England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/10/2009

Mr Justice Nicol:

1. The Claimant is from Somalia. He came to the UK at the age of 9 in 1993. In 2001 he was granted indefinite leave to remain in this country. On 20^th June 2008 he pleaded guilty to charges of theft, having an offensive weapon, assault occasioning actual bodily harm and common assault. He was committed to Harrow Crown Court for sentence. On 28^th August 2008 he was sentenced to 12 months imprisonment on these charges. In addition four months of an earlier suspended sentence was activated. In total, he was therefore sentenced to 16 months imprisonment. So far as this sentence was concerned, he would have been entitled to be released on licence at the half way stage. Bearing in mind the period that he had spent in custody on remand, this would have led to his release on 18^th February 2009. However, he was not then released. He has been held since under the authority of the Secretary of State for the Home Department who relies on the UK Borders Act 2007.
2. There has for a very long time been a power to deport non-British Citizens whose presence in the UK the Secretary of State considers not to be conducive to the public good – see Immigration Act 1971 s.3(5)(a). The Secretary of State could reach that view because, for instance, of a conviction for a criminal offence and he could come to that conclusion whether or not the criminal court had recommended deportation under s.3(6) of the 1971 Act. However, under the 1971 Act the Secretary of State has a discretion to deport. That is clear from s.5(1) of the 1971 Act.
3. The 2007 Act introduced the idea of 'automatic deportation'. It will be necessary in due course to refer to the precise terms of the legislation, but in broad terms, the Secretary of State is now under an obligation to make a deportation order in respect of a 'foreign criminal' - that is a non-British citizen who is convicted in the UK of an offence and sentenced to not less than 12 months imprisonment – see 2007 Act s.32. There are exceptions to this duty, notably for the purposes of the present case, if deportation would be contrary to the Refugee Convention or the European Convention on Human Rights. The Act then gives the Secretary of State a power to detain a person who has served a period of imprisonment 'while the Secretary of State considers whether s.32(5) [the obligation to make an automatic deportation order] applies' – s.36(1)(a). It is this power which the Secretary of State has exercised in the present case and the basis on which he justifies the Claimant's continuing detention since 18^th February 2009.
4. The relevant provisions of the 2007 Act were brought into force by the UK Borders Act 2007 (Commencement No 3 and Transitional Provisions) Order 2008 SI 2008 No 1818 (C77) on 1^st August 2008. The Claimant argues that the provisions do not apply to him because his conviction took place in June 2008. Correspondingly, he submits, the Secretary of State had no power to deploy the detention provisions in his case. Cranston J. gave the Claimant permission to argue this ground of judicial review.
5. By amendments to the Claim Form, the Claimant seeks to advance two further grounds in the event that this first one should be unsuccessful. The Claimant did not have permission for these additional grounds, but it was agreed that the present hearing should combine the question of whether permission should be given and argument as to their substantive merit.
6. Ground 2 alleges that the power of detention invoked by the Secretary of State is incompatible with Article 5 of the European Convention on Human Rights. Article 5(1)(f) permits a person to be detained "against whom action is being taken with a view to deportation." Here, it is said, the Secretary of State is still at the preliminary stage of investigating whether the Claimant is a person who is liable to automatic deportation. He is not, it is said, therefore a person against whom action is being taken with a view to deportation. No other paragraph of Article 5 could justify detention in the Claimant's case and detention is not compatible with the Convention unless it is for one of the enumerated purposes. If that contention is right, I am asked to make a declaration of incompatibility under s.4 of the Human Rights Act 1998.
7. Ground 3 relies on the limitations which are implicit in powers of detention for purposes such as these. At common law such limitations were recognised in Hardial Singh [1984] 1 WLR 704. They are also implicit in Convention law. On the Claimant's behalf, it is argued that the traditional formulation of the limitations requires some modification to take account of the nature of the new power of detention in s.36(1)(a), but whether that is right or wrong, the Claimant argues that his detention infringes these limitations and is for that independent reason unlawful.

UK Borders Act 2007

8. Sections 32 and 33 read as follows:

"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.

33 Exceptions

(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 16^th 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.

9. Section 34 allows the Secretary of State a discretion as to when to make a deportation order required by s.32(5), but precludes him from doing so as long as an in-time appeal against conviction or sentence is being or could be made. Such a deportation order can be revoked for the purpose of some other measure being taken under the Immigration Acts or Rules and holding open the possibility that the Secretary of State may in the future decide that automatic deportation is required.
10. Section 35 provides for a right of appeal against a decision of the Secretary of State that s.32(5) applies. The appeal can only be brought prior to deportation if it is made on the grounds that removal would be contrary to the Refugee and/or Human Rights Conventions and, even then, not if the Secretary of State certifies those claims as clearly unfounded. A Community law claim can also be appealed before removal.
11. Section 36 is central to this application. It says:

"36 Detention

(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)."

12. Section 59 is also important in relation to the application. It says:

"59 Commencement

(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 30^th October 2007 and so that is the day on which it was passed.

13. The UK Borders Act 2007 (Commencement No 3 and Transitional Provisions) Order 2008 SI 2008 No 1818 was made on 8^th July 2008 pursuant to s.59(2) – (4) of the 2007 Act. Articles 2 and 3 said:

"2 Commencement

The following provisions of the UK Borders Act 2007 shall come into force on 1^st 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 1^st August 2008."

Is a person amenable to automatic deportation if he was convicted after the passing of the Act (30^th October 2007) but before s.32 commenced (1^st August 2008)?

14. It is plain that a person who was convicted after 1^st August 2008, who otherwise fulfils the criterion for being a 'foreign criminal' and who is not excluded by s.33 will be subject to the automatic deportation provision in s.32(5). That is a straightforward application of Article 2 of the Commencement Order. A person who was convicted before 30^th October 2007, and who likewise is a foreign criminal and not excluded by s.33 will also be subject to automatic deportation if the additional qualification is satisfied that he was still in custody on 1^st August 2008. That is a straightforward application of Article 3 of the Commencement Order. The area of debate concerns those who (like the Claimant) were convicted between 30^th October 2007 and 1^st August 2008. The Claimant submits that they are not liable to automatic deportation; the Secretary of State says that they are (assuming always that they are foreign criminals and not excluded by s.33).
15. Mr Husain for the Claimant emphasises that the relevant provisions of the 2007 Act repeatedly use the present tense. Thus a "foreign criminal" is defined in s.32(1)(b) as a person who "is convicted in the United Kingdom of an offence." By s.32(2) Condition 1 is that the person "is sentenced to a period of imprisonment of at least 12 months." Conviction happens on a discrete date. So, too, does sentencing. Since s.32 only came into force with the Commencement Order, it was of no effect at any earlier date. Accordingly, argues Mr Husain, section 32 is speaking of an act of conviction and an act of sentencing which take place on or after 1^st August 2008. Had Parliament wished to embrace the cases of people who had been convicted on some earlier date it would have needed to use the past tense so that s.32(1)(b) would have read "In this section 'foreign criminal' means a person ...who has been convicted..." or possibly "In this section 'foreign criminal means a person who is or was convicted..."
16. Mr Husain observes that the use of the present tense is a recurrent feature of this part of the Act. Section 32(3) defines Condition 2. When brought into effect, this will allow the Secretary of State to specify offences which will or may trigger automatic deportation even though the sentence imposed was less than 12 months. However, by s.32(3)(b), it is still necessary that "the person is sentenced to a period of imprisonment." Here, too, he submits, the act of sentencing must therefore take place on or after the section's commencement. Similarly, s.38, the interpretation section enlarges on what is meant by the expression "is sentenced to a period of imprisonment of at least 12 months" for the purposes of Condition 1. Each of the four sub-paragraphs uses the present tense – "is sentenced"' or "receives a suspended sentence."
17. He also submits that the starting presumption is that legislation is not intended to have retrospective effect in a manner which would be unfair unless a contrary intention appears - see Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, at 724. Here, Parliament has given express consideration to the degree of retrospective effect the automatic deportation provisions can have in s.59(4). It is common ground that the Claimant's case does not come within that subsection because he was convicted after the Act was passed. Since the new provisions also extend powers of detention, the Court should strictly construe them.
18. He confronts the Secretary of State's argument that the Claimant's interpretation leads to an absurdity. The Secretary of State submits that there can be no rational reason for Parliament to have brought within automatic deportation those who were convicted before 30^th October 2007 (always assuming that they are still in custody on 1^st August 2008) and those convicted after 1^st August 2008, but not those convicted between 1^st November 2007 and 31^st July 2008. Mr Husain adopts the response of the Asylum and Immigration Tribunal which faced the very same argument in Case DA/00079/2009 on 8^th May 2009^[1]. It said:

"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.

19. Despite the skill with which Mr Husain advanced these arguments, I have not been persuaded by them.
20. The statute does use the present tense in the sections to which Mr Husain drew attention, but in my judgment this will not bear the significance which he attributes to it. Section 59(4)(d) uses the past tense - 'persons convicted before the passing of this Act.' I infer from this that the drafter contemplated that s.32 embraced those who had been convicted at the time of the passing of the Act. Section 59(4)(d) expressly allowed the Secretary of State to make a transitional provision in their case so as to confine the application of s.32 to those who were also in custody on the date of commencement, but section 59 is dealing with the mechanics of commencement. It empowered (but did not oblige) the Secretary of State to make certain transitional provisions. It did not itself set the parameters of automatic deportation. That was done by s.32. Thus section 32, read in the light of s.59(4)(d), must have been intended to cover those who had in the past been convicted as well as those who were convicted after commencement.
21. Two other features of s.59 further diminish the significance of the use of the present tense in s.32.

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 30^th 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 30^th 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 30^th 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."

22. Mr Eadie QC, on behalf of the Secretary of State, forcefully submitted that the purpose of s.32 of the 2007 Act was to subject all foreign criminals to automatic deportation unless they came within one of the exclusions in s.33. There would be obvious practical difficulties (not to mention unfairness) if that were carried through to people who had been convicted very long in the past, but Parliament had catered for those objections by allowing the Secretary of State to specify in a commencement order that those convicted prior to the Royal Assent would only be caught if they were still in custody on commencement. There was, therefore, a good reason why the Secretary of State might want to confine the Act's operation in this way. But, Mr Eadie argued, there was no good reason for excluding from the Act's operation those whose convictions came after the passing of the Act. All commencement orders create distinctions which are in a sense arbitrary. If legislation is brought into force on a particular day, it will necessarily be the case that facts or events that are present on that day may be treated differently than if they had occurred on the day before. But, he submits, what is peculiar about the Claimant's construction is that it identifies for favourable treatment those who are sandwiched between two classes of persons who are caught by automatic deportation. It is irrational to suppose that this was Parliament's intention.
23. Nor, he submitted, had the Tribunal succeeded in providing an explanation for such an odd outcome. It is right that those convicted before 30^th October 2007 will only be caught by Article 3 of the Commencement Order if they were still in custody on 1^st August 2008. Because of the provisions concerning release of prisoners on licence at the half way point in their sentences, this will mean in most cases that only those who received a sentence of at least18 months imprisonment before 30^th October 2007 will be affected. But this does not explain why Parliament should have wished to bring that group of foreign criminals into the scope of automatic deportation, yet not also include in the same regime those who were sentenced to like terms after 30^th October 2007. Indeed, on the Claimant's analysis, they would still not be subject to the new regime even if they were sentenced to much longer terms than 18 months imprisonment. Thus, this analysis did not (as the Tribunal suggested) distinguish those who had been convicted of the more serious offences prior to commencement and apply the automatic deportation provisions only to them.
24. There is a further objection to the Tribunal's reasoning. A sentence of 18 months imprisonment is the approximate dividing line for those convicted before the passing of the Act because 9 months elapsed between the passing of the Act and its commencement. Yet when Parliament was considering the Bill it could not have known how long that period would be. So far as the parties have been able to discover, nothing was said to Parliament as the bill was going through about the length of interval which the Secretary of State intended to allow before the Act was brought into effect. Parliament could not have known, therefore, that the pre-enactment cases would only be caught where the defendant had been sentenced to a significantly longer term than the 12 months referred to in s.32. The process of determining the proper meaning of the legislation cannot therefore be assisted by the subsequent choice of a commencement date.
25. The presumption against retroactivity does not provide sufficient support for Mr Husain's argument. In the first place, the Secretary of State seeks to rely on the powers in the 2007 Act only after the relevant provisions have come into force. Thus it was only in 2009 that he detained the Claimant pursuant to s.36 of the Act. Automatic deportation, if it occurs, will likewise only take place after commencement. As is said in Bennion on Statutory Interpretation (5^th edition 2008) at p. 317:

"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."

26. Mr Husain relied on the decision of the Supreme Court of the United States in Immigration and Naturalization Service v St Cyr 533 US 289 (2001). In that case the Court had to consider the effect of a federal statute which removed the discretion of the Attorney-General to allow an alien to remain in the USA notwithstanding his conviction for certain offences. The Court had to consider whether that change applied to a person who had pleaded guilty in advance of the new statute coming into force. By a majority the Court ruled that it did not. Mr Eadie argued that the case did not assist the Claimant because it was central to the decision that St Cyr had entered into a plea agreement in the expectation that the resulting conviction would not expose him to deportation. That is not quite correct. Prior to the change in the law, St Cyr would have been amenable to deportation, but the Attorney-General had a power to allow him to remain. Deportation, in effect, was discretionary. After the statute, the Attorney-General lost that power. Deportation was, in effect, mandatory. In this sense, the Claimant is entitled to say that the position was comparable to the change brought about by the 2007 Act. The Claimant is also entitled to point to the significance of the change. The majority thought, at p. 325,

"There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation."

27. However, Mr Eadie is right to say that the Court placed considerable emphasis on the action which St Cyr had taken in reliance on the law as it had previously stood. It said at p.323,

"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.

28. It is, of course, axiomatic, that the courts must vigilantly examine asserted legislative powers of detention. That is particularly so in connection with powers of executive detention. But that principle does not alter the conclusion to which I have come that the automatic deportation provisions do apply to those who were convicted between 1^st November 2007 and 31^st July 2008.
29. In these circumstances, it is unnecessary for me to consider Mr Eadie's alternative submission that the Court should fill an inadvertent 'gap' in the legislation pursuant to cases such as Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 and R (Kelly) v Justice Secretary [2009] QB 24 CA.

Is the power of detention in s.36(1)(a) of the 2007 Act incompatible with Article 5 of the ECHR?

30. Article 5 provides

"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."

31. Mr Husain's argument is simple. Section 36(1)(a) gives the Secretary of State a power to detain while he is still considering whether the obligation to deport under s.32(5) applies. It is a power which will be exercised before a conclusion has been reached as to whether the person concerned is amenable to automatic deportation. At this stage the Secretary of State will not yet have decided whether one of the exceptions in s.33 applies. This power will therefore necessarily be used in advance of "action with a view to deportation." That is not a purpose within Article 5(1)(f). No other sub-paragraph of Article 5 can be invoked by the Secretary of State. It follows that this part of the 2007 Act is incompatible with the Claimant's Convention rights.
32. Mr Husain relies as well on the equally authentic French text. The final phrase of sub-paragraph (f) reads:

"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.

33. Mr Husain observes that both the European Commission of Human Rights (in Lynas v Switzerland No. 7317/75, 6 DR 141 (1976) at p. 167) and the European Court of Human Rights (in Quinn v France (1996) 21 EHRR 529 at p.151) have emphasised that both the English and French texts make clear that deprivation of liberty under this sub-paragraph is justified only for as long as extradition proceedings are being conducted. The Grand Chamber of the Court has made the same point in the context of deportation proceedings (see Chahal v UK (1996) 23 EHRR 413 at [113]).
34. For the most part these cases have concerned whether detention has continued for so long that it can no longer be said that extradition or deportation proceedings are in progress. In all three cases cited in the previous paragraph, the issue for the Court was whether the government was prosecuting the extradition or deportation proceedings with due diligence. That in turn raised the question as to whether the duration of the proceedings (and the consequential detention) were excessive (see for instance Chahal at [113]). Mr Husain does say that detention here has been excessive, but that is the object of his third ground of challenge (see below). In the context of the present ground, he submits that these authorities are helpful because they show that deportation or extradition proceedings must be actively pursued for Article 5(1)(f) to justify detention. That, he submits, is not a case as here where no final decision has been taken by the Secretary of State as to whether he will subject the Claimant to automatic deportation.
35. Mr Husain relies on McVeigh, O'Neill and Evans v UK (1981) 5 EHRR 71. There the European Commission of Human Rights warned that the Article 5(1)(f) cannot be relied on to justify detention in advance of the state forming a firm intention to deport. The Applicants in that case had been detained for 45 hours for examination under the Prevention of Terrorism (Supplemental Temporary Provisions) Order 1976. The Commission found that this detention was justified under Article 5(1)(b) which is not material to the present dispute. However, it rejected the government's alternative argument under Article 5(1)(f). It said:

"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.

36. I do not accept these submissions. A very similar argument was advanced in the case of Chahal. Before the European Commission of Human Rights it was argued that the applicant had not been detained "with a view to deportation", because for some of the time, at least, he was detained while the government considered his asylum claim. The Commission rejected that argument in its opinion at p.447 [119]. It said

"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."

37. It is right, as Mr Husain commented, that the European Court of Human Rights did not deal with this issue. However, that was because before the Court the applicant did not dispute that he had been detained "with a view to deportation" – see [108].
38. It is also right that Mr Chahal's detention began in August 1990 with the Secretary of State's decision that he should be deported because he considered that Mr Chahal's presence was not conducive to the public good on grounds of national security. Although no such step has been taken in the present case, that is because the structure of the 2007 Act is different from the structure of the 1971 Act under which Mr Chahal was to be deported. Because deportation is discretionary under the 1971 Act, it could not be said that action with a view to deportation was being taken until the Secretary of State decided that a person's presence in the UK was not conducive to the public good. The position of a foreign criminal under the 2007 Act is different in two respects. First, deportation is automatic unless one of the exceptions in s.33 apply. Second, the deportation of a foreign criminal is deemed by statute to be conducive to the public good – see 2007 Act s.32(4).
39. Mr Husain conceded that "action with a view to deportation" did not connote court proceedings. It must also be the case that the phrase is intended to have an autonomous meaning i.e. one which is consistent across the states who are party to the Convention. It cannot have a meaning that is dependent on the particular features of the system operating in a particular state. The practical approach adopted by the Commission in the Chahal case is, I respectfully suggest, the right one. There is no difference in substance between the examination of an asylum claim after a decision to deport pursuant to s.3(5)(a) of the 1971 Act and examination of an asylum claim to see whether the exception in s.33(2) precludes automatic deportation. Nor do I think that the French text of the Convention produces a different result. In both of these cases it can properly be said that there is a "procedure d'expulsion…en cours."
40. In McVeigh the government was unable to rely on Article 5(1)(f) to justify the applicant's detention because there was not at the relevant time a "sufficiently firm intention to operate the relevant powers." In the present case, it is clear that the Secretary of State did intend to operate the powers of deportation unless the Claimant could show that he came within one of the exceptions. In his letter to the Governor of the prison where the Claimant was serving his sentence, the Secretary of State asked the Claimant to be informed as follows:

"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.

41. Also on 17^th February 2009 the Claimant was handed a letter addressed to him from the Secretary of State. This said

"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 17^th 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).

42. While I accept that this ground was arguable and grant permission in respect of it, it is not a ground which in the end succeeds. For all the reasons that I have given I do not consider that the power of detention in s.36(1)(a) is incompatible with Article 5(1) of the Convention.

Has the detention power under s.36(1)(a) been unlawfully exercised in the Claimant's case?

43. The express powers to detain "pending removal" or "pending deportation" in the Immigration Act 1971 Schedules 2 and 3 are subject to implied limitations. First expressed by Woolf J. (as he then was) in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, they were formulated by Dyson LJ in R(I) v Secretary of State for the Home Department [2003] INLR 196 at [46] in these terms:

"(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."

44. Mr Husain submitted that some adaptation of these principles was necessary to reflect the nature of the power to detain under s.36(1)(a) of the 2007 Act. Mr Eadie accepted that a degree of modification was necessary. In the end I am not sure that there was any significant difference between the positions canvassed by the parties. In any case, I would express the implied limitations in this context in this way:

(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.

45. In his submissions as to the nature of the implied limitations, Mr Husain argued that an analogy could be drawn with the Fast Track procedures which have been established for deciding certain asylum claims by those seeking leave to enter the UK. He submits that detention in these circumstances is only tolerated because the process is speedy. However, I do not accept that these situations are analogous. Those who are detained under the Fast Track procedure will be removed (unless they establish their asylum or human rights claims) simply because they lack any other right to enter into the UK. There is no other positive reason for their expulsion. By contrast those who are being deported because of their criminal offences are to be expelled because their presence in the UK is not considered to be conducive to the public good, either as a result of the statutory assumption or because of an individualised decision by the Secretary of State. In their cases a rather longer period of detention may be compatible with both the Convention and the common law. This is not because detention (or deportation) is some additional punishment, but because the public interest is rather greater in ensuring that they do not abscond and that any deportation can be implemented. The same is true where a person is to be removed because his presence is not conducive to the public good and there is a risk that he will commit offences if at liberty – see R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [54]-[55].
46. In this case the Claimant argues that the exercise of the power of detention in his case infringes the implied limitations for the following reasons:

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 4^th 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.

47. At the Secretary of State's request, the Governor gave the Claimant 20 working days (effectively therefore 4 weeks) to provide information as to why any of the exceptions applied in his case. That period expired about 18^th March 2009. On 27^th April 2009 the Claimant's solicitors raised for the first time the possibility that he might already have been recognised as a refugee. They asked for the Claimant to be released and an immediate decision as to whether the Secretary of State considered that s.32(5) applied. They submitted that his removal could not in any case take place consistently with the Refugee and European Human Rights Conventions. More detailed representations to this effect were made on 8^th May 2009 (in a letter before action) and again on 19^th May 2009. The Claimant's solicitors had also made a subject access request to the Home Office under the Data Protection Act 1998. Mr Eadie accepted that this had not been dealt with as promptly as it should have been. The material had been provided by the time of the hearing of this application. Although the Claimant considered that the degree of redaction was or may have been excessive, that was not an issue which I was asked to resolve. On 10^th June 2009, the Secretary of State said that the Claimant had not previously been recognised as a refugee, but the representations would be treated as an asylum request which would then be progressed. On 2^nd July 2009 the Claimant's solicitors were notified that a screening interview would be held on 20^th July 2009. However, on 9^th July 2009 the Claimant's solicitors asked for this to be deferred because the Home Office had not by then responded to the Data Protection Act request. The Home Office complied. On 12^th August 2009 the Claimant's solicitors said that the interview could proceed. This and the substantive asylum interview took place on 4^th September 2009. As at the date of the hearing (29^th September 2009) there had been no decision, but I was told that one was expected imminently.
48. I have rejected the Claimant's argument that the reasonableness of the length of detention should be measured against the bench mark of the time table for dealing with Fast Track claims. However, it would be quite wrong for consideration of the asylum claim to take the very considerable time which has regrettably been the case on some occasions in the past in relation to the claims of other asylum-seekers. When the applicant is in detention, there is an obvious need for the Home Office to respond to the claim expeditiously. In this case there will have been about 5 ½ months between the first indication of an asylum claim and the decision (if it is indeed made imminently). Part of that period was occupied in discovering whether the Claimant had been granted refugee status already (as he seemed to believe). In addition, for about a month of that period the process was deferred at the request of the Claimant's solicitors. Whether or not their reason was a good justification for deferring the interview, I do not regard this period of time as so great as to infringe the implied limitation on the power to detain.
49. Mr Husain asked me to take into account the report of Dr D.L. Bell dated 22^nd September 2009. He is a Consultant Psychiatrist at the Tavistock clinic. He concludes that the Claimant suffers from a severe psychiatric disorder and he diagnoses a condition between a schitzotypal personality disorder and a psychotic disorder such as schizophrenia. Dr Bell's view is that it is not possible while the Claimant is held in detention to provide adequately for his psychiatric needs. He says:

"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).

50. Turning to the third principle, in my judgment it cannot be said at this stage that it will take more than a reasonable time for the Secretary of State to achieve the Claimant's deportation (assuming for this purpose that the Claimant is not allowed to stay in the UK on refugee or human rights grounds). The potential difficulty regarding a travel document has only been recently raised. While the Secretary of State may choose to take steps to arrange this in advance of deciding the asylum/human rights claim, there may be good reasons why he would not want to do so (if, for instance, it might exacerbate a risk to the claimant or his family). In any case, I do not consider that the Secretary of State is obliged as a matter of law to take such steps in advance of deciding the asylum or human rights claim. It is not possible at this stage (at least on the evidence before me) to say how long the process of obtaining a travel document will take. In a note provided after the hearing, the Secretary of State said that, as a Somalian national, the Claimant can be removed on the basis of an EU travel letter and that the process for obtaining such a document is quick. The Claimant's written response took issue with both propositions. It is not possible at this stage and on these materials to resolve the matter.
51. I have already mentioned that in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 the Court of Appeal said that a risk that a person would offend or re-offend was a relevant circumstance in deciding whether a reasonable time had been exceeded. In this case, the Secretary of State is entitled to observe that the Claimant's probation officer has said that he is a violent and racist individual who would be likely to re-offend if released. His previous criminal convictions included three assaults and possession of a hatchet in a public place. The index offences which led to his last sentence included assault occasioning actual bodily harm on a security guard and possession of an offensive weapon. It is not surprising that the Secretary of State is concerned about the possibility of re-offending if the Claimant was to be released.
52. Finally and in connection with the fourth principle, I also reject the submission that the Secretary of State has failed to act with reasonable diligence. It may be that he could have started the process of deciding whether any of the exceptions in s.33 applied at an earlier stage and before the custodial term of the Claimant's sentence had almost expired. In future it would be sensible for him to do so in many cases. It may not be practicable if the person concerned has spent a lengthy time on remand which is ordered to count against his sentence so that the custodial term comes to an shortly after he has been sentenced. On the other hand, if a lengthy term of imprisonment has been imposed, there are obvious disadvantages in starting too early the consideration of what the position will be when the custodial term comes to an end. Things may change. But in cases such as the Claimant's where there are a few months between sentence and the automatic release date neither concern will be likely to apply. As Mr Husain argued, if the initiation of the process is delayed, it is likely to prolong the period of s.36(1)(a) detention. In the present case, however, there are several reasons why I would not regard the failure of the Secretary of State to act sooner as rendering the Claimant's detention unlawful. First, this was new legislation. It only came into effect on 1^st August 2008. Within the test of 'reasonable diligence' some limited scope could be allowed to the Secretary of State to set up appropriate procedures. Second, as it happened, the Claimant did not respond speedily to the Governor's request to raise any asylum, human rights or other reasons why one of the exceptions in s.33 applied in his case. It is far from obvious, in other words, that any delay on the part of the Secretary of State was causative of the prolongation of his detention. Third, there was no evidence as to why the process had been started so close to the end of the Claimant's custodial term. However, it was only with the Claimant's skeleton argument that the point was made that the Secretary of State had failed to act with reasonable diligence because he had not started the process of investigation during the Claimant's custodial term. In these circumstances, I do not think that it would be right to hold this evidential gap against the Secretary of State.
53. Accordingly, I do not accept that the Secretary of State has exercised the power of detention unlawfully in the Claimant's case.

Summary and conclusion

54. In summary, therefore, I find that:

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 30^th 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 1^st 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.

55. It follows that this application for judicial review is dismissed.

Note 1   This was not a reported decision of the AIT, but the Secretary of State made no objection to its citation.    [Back]