Neutral Citation Number: [2009] EWHC 826 (Admin)
Case No: CO/6513/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/04/2009

Before :

MR C M G OCKELTON
(sitting as a Deputy High Court Judge)
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Between :

	THE QUEEN
ON THE APPLICATION OF ORLANDO POLANCO	Claimant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARMENT	Defendant	

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Alex Goodman (instructed by Sutovic and Hartigan Solicitors) for the Claimant
Carine Patry Hoskins (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 16 March 2009
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Judgment

Mr C M G Ockelton: 

1.	This is an application for interim relief by way of the claimant’s release from detention.  After hearing submissions from the parties I indicated that I would grant the relief sought, for reasons to be given at a later date.
2.	The claimant is a national of Columbia.  He is now forty-two years old.  In 1992 he married a Portuguese national exercising treaty rights in the United Kingdom, and, apparently subsequently, came to the United Kingdom as a visitor with six months leave.  During the course of that leave he applied to remain with his wife as the spouse of an EEA national.  He was granted leave until 1997 and then again until 28 September 2003.  There were two children of the marriage, the younger now aged twelve.  On 22 August 2003 the claimant was convicted on two charges of indecent assault on a girl under fourteen and one of gross indecency with a child.  He was sentenced to a total of two years’ imprisonment, and the conviction carried the consequence of an obligation to sign the sex offenders’ register for ten years.  He was released from custody on 31 June 2004.  He signed the sex offender register then, but failed to do so in 2005.  The investigation into that failure led to his identification as an overstayer, following the expiry of his leave in 2003, and he was detained in June 2006.  At the date of the hearing of this application, the position was that he had been in detention since then, a period of just under thirty-three months.  
3.	During that period of immigration detention there had been several reviews of his detention, and there have also been proceedings before the Asylum and Immigration Tribunal, including applications for bail.  Shortly after being detained, in fact on 11 July 2006, the claimant claimed asylum.  He was interviewed on 16 July 2006.  His file appears to have been referred to a number of departments in the Home Office.  He was interviewed again in relation to his asylum claim on 29 January 2007, and asylum was refused on 4 October 2007, on which date he was also served with a notice of a decision to make a deportation order against him.  On 11 January 2008 he was served with a supplementary letter giving the Secretary of State’s view that, as his marriage had broken down, he was no longer entitled to residence in the United Kingdom as a family member of an EEA national.  His appeal against the decision to make a deportation order was dismissed by the Tribunal on 4 February 2008.   He sought and obtained an order for reconsideration.  As Deputy President I presided over the hearing of the reconsideration in the Tribunal.   His appeal was again dismissed on reconsideration in a determination sent out on 15 September 2008, [2008] UKAIT 00074.  
4.	The principal reason why the Tribunal dismissed the appeal was that the claimant had failed to demonstrate that he had completed the necessary period of residence in the United Kingdom “with the EEA national”, as required by the Immigration (European Economic Area) Regulations 2006 (SI 2006/003).  The underlying factual basis for that conclusion was that clearly the marriage had broken down; he had not lived with his wife since he was sentenced to terms of imprisonment for his criminal offences.  The Tribunal was told at the hearing before it in July 2008 that the claimant was in the process of being  divorced, but it does not look as though that was right.  The papers now before me suggest that the divorce took place earlier in 2008.
5.	The subsequent history, and perhaps the future, of the claimant’s appeal is of some relevance to these proceedings.   The Tribunal refused the claimant permission to appeal to the Court of Appeal, but the Court of Appeal granted permission.   In the mean time, the Court of Appeal has referred to the European Court of Justice questions arising in Secretary of State for Work and Pensions v Taous Lassal [2009] EWCA Civ 157.  The claimant’s position before me is that the reference in that case has the necessary consequence that the claimant’s appeal will be either referred as well or stayed until the result of the reference is known.  His substantive judicial review claim challenges the legality of his detention and is stayed pending the outcome of his appeal to the Court of Appeal.
6.	If it is right that the Court of Appeal will stay or refer his appeal, that means that the claimant’s detention, having already lasted thirty-three months, has a prospect of continuing for the considerable period of time that it is likely to take for the European Court of Justice to reach a judgment on the reference.  I have not found it easy to decide whether the issues in this case are so similar to those in Lassal that the outcome suggested is inevitable.   The judgment of the Court is very brief; and it appears to imply in paragraph [3] that the transitional provisions in paragraph 6 of Schedule 4 to the Regulations did not apply to a case such as that which was before the Court, whereas they were crucial to the decision of the Tribunal in the present claimant’s appeal.  I was, however,  able to reach a conclusion on this application without having to predict how the Court of Appeal will proceed on the claimant’s appeal to it.  
7.	It may be worth while at this point to set out what may be called the claimant’s detention history.  He was in custody following his sentence from 24 September 2003 to 31 June 2004.  He was then at liberty from that date until 22 June 2006 (variously referred to in the documentation as 23 or 25 June 2006) when his detention under the Immigration Acts began.  The period of detention since that date falls within two distinct periods, which it is worth my trying to distinguish, because it is not obvious that the Secretary of State has been able to do so or that she has been clear about the powers she was deploying in detaining the claimant.  
8.	It is asserted in the claimant’s submission that when he was initially detained he was served with a notice indicating that he was liable to detention as an illegal entrant.   A notice in such terms could not be right.   His last entry to the United Kingdom was with leave.  On the other hand, on 17 June 2008, his “monthly progress report” begins by asserting that “on 23 June 2006 you were detained under Schedule 3 to the Immigration Act 1971”.  That cannot be right either.   The position as I understand it is that the claimant was liable to detention as an overstayer, and having been detected as such was detained as an overstayer under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, as applied by s.10(7) of the Immigration and Asylum Act 1999.  
9.	Detention under those provisions continued until 4 October 2007, when he was served with the notice of a decision to make a deportation order against him.  It was at that point only that he became liable to detention under paragraph 2(2) of Schedule 3 to the 1971 Act.  It is unfortunate that in such an important matter the Secretary of State appears not to be familiar with the sources of her powers.  
10.	The claimant’s principal position is that he is entitled to succeed in his immigration appeal; that he is and at all relevant times was entitled to reside in the United Kingdom; therefore he has never been liable to immigration detention.  I am not required to decide whether he is liable to detention under the Immigration Acts; nor am I required to decide whether, if he is liable to detention under the Immigration Acts, there is some date in the past at which his detention became unlawful.  I am asked only to decide whether he should be released now.  For that purpose I therefore assume that he is liable to detention under the Immigration Acts, and I reach no view on whether his detention up to this point was lawful as an exercise of the powers under those Acts.  
11.	The leading authority on the legality of continued detention under the Immigration Acts remains the judgment of Woolf J (as he then was) in R v Governor of Durham Prison ex parte Singh [1984] 1 WLR 704 (“Hardial Singh”),  although the three principles there set out at 706 have more recently been summarised conveniently by Dyson LJ in R(I) v SSHD [2002] EWCA Civ 888 at [46] as follows:-
“(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.”
 
12.	What then are the factors that ought to be taken into account in deciding whether detention is justified?   Dyson LJ said this at [48]:
“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971.  But in my view they include at least: the length of the period in detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained  person is being kept, the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”
13.	In the ensuing discussion, Dyson LJ makes it clear that refusal to accept voluntary repatriation (which may carry the assumption that the individual will not leave the United Kingdom unless forced to do so) carries some weight but that it must not be overstated.  In R(A) v SSHD [2007] EWCA Civ 804, Toulson LJ dealt with some of the factors in this way:-
“54.  I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention.   The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made.   The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once.  In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making.   
55.  A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences.  Mr Drabble [for the claimant] submitted that the purpose of the power of detention was not for the protection of public safety.  In my view that is over-simplistic.   The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good.  If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detention pending his removal or departure.”
  
14.	The Court in that case was dealing with a person who had been assessed in his parole report as presenting a high risk of sexual re-offending, and of  whom the judge had said that he “evinces now a single objective, namely to stay in this country by hook or by crook”.   It allowed the Secretary of State’s appeal against the judge’s finding that a period of over nineteen months’ detention was unlawful.
15.	R(M) v SSHD  [2008] EWCA Civ 307 was a case in which  the claimant’s liability to re-offend had been assessed at “medium”; and the risk of absconding, based on his lack of ties in this country and his expressed wish to remain here at all costs, was thought to be high.  The court declined to find that a detention which by the date of the hearing before it had lasted some seventeen months was unlawful, but at the end of his judgment Dyson LJ expressed concern and a hope that further proceedings in relation to the claimant would not be delayed.
16.	The most recent review of the claimant’s detention by the Secretary of State in the present case was conducted on 11 March 2009, in accordance with a consent order in the present proceedings.  The factors justifying his continued detention were said to be the following:-
“a)	Risk of absconding (including lack of ties to the UK);
b)		Likelihood of re-offending; 
c)		Serious nature of previous offending; 
d)		The fact that his removal can be effected quickly once he becomes removable.”
17.	Those are the factors upon which Ms. Patry Hoskins relies now.   The assessment of the risk of absconding is based on two factors.  One is, as indicated, his lack of any ties in the UK.  He does not appear to be in active contact with his ex-wife or their children, and he has no other known links in the United Kingdom; that, in itself, is in no doubt partly in consequence of his detention.   In addition the Secretary of State relies on his failure to sign the sex offenders’ register as an indication of his unwillingness to comply with an Order of the Court.  So far as that is concerned, the claimant’s position is that the failure was a genuine mistake.  It is expressed in Mr Goodman’s skeleton argument in the following way:
“he understood he was required to sign the register on a Thursday.  In fact he had been required to sign on a Tuesday”
That may or may not be right.  Documentation before me suggests that he was required to sign the register in January 2006, although the appellant disputes that.  In any event, by June he had not done so; he was invited by the Police to attend some sort of compliance interview, but did not do so; and he was then arrested.  The Secretary of State does not accept that there was a “genuine mistake”, for which reason she, as I have said, takes this factor as an indication of liability to abscond.  
18.	So far as likelihood of re-offending is concerned, the Secretary of State’s view appears to be that the offences of which the claimant  was convicted carry such a likelihood by their very nature.  There does not appear to have been any other real assessment of the likelihood of re-offending in his case, and certainly no recent assessment.  The Secretary of State also points to the seriousness of the offences, as demonstrated not only by the length of the sentence imposed, but by the age of the victims.   Lastly, on removability, the Secretary of State recognises that the claimant cannot be removed while his appeal continues but does not accept that a long delay is inevitable.  Her position is that this is not a case where the claimant’s country of nationality is one to which removals are difficult.  
19.	On behalf of the claimant, Mr Goodman submits that the justifications raised by the Secretary of State do not in the claimant’s case have the weight that the Secretary of State seeks to attribute to them.  He asks me to regard the claimant as a person who on release from his sentence complied with the conditions of his licence.  He reminds me that the claimant has been in the country for a very long time.  He also says (and I have no reason to doubt this) that the period of detention in the claimant’s case is longer than that in any comparable reported case of which he is aware, except R(A) v SSHD.  
20.	Now that the matter is before the court, it is for the court to determine whether continued detention is justified.  If there were any doubt about that, it is removed by the judgment of Keene LJ in R(A) v SSHD at [71] – [72] and the cases he there cites.  It might at first glance seem odd that the question of whether detention is justified for the present and the future should in part depend on the length of time for which it has continued in the past.   After all, if the risks of release from detention exist, they pertain to the future.   But it has been clear at least since Hardial Singh that, faced with a period of detention in the past which may be in many cases be assumed to be lawful, the court has to decide whether the period of detention is now too long.  What it is necessary to do is to balance the gravity of any risks against the breach of the principle of liberty.  The longer the detention is (or is likely to be) the greater the risk will have to be in order to justify it.   It follows from that, that a risk at a particular level becomes of less weight in the balance as the period of detention continues.  To put that another way, if throughout the period of detention the Secretary of State relies on the same risk to justify it, there may well come a point where that risk no longer does justify it.   As Dyson LJ put it in R(M) v SSHD, at [37] “however grave the risk of absconding and re-offending, there must come a time when it can no longer be said that the detention is reasonable”.  Ms. Patry Hoskins emphasised, and I accept, that there is no absolute limit on the length of detention under the Immigration Acts.   But that does not mean there is no effective limit in any particular case.
21.	The Secretary of State says that there is a risk of the claimant absconding if he is released.  In my judgment that is right: there is.  He has no home in the United Kingdom and it might therefore be difficult to ensure that he was available for deportation if the opportunity arose.  He has no known friends, or relations with whom he is in touch.  Further, I accept that his failure to sign the sex offenders’ register indicates an unwillingness to comply with the law, and his attempts in these proceedings to minimise the matter increase the perceived risk.  On the other hand, the claimant is not a person who has demonstrated a desire to stay in this country at all costs.   His overstaying his leave cannot be condoned, but he was here lawfully for about eleven years, and when his leave ran out he no doubt had other things on his mind.  The terms of his licence on his release from prison served to ensure that he was always under the observation of the authorities in this country.  So, although the risk exists, it is perhaps not as weighty a matter as in some of the other cases to which I have referred.
22.	I do not accept the Secretary of State’s assessment of the likelihood of the claimant’s re-offending.  I think I am entitled to agree to this extent: that where there has been a conviction for a sexual offence there is always some risk of re-offending.   But the claimant was released from his prison sentence on licence, at a date which does not appear to have been delayed by any doubts about the danger he posed to the community.  There is no suggestion that he committed any further offence whilst he was at liberty.  It was difficult to see why it was thought that he was fit to be in the community relatively soon after commission of the offences, but is now regarded as unfit to be in the community because of the risk of his committing further offences.  Given the Court of Appeal’s grant of permission to appeal, it cannot be said that he has been maintaining an appeal that is completely without merit, in order to delay his removal.  In my view, and on the basis of what must have been the assessment of him in 2004, the likelihood of his re-offending is very low.   
23.	The offences of which he was convicted were relatively serious.  But the seriousness of the offences is not of direct relevance in assessing the justification for detention.  That is because immigration detention is not the punishment for the offences.  The seriousness of the offences is of indirect relevance, however, because, in cases where there is a real likelihood of re-offending, the risk to the public is graver if the offence likely to be committed is a serious one.  Where there is (as I have found is the case here) no real likelihood of re-offending, however, it seems to me that the seriousness of the original offence can have little if any weight.   So far as concerns the last factor, the ability to remove the claimant, I accept that if he is unsuccessful in his appeals, he can be readily removed.
24.	The authorities to which I have referred  are, as the content of the extracts I have cited makes clear, concerned with detention pending deportation where the Secretary of State has decided, in the case of a convicted criminal, that his deportation from the United Kingdom is conducive to the public good.  That is now the position is the claimant’s case as well.  His detention under Schedule 3 as a person who has received notice of a Secretary of State’s intention to issue a deportation order against him has lasted seventeen months.  That is a relatively long period, requiring relatively weighty justification.  But there is a further important factor in this case, which is that it immediately followed a period of detention under Schedule 2.  Detention under Schedule 2 has no specific reference to the detainee’s criminal record or propensities, and is not referrable to an intention to deport him on grounds that his deportation is conducive to the public good.   It is therefore difficult to see that such factors as a likelihood of re-offending, or the gravity of offences the person may have committed, would be of relevance in detention under Schedule 2.  As it happens, however, those are the factors which I have found to be of little weight in the present case, whereas the risk of absconding (properly, in my judgment, assessed even under Schedule 2 by reference to failure to comply with any relevant Court Order), and the ease of removal, are clearly relevant under Schedule 2 and would have been of relevance during the first part of the claimant’s immigration detention.  But I regard it as of considerable relevance in the present case that the prolongation of the claimant’s detention under Schedule 2 to a period of fourteen months was caused entirely by the Secretary of State’s failure to determine efficiently and promptly a claim to asylum, made by a person in detention, and which the Secretary of State apparently regarded as without merit.   The Secretary of State may say now that she is doing all she can to bring the claimant’s case to a speedy halt, but that was clearly not the position in 2006 and 2007, and the delays then account for not far short of half the total period of detention.  The fourth of Dyson LJ’s principles in R(I) v SSHD is that “the Secretary of State should act with reasonable diligence and expedition to effect removal”.  It is clearly not open to the Secretary of State to justify lengthy detention in the past merely by commitment to that principle in the future.   The position here is that it is obvious that for a lengthy period in the past the Secretary of State did not act with the diligence and expedition that might be expected.  By that failure, she added to the length of the claimant’s eventual period in detention.
25.	It seems to me that even if the claimant had been first detained in October 2007, so that all his detention had been under Schedule 3, the justifications advanced by the Secretary of State would not be sufficient to maintain his detention now.  When the earlier period is added, carrying with it the Secretary of State’s failure to act with reasonable diligence and expedition to determine the issue which it was thought at that stage would enable his removal, the claimant’s case is much stronger.   It is for those reasons that at the end of the hearing I ordered his release on terms to be agreed.