained.

I shall not end without drawing attention to some concern as to the duration of the detention in this case. One expresses the hope that the Asylum and Immigration Appeal Tribunal, notwithstanding the pressures on it, will take no longer than is necessary to reach its judgment in this case, where the liberty of the subject is at stake.

MR SINGH: My Lord, the normal order at the conclusion of a substantive judicial review hearing where the application for judicial review is dismissed is that the claimant should pay the defendant's costs. So, my Lord, I would ask the court to make that order. The claimant is legally aided, so the order could not be enforced without leave of the court in any event.

MR JUSTICE PLENDER: Mr Stanage, what do you have to say about that?

MR STANAGE: My Lord, no objection, and my client being publicly funded, might there be detailed assessment of the claimant's costs?

MR JUSTICE PLENDER: You may have your detailed assessment for costs, and there will be an order for costs in the defendant's favour, not to be enforced without leave of the court.