QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
ADEL BEN MAHFOUD
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Lisa Busch (instructed by Treasury Solicitor) for the Defendant
Hearing date: 29 July 2010
Crown Copyright ©
MR JUSTICE HICKINBOTTOM :
"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."
"(2) Where notice has been given to a person in accordance with regulations… of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph… (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
(i) The power of detention exists for the purpose of deporting the relevant person ("the deportee").
(ii) The power exists until deportation is effected: but it can only be exercised to detain the deportee for a period that is reasonable in all the circumstances.
(iii) Whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deportee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the deportee must be released immediately.
(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a "reasonable time" will depend upon the circumstances of a particular case, taking into account all relevant factors.
(v) Those factors include:
(a) The extent to which any delay is being or has been caused by the deportee's own lack of cooperation in, for example, obtaining an emergency travel document ("ETD") from his country of origin.
(b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order).
(c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur.
(d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour.
(e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD.
That list of factors is not, of course, exhaustive.
(vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no "trump card". Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee's release.
(vii) The burden of showing that detention is lawful lies upon the Secretary of State.
History of Attempts to Obtain an ETD
"This is to inform you that the investigations carried out into the identification file of the above named have been unsuccessful. In fact, the information provided in the Identification File corresponds to an Algerian national, but the father of this person declared that the photos supplied are not of his son." (emphasis in the original).
(i) The Claimant's schools. A request for access has been made to the Director of the Centre of Education in Algiers (see paragraph 30 above).
(ii) The Claimant's employment. The UKBA are currently following the leads provided by the further information they received on 27 July 2010 (see paragraph 32 above).
(iii) The Claimant's identity card and birth registration. The UKBA consider there are further enquires that might be made in Algeria in respect of these.
"Serious consideration has to be given on releasing the subject because he has complied with all the efforts made by us in obtaining an ETD for his removal, but the Algerian Consulate continue to refuse to issue a travel document for his removal."
However, later in the year, both the Claimant and the UKBA appear to have adopted more entrenched positions as time wore on: and, starting with the Detention Review Report dated 15 April 2009, the UKBA appear to have become more and more sceptical of the story the Claimant was telling them with regard to his identity.
"On any view that is a very long time and right at the outer limit of the period of detention which can be justified on Hardial Singh principles except in the case of someone who has in the past committed very serious offences and who may go on to commit further such offences or who poses a risk to national security.
1. To live and sleep each night at the arranged accommodation.
2. To report on a twice-weekly basis to the nearest UK Border Agency Reporting Centre every Tuesday and Thursday between 9am and 4pm.
3. That in the event of the Claimant applying for any variation of address or bail that the UK Border Agency be notified of the details of the application.
4. That the Claimant does not engaged in any employment or profession, paid or unpaid.
5. That the Claimant shall remain in the arranged accommodation identified in paragraph 1 between midnight and 6am.