QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| RASHID HUSSEIN
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
James Eadie QC & Parishil Patel (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 29th September 2009
Crown Copyright ©
Mr Justice Nicol:
UK Borders Act 2007
"32 Automatic Deportation
(1) In this section 'foreign criminal' means a person
(a) who is not a British Citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that
(a) the offence is specified by order of the Secretary of State under s. 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purposes of s.3(5)(a) of the Immigration Act 1971 (c77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to s.33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless
(a) he thinks that an exception under s.33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) s.34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
(1) Sections 32(4) and (5)
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of a foreign criminal in pursuance of the deportation order would breach
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of decision.
(4) Exception 3 is where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the Community treaties.
(5) Exception 4 ... [concerns extradition]
(6) Exception 5 ... [concerns people subject to various orders under the Mental Health Act 1983 or their equivalents in Scotland or Northern Ireland]
(6A) Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005).
(7) The application of an exception -
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but s.32(4) applies despite the application of Exception 1 or 4.
(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State
(a) while the Secretary of State considers whether s.32(5) applies, and
(b) where the Secretary of State thinks that s.32(5) applies, pending the making of the deportation order.
(2) Where a deportation order is made in accordance with s.32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.
(3) A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).
(4) Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).
(5) Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1)."
(1) Section 17 comes into force on the day on which this Act is passed.
(2) The other preceding provisions of this Act shall come into force in accordance with provision made by the Secretary of State by order.
(3) An order
(a) may make provision generally or only for specified purposes,
(b) may make different provision for different purposes, and
(c) may include incidental, consequential or transitional provision.
(4) In particular, transitional provision
(d) in the case of an order commencing section 32
(i) may provide for the section to apply to persons convicted before the passing of this Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement;
(ii) may modify the application of the section in relation to those persons so as to disapply, or apply only to a specified extent, Condition 2.
(5) An order shall be made by statutory instrument.
The 2007 Act received the Royal Assent on 30th October 2007 and so that is the day on which it was passed.
The following provisions of the UK Borders Act 2007 shall come into force on 1st August 2008
(a) the provisions set out in the Schedule to this Order [i.e. sections 32 38 inclusive] in respect of a person to whom Condition 1 (within the meaning of s.32 of that Act) applies; and
(b) Section 39 (consequential amendments)
3. Transitional provisions
(1) Subject to paragraph (2), section 32 applies to the extent to which it is commenced in article 2(a), to persons convicted before the passing of that Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement.
(2) Paragraph (1) does not apply to a person who has been served with a notice of a decision to make a deportation order under s.5 of the Immigration Act 1971 before 1st August 2008."
Is a person amenable to automatic deportation if he was convicted after the passing of the Act (30th October 2007) but before s.32 commenced (1st August 2008)?
"17. We consider that both section 59(4)(d)(i) and the Commencement Order sought to restrict the retroactive effect of the new provisions to foreign criminals who had committed the more serious offences. There is no doubt that this is the practical effect of these provisions. Parliament and the Secretary of State would be aware that in the criminal justice system there are several opportunities for the reduction of sentences. These measures include taking account of time an accused person has spent in custody....In addition, fixed term prisoners sentenced to 12 months or more must also be released upon serving half of their sentence....The period actually served in custody can further be reduced if a prisoner is released on licence. In general, this means that only those who had been sentenced to a considerably longer term than the minimum 12 months envisaged in section 32 would still have been in custody some 9 months later on 1 August 2008.
18. We have found all the transitional provisions extending automatic deportation retrospectively to be unambiguous and to be based on rational criteria. If there are anomalies insofar as some serious criminals might be left out of the scheme on account of the window period between the passing of the Act and 1 August 2008 these cannot affect the plain language of the provisions. Changes in the law are bound to produce some anomalies, and, as Ms Cronin said to us, in transitional periods 'there are always winners and there are losers.' We agree. We note in any event that the Secretary of State retains the power to deport individuals by reference to section 3(5)(a) of the 1971 Act."
The Secretary of State asked the Tribunal to reconsider this decision but a Senior Immigration Judge refused saying that it was difficult to see how the Tribunal could have come to any other conclusion.
a. Section 59(4)(d)(i) speaks of those who have been convicted before the passing of the Act. That provision says nothing expressly as to when such persons were sentenced. Section 32(2), as I have shown, says that "Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months." It would be truly absurd if the transitional provision was intended to extend only to those who were convicted before 30th October 2007 but who were not sentenced until after commencement. In their case, at least, s.32(2) must be read as "the person is or was sentenced to a period of imprisonment of at least 12 months."
b. Section 59(4)(d)(ii) says that the Secretary of State "may modify the application of the section in relation to those persons so as to disapply, or apply only to a specified extent, Condition 2." As it happens, the Secretary of State has chosen not to bring Condition 2 into effect for anyone, not merely 'those persons' (i.e. those convicted before 30th October 2007) - see Article 2 of the Commencement Order. However, since s.59(4) is couched in permissive terms, Parliament contemplated that the Secretary of State might not disapply Condition 2 for those who were convicted prior to the passing of the Act. Condition 2 is that the offence of which the person was convicted was one specified by the Secretary of State and - see s.32(3)(b) - "the person is sentenced to a period of imprisonment." Here, too, it would be absurd to lay stress on the use of the present tense. Again, Parliament cannot have intended that those convicted of a specified offence prior to 30th October 2007 would only be subject to automatic deportation if their sentencing happened to be postponed until after commencement. Here, too, Parliament must have meant s.32(3)(b) to be read as "is or was sentenced to a period of imprisonment."
"It is important to grasp the true nature of objectionable retrospectivity, which is that the legal effect of an act or omission is retroactively altered by a later change in the law. However the mere fact that a change is operated with regard to past events does not mean that it is objectionably retrospective. Changes relating to the past are objectionable only if they alter the legal nature of a past act or omission in itself. A change in the law is not objectionable merely because it takes note that a past event has happened and bases new legal consequences upon it."
"There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation."
"Given the frequency with which s.212(c) relief [the Attorney-General's discretionary power] was granted in the years leading up to [the new legislation], preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial."
It is notable that the effect of the Court's ruling preserved the Attorney-General's discretion only for those who had entered into plea agreements see p.326. I infer that the new law would have applied to those who contested their trials even if their convictions took place before the new law came into effect.
Plea bargaining of this type is not a feature of the English criminal system. Certainly, there is no evidence in the present case that the Claimant pleaded guilty to the charges that he did in June 2008 because he thought that deportation would only be discretionary or that "foreign criminals" in his position generally did so. Besides, the American statute did not have the positive indication that some retroactive effect was intended that we find in s.59(4) of the 2007 Act. I did not find, therefore, that the St Cyr case assisted me.
Is the power of detention in s.36(1)(a) of the 2007 Act incompatible with Article 5 of the ECHR?
"Article 5 right to liberty and security
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.
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
"ou contre laquelle une procedure d'expulsion ou d'extradition est en cours."
In the present case, he submits, there is no 'procedure ... en cours'. The Secretary of State is merely investigating whether to launch such a procedure. The procedure could only be said to have started when the Secretary of State decided that s.32(5) did apply to the Claimant.
"199. As to Article 5(1)(f), the Commission notes that under the legislation only the Secretary of State has power to make an exclusion order. No application has been made to him by the police for such an order and the applicants were detained pending their examination and not pending consideration of the question whether exclusion orders should be made against them. Nor were they detained pending removal. Accordingly, even if any of the various forms of 'exclusion' could be considered as equivalent to 'deportation', there was, in the Commission's opinion, no sufficiently firm intention to operate the relevant powers against the applicants for it to be said that the action taken against the applicants was taken with a view to their deportation. Furthermore, even though one purpose of examination under the order is to establish whether the person examined is already subject to an exclusion order, it has not been suggested that in the present case the applicants' arrest and detention was based on any belief that they were subject to exclusion orders. It is not therefore shown that its purpose was to prevent them making an 'unauthorised entry'.
200. In short, the Commission considers that the applicants were detained for a form of security check or screening process. As the applicants have put it, the measures were one step back from criminal or deportation proceedings. The authorities' intentions had not, in the Commission's view, developed sufficiently to bring their detention within the scope of Article 5(1)(c) or (f)."
So, too, Mr Husain argues, the Claimant's detention is 'one step back' from his deportation.
"It would be unduly narrow to interpret Article 5(1)(f) as confined to cases where the person is detained solely to enable the deportation order to be implemented. The words of the provision are broad enough to cover the case where the person is originally detained with a view to deportation, but challenges that decision or claims asylum, and continues to be detained pending determination of that challenge or claim. The first applicant was detained with a view to deportation in August 1990. The deportation order was made in July 1991. The applicant continues to be detained for the purpose of giving effect to that order. The fact that implementation of the decision to deport was suspended while the Secretary of State considered the asylum request and reconsidered the request after the judicial review proceedings does not affect the purpose or lawfulness of the detention."
"The Secretary of State has noted your conviction on 20 June 2008 at Harrow Crown Court for theft and assault occasioning actual bodily harm and takes a very serious view of your crime. In the light of your conviction, you are liable to deportation under the Immigration Act 1971. You may be subject to automatic deportation in accordance with s.32(5) of the UK Borders Act 2007 unless you fall within one of the following exceptions ."
It is clear in my judgment, that this manifested a sufficiently firm intention to invoke the deportation process and made the Claimant a person against whom action was being taken with a view to his deportation. The fact that there was (or rather might be) an unresolved asylum claim does not alter the position, any more than it did in Chahal.
"As you are aware, the Secretary of State thinks that s.32(5) of the UK Borders Act 2007 (automatic deportation) applies to your case. Consequently you are liable to detention under s.36(1) of the said Act."
This was wrong. As the Secretary of State subsequently made clear, he had not, as of 17th February 2009, concluded that s.32(5) did apply to the Claimant's case. He had first to give the Claimant the opportunity to make submissions as to why one or more of the exceptions in s.33 applied. However, any error in that regard makes no difference to my conclusion that action with a view to deportation had begun.
For the future, though, it will be important that the letter given to those facing automatic deportation is in harmony with the information that is communicated orally via the Governor. It is also appropriate that the information should be reasonably precise. The phrase "you are liable to detention under s.36(1) of the said Act" is ambiguous as to whether the power in question is that under s.36(1)(a) (which was in fact the power that the Secretary of State relied upon in this case) or s.36(1)(b) (which would only be applicable once the Secretary of State had decided that s.32(5) did apply). This is not just pedantry. A person detained is entitled to know under what power he is being held. As in the present context, the preconditions for different powers may, and usually will, differ. Any challenge to the legality of detention will depend critically on whether the preconditions are satisfied and the detainee therefore needs to know at what the target he needs to aim. Further, if the Secretary of State had indeed decided that s.32(5) applied to the Claimant's case, the Claimant would have had a right to appeal to the AIT see Nationality Immigration and Asylum Act 2002 s. 82(3A) added by 2007 Act s.35(3).
Has the detention power under s.36(1)(a) been unlawfully exercised in the Claimant's case?
"(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 reasonable diligence and expedition to effect removal."
(i) The Secretary of State must intend to deport the person unless one of the exceptions in s.33 applies and can only use this power to detain for the purpose of examining whether they do.
The Secretary of State must have this conditional intention because otherwise it would not be possible for him to say that detention was pursuant to action with a view to deportation. It is clear that the s.36(1)(a) power may be used by the Secretary of State while the issue of whether one or more of the exceptions in s.33 is applicable. There was some debate at the hearing as to whether this power could also be used while the Secretary of State examined whether any of the other conditions on which the automatic deportation depended were fulfilled. Could he, for instance, rely on this power if the detainee claimed that he was in truth a British Citizen (and so not a 'foreign' criminal)? Mr Eadie was inclined to argue that he could. The consequence would be that even if the detainee was to persuade the Secretary of State (or a court) that he was indeed British, his detention in the meantime could have been lawful. I agree with Mr Husain that that would be a dramatic extension of the law. It may have been achieved by the 2007 Act, but this issue does not arise for decision on the facts of the present case. It would be better in my view for it to be answered in a case where it does.
(ii) The detainee may only be detained for a period that is reasonable in all the circumstances.
No change is needed to this statement of principle.
(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.
No change is necessary to the formulation here, but this principle will be infringed if detention continues even though it is apparent that, either resolution of the question of whether any of the exceptions in s.33 is applicable, or any subsequent deportation, or both together, will take more than a reasonable time.
(iv) The Secretary of State should act with reasonable diligence and expedition to determine whether any of the exceptions in s.33 is applicable.
An analogous limitation to Dyson LJ's fourth principle is clearly to be read into the s.36(1)(a) power, but some adaptation is necessary to reflect the exercise on which the Secretary of State is engaged. Of course, if none of the exceptions in s.33 apply and the automatic deportation obligation in s.32(5) arises and detention is continued under s.36(1)(b), that power will be subject to the implied limitations as formulated by Dyson LJ. The Secretary of State will then have to act with reasonable diligence and expedition to effect deportation. What is reasonable will no doubt take account of the totality of the period that the person concerned has spent in detention after the conclusion of his criminal sentence pursuant to immigration powers.
a. His detention has continued for too long. At most, he submits, s.36(1)(a) can be used to provide a short bridging period between the end of the custodial sentence and the decision that s.32(5) applies so that he is subject to automatic deportation.
b. There is no prospect of him being deported within a reasonable time. He was only interviewed in relation to his asylum claim on 4th September 2009. In addition, the Claimant has no travel document and there is no indication of the date by which the Secretary of State expects to be able to obtain one.
c. The Secretary of State has not acted with reasonable diligence. He ought to have begun the process of deciding whether any of the exceptions in s.33 applied to the Claimant (and, in particular, whether he had any well-founded asylum or human rights claim) well before the custodial term of the Claimant's sentence came to an end. Instead he took no action until the day before. Furthermore, the Secretary of State took no action once the 20 day deadline for the Claimant to make submissions expired.
I agree that these matters are arguable and give permission for them to be advanced in this application. I will deal with their merits in turn. First, though, it is necessary to summarise the events which took place from the commencement of the s.36(1)(a) detention.
"This is because the very context of being in detention acts as an ongoing stressor and also the context of a prison does not provide the appropriate environment for the development of the ongoing secure and trusting relationship that are an essential part of psychiatric care. Therefore, it would be important from a psychiatric point of view, that he be transferred, to the care of an appropriate psychiatric team in the community."
This report was made available to the Secretary of State only a few days before the hearing. He had not had the opportunity to consider it or (if this was thought right) to have the Claimant examined by an expert that he had instructed. Mr Husain argued that I could nevertheless take account of the report as part of the assessment which I am required to conduct of the reasonableness of the length of the Claimant's detention. I have done so, but it does not cause me to alter my view. Dr Bell is (very understandably) looking at the matter exclusively from a medical point of view. When the Secretary of State comes to consider the report, he will have to weigh those considerations along with the other public interests that are at stake. There can come a point where continuing to detain a person despite his medical condition may violate Article 3 of the European Convention, but Mr Husain did not suggest that Dr Bell's report would lead to such a conclusion in this case. That aside, for the purposes of my decision, I do not find that the medical condition of the Claimant is such that it means the period of detention has exceeded what is reasonable.
A person who is in detention pending removal under paragraph 16 of Schedule 2 of the 1971 Act may be detained in such a place as the Secretary of State may direct see Schedule 2 paragraph 18. The Secretary of State has the same power in relation to a person detained under Schedule 3 of the 1971 Act pending deportation see paragraph 2(4). He also has this power in relation to those detained under s.36 of the 2007 Act see s.36(4). The Immigration (Places of Detention) Direction 2009 identifies a 'hospital' as one of the places where a person subject to these powers may be detained. It would, in theory at least, be possible for him to exercise this power so as to transfer the Claimant to a secure hospital which, if not ideal, might be considered to be a relatively more preferable therapeutic environment.
I observe that Exception 5 in S.33(6) of the 2007 Act refers to foreign criminals who are held under various specified parts of mental health legislation. For England and Wales, these are hospital orders or guardianship orders under s.37 of the Mental Health Act 1983, a hospital direction under s.45A and a transfer direction under s.47. The first is a sentence imposed on someone who has been convicted of an offence. The second is a power that can be used prior to sentence. The third is a power available to the Secretary of State in relation to a person serving a sentence of imprisonment. None of them would therefore appear to be capable of applying to the Claimant at the present time. I do also observe, though, that when Exception 5 does apply, not only is there no automatic deportation, but the foreign criminal's deportation is not then deemed to be conducive to the public good see s.33(7).
Summary and conclusion
a. One of the conditions for automatic deportation under the UK Borders Act 2007 is that the person concerned is convicted of an offence. On the proper interpretation of the Act, that condition is fulfilled if a person is or has been convicted of an offence. This case is not concerned with convictions which took place before the Act was passed on 30th October 2007. It is clear that such a conviction will suffice (although there is then the added qualification that the person concerned must have been in custody when this part of the Act came into force on 1st August 2008). This case is concerned with a conviction which took place between the passing of the Act and it coming into force. I hold that such a conviction is also sufficient.
b. The Claimant is given permission to argue his other two grounds, however neither of these succeeds on the merits.
c. The power to detain while the Secretary of State considers whether any of the exceptions in s.33 of the 2007 Act are applicable in the case of a foreign criminal is not incompatible with Article 5(1) of the European Convention on Human Rights.
d. The exercise of that power of detention in the Claimant's case was not unlawful.