QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF HUSSEIN
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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(Official Shorthand Writers to the Court)
MR J JOHNSON appeared on behalf of the Defendant
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"where notice has been given to a person in accordance with regulations ... of a decision to make a deportation order against him ... he may be detained under the authority of the Secretary of State pending the making of the deportation order."
"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 ..."
accommodation with him. The defendant generally has made an allegation that the claimant applicant caused a disturbance at the reporting centre. However, for present purposes, these are not allegations which need weigh with the court; they have not been relied on by the Secretary of State as such to justify the continuing detention.
"On 15 October 2009, a plane carrying 44 deportees from the United Kingdom landed at Baghdad airport. Shortly after that it took off again, heading back to the United Kingdom with 34 of those deportees on board. They had been refused entry to Iraq at Baghdad Airport. An inspector in the United Kingdom Borders Agency who was on board the plane, Nicholas Barton, gave evidence to me that such an event had never happened before in his knowledge or experience, it was the first flight carrying involuntary returnees to Iraq for some 5 years, if not longer, to Baghdad Airport, although there had been successful charter flights carrying involuntary returnees to the area of Iraq controlled by the Kurdistan Regional Government, the KRG."
"Plainly, the circumstances in which the sole flight for 5 years to Baghdad failed in its mission to return all the deportees on board raises the question of whether any future flight is likely to be successful within a reasonable time scale, or whether it is unduly optimistic to think it might be. That demands an investigation of the circumstances in which the attempt to return deportees by that flight came to the fate I have described."
"Where notice has been given ... he may be detained under the authority of the Secretary of State pending the making of the deportation order."
Sub paragraph 3 reads:
"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"
It is now well established that "pending" means "until".
"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".
As Dyson LJ said further into his judgment:
"Once it becomes apparent that the Secretary of State will not be able to affect deportation within a reasonable period, the detention becomes unlawful, even if a reasonable period has not yet expired."
Put another way, there has to be some realistic or reasonable prospect of removal within a reasonable time frame.
" .. for continued detention to be lawful, two questions have to be capable of being answered. When does the Secretary of State expect to be able to deport? And secondly, what is the basis of that expectation?"
A helpful statement of principle as to what is meant by a reasonable period is to be found in the judgment of Dyson LJ in I at paragraph 48:
"It is not possible or desirable to produce an exhaustive list in all the circumstances that are or may be relevant to the question 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 would include, at least, the length of the period of detention, the nature of the obstacles that stand in the path of the Secretary of State preventing the deportation, the diligent speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles, the conditions in which the detained person has been kept, the effect of the detention on him and his family, the risk that if he was released form detention he would abscond, and the danger that if released he would commit criminal offences. It is recognised that if there is both a risk of absconsion and a risk of re-offending, or even if only one of them exists, that a longer period of detention might be justified as being reasonable than might otherwise be the case."
See also Dyson LJ in M  EWCA Civ 307, at paragraph 37, where he said:
"However grave the risk of absconding and re-offending, there must come a time when it can no longer be said that detention is reasonable."
"Decisions for what is reasonable in all the circumstances calls for a difficult exercise of judgment, as to which opinions may legitimately differ."
"There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions often being inextricably linked in my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although the Human Rights Act Jurisprudence would tend in this direction)."
50. From this history emerge these reasons for refusal. First and generally was reluctance in some quarters in Iraq to accept any returnees; Secondly, an insistence upon full documentation and a distrust of EUL letters; thirdly - and significantly, because in my view this featured persistently throughout the evidence which I have heard -a dislike of acceptance at Baghdad of those who were of Kurdish ethnicity."
'A critical review of the operation has established lessons learnt and next steps.'"
Those next steps were for the purpose of mitigating the risk of non cooperation with future flights. Those steps are then listed by Langstaff J at paragraph 53, sub paragraphs 1 to 5:
"(i) UKBA will offer a visit programme for key Iraqi officials in advance of the next flight to secure buy in to the charter.
(ii) FCO is seeking to obtain a letter from the Iraqi PM's office detailing support from the UK's enforced returns programme.
(iii) the FCO will review, engage and update on actions with key Iraqi personnel in the lead up to the next flight.
(iv) We are engaging with EU partners to identify and learn from their returns processes to Iraq.
(v) a ministerial visit may be proposed to reiterate the level of importance the UK places on enforced returns to Iraq."
"60. Critical in my determination has to be a view as to the likely timescale for the next charter flight of involuntary returnees to Baghdad. Here the history would suggest it is likely to be some considerable time away, because it has taken some four years since the Memorandum Of Understanding, very nearly five, before the first such flight under it to Baghdad, and that had to be preceded by meetings in March, July and September. Since October there has been no further attempt to engage in that sort of discussion.
61. Against that background, in the circumstances which I have heard evidence about, I have to form a view as to whether the defendant's undoubted desire on good grounds to deport the claimant will come to fruition. It is unlikely, in my view, to happen soon and it is not contended that it will. It is unlikely, in my view, to occur in the medium term, and is not contended directly that it will. When asked to provide a timescale, the defendant merely says "within a reasonable time". It is in many respects speculative, but I have to form the best assessment I can of the broad timescale before there will be any flight again to Baghdad, and more importantly in this case, whether this claimant is likely to be a passenger on that flight. Since the feature which most told against the 34 deportees being accepted in Iraq was Kurdish ethnicity, and a second feature, difficulty with documentation, this would argue that the claimant is unlikely to be an early passenger. However, the priority which the government places upon returning foreign national prisoners tells in the other direction, as does the fact that the claimant himself was high on the list for return as demonstrated by the fact that he was included in the flight in October.
62. On this evidence, taken as a whole, I cannot, it seems to me, have any reasonable assurance that the flight would at the earliest occur before the end of this calendar year. Even that is uncertain, and the probable date is likely to be later. The length of the detention, if it extends for that period, is thus uncertain and very close to arbitrary."
"(i) Matters have moved on since Ahmed. The Secretary of State's evidence in that case made it clear that the first step in arranging further removals was the facilitation of a visit to London by a Iraqi delegation. At the time of the hearing in Ahmed the timing of that visit had not been set. In all the circumstances, and having regard to the length of time the claimant had spent in detention, Langstaff J did not consider that removal could be effected within a reasonable time.
(ii) Since the decision in Ahmed, the Iraqi delegation has agreed to visit the United Kingdom. The visit is currently taking place. Discussions about the timescale are anticipated to take place during the week commencing 22 March 2010."
"Since the decision in Ahmed the Iraqi delegation has agreed to visit the United Kingdom. The visit was due to take place during the week commencing 15 March 2010, it was, however, cancelled and has yet to be rearranged."
"5) Paragraph 2 sub paragraph 2 of the summary grounds stated that a visit by a delegation from the Iraqi authorities was taking place at that time, and that discussion abouts the timescale for reinstating charter flights to Baghdad were anticipated to take place during the week commencing 22 March 2010. As a result of information provided to me yesterday, 22 March 2010, it is clear this statement is not correct.
6) The basis for the statement in paragraph 2 of the summary grounds for resisting the claim was information provided to me by UKBA's Country Specific Policy Team. That team is responsible for UKBA's policy in relation to removals to Iraq, and indeed other countries. On 10 March 2010 I was informed by the Country Specific Policy Team in the UK Border Agency that, during the week commencing 15 March 2010, the UK Border Agency would be hosting a visit by a delegation of Iraqi Immigration Officials to the United Kingdom. On 11 March 2010 I spoke to a Policy Adviser within the Country Specific Policy Team to confirm that the visit was still scheduled to take place during the week of 15 March 2010 and to outline its purpose.
7) I received no further contact from my colleagues within UKBA regarding the visit from the Iraqi delegation, and reasonably assumed that I would be informed of any change of plans. On the basis of the above information, I approved the filing of the original summary grounds for resisting the claim on 19 March 2010.
8) On the morning of 22 March 2010 I contacted the Policy Adviser within the Country Specific Policy Team to ascertain the outcome of the visit by the Iraqi delegation. I was informed that the visit had not taken place. I understand that the Iraqi delegation had chosen to postpone their visit to the United Kingdom. There is at this time no firm time frame for their visit to the United Kingdom. However, UKBA and FCO colleagues continue to work with the Iraqi authorities to research the visit at the earliest opportunity."
"Against detention for the uncertain length of time which I have identified being held unreasonable and disproportionate, I must place the risk of absconding and the likelihood of further offending. Absconding is liable to defeat the whole purpose of deportation. The claimant has indicated clearly he does not wish to be compulsory repatriated to Iraq, he has no strong community links in this country. I have expressed already my uncertainties about him. I regard the risk of his absconding as significant. He is someone who, in the course of his stay thus far has already failed in his reporting obligations. He explains that away, but it is nonetheless a fact. There is, it seems to me, also a risk he will engage in further crime. He has, for most of his short stay in this country, been in prison in consequence of two separate sets of criminal activity. However, this must be seen in proper focus. He is not a criminal of the sort who has featured in some decided cases, not like Mr Shapal, a suspected terrorist, nor, like Mr A, someone who is guilty of rape, nor is he guilty of violent robbery which also features in the case law. He is not, in my view, someone who would simply take any step to avoid being deported, nor is he, in my view, someone who poses a risk of the same order as have been identified in the cases to which I have been referred."
"To ask whether continued detention can be justified if there are available conditions of release which will provide a proportionate measure of security against a risk of absconding, which is the central risk in this case otherwise preventing release, or it might be justified if those conditions were not to be imposed."
The present case
1. The claimant submits that there is nothing of any significance to distinguish his case from that of Mr Ahmed and hence his continued detention should likewise be declared unlawful.
2. The Secretary of State in his summary grounds of resistance sought to raise three points of distinction in order to maintain his submission that this particular claimant's detention remains lawful.
3. Of these, two have now fallen away. The first was that to which I have already referred ,namely that matters have moved on since Ahmed and the timescale for removal has become more certain because the first step in arranging further removals has now been put into effect, namely the facilitation of the visit to London by the Iraqi delegation. As I have explained this can no longer be maintained by the defendant. Not only has the visit not yet taken place but an arrangement for such visit has been positively cancelled with no reason given. As I have previously observed, this all means that the future timescale for removal remains totally uncertain.
4. The other point of distinction no longer relied on, related to the nature of the claimant's offending which had led to the making of the deportation order against him. It was said that the claimant had committed a more serious sexual offence than that committed by Mr Ahmed and he therefore posed a greater risk to the public than that posed by Mr Ahmed. This ground of distinction has now been properly abandoned by the Secretary of State as not being in line with the known facts.
The length of detention to date
5. The sole ground of distinction now being taken by the defendant relates to the length of the detention to date. It is emphasised that the claimant has been detained only since the 25 of September 2009, a period of to date of only some six months, whereas Mr Ahmed had been in detention from 18 May 2008,a period of 19 months by the date of judgment . The point being taken is that the determination of how long it is reasonable for the Secretary of State to detain a person pending removal is necessarily fact sensitive ,that is to say fact specific to the particular case , and it does not follow therefore that the same conclusion as to whether a reasonable time has now expired must follow in the claimant's case as that reached by Langstaff J. in Ahmed because of the significant difference in the lengths of the detention to date in the respective cases . It is rightly pointed out that in Ahmed, as I have already observed, one of the factors which weighed heavily with the court in reaching its particular decision was that the length of detention to date was " already long " and " likely to become very long " ( Ahmed at para.66). It is submitted the same cannot be said in relation to the claimant's detention.
6. In my judgment this particular point of distinction is of no assistance to Secretary of State in the particular circumstances of this case. Of course I accept that the length of detention to date is a very pertinent factor to be taken into account in determining whether a reasonable period in which to detain a person pending removal has yet expired. But the reliance of the defendant upon this factor to justify continuing detention in this case where the detention to date has only been six months, ignores the quite distinct principle upon which detention may become unlawful even if a reasonable period has not yet expired, namely that identified by Dyson LJ in (I) as principle (iii) to which I have already referred . This is the principle that once it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, the detention becomes unlawful even if a reasonable period has not yet expired .For convenience I repeat the exposition of principle given by Dyson LJ ( at para.46):
"(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.."
7. In this case there is only one answer to the question "when does the Secretary of State expect to be able to deport? " (see again Mitting J. in (,MA,B and ME) at para 16) ,namely he does not know . The future timescale for removal in the case of this claimant remains wholly uncertain. At best on the findings of Langstaff J. it will be at the end of the calendar year .I repeat however his further observations at para 62 "that even this is uncertain and the probable date is likely to be later. The length of detention if it extends for that period is thus uncertain and very close to arbitrary". For the reasons I have already given, these observations apply to the present case with even greater force following on the recent cancellation of the visit by the Iraqi delegation.
8. Thus the short answer to the ground of resistance now being pursued by the Secretary of State is that notwithstanding a reasonable period of time may not yet have expired in this case because of the relatively short length of the detention to date, the detention has still become unlawful because in my judgment the Secretary of State has been unable to show that there is a reasonable prospect of effecting this claimant's removal within a reasonable time and it is now apparent that he will not be able to effect deportation within a reasonable time .
9. Mr Henderson has urged upon me that I should in any event in considering the length of the detention to date, have regard to the entirety of the separate periods
during which the claimant has suffered administrative detention so as to include the 16 months he was in detention prior to his being granted bail in 2006 as well as that of the more recent detention since bail was revoked in September 2009, thus making a total of 22 months which is on a par with the length to date in Ahmed. Mr Johnson for the defendant resists this submission on the grounds that the only length of detention relevant to the continuing legality of the current detention can be the length of this current detention since it is the reasonableness only of the current detention which is in issue in this claim.
10. It is however unnecessary for me to resolve this particular dispute since for the reasons given, whether the detention to date be 22 months or only 6 months, and whether it can be said a reasonable period has already expired or not, any continuing detention would be unlawful in my judgment given the wholly uncertain prospects for the future removal of the claimant.
The detention reviews
- I should add that in coming to this conclusion, I have of course had regard to the reasons put forward in the reviews of the claimant's detention carried out by the defendant purporting to justify the continuing detention. It is however of note that once the cancellation of the Iraqi visit became known, a further review was
carried out, dated yesterday the 29th of March 2010 ,and that in that review a very different set of proposals, recommending conditional release, was put forward by the case worker compared with those which had appeared in the previous periodic reviews .
- Those previous reviews for the purposes of the assessment of removal prospects following the failed removal of October, had relied heavily upon the repeated assurances being given by the Country Targeting Unit that the UKBA and the Foreign Office were "working closely" with the Iraq government to "iron out the issues which had led to some of the returnees being sent back" and they expected to carry out another flight. Emphasis also appears in those reviews upon what is said to be a high risk of the claimant absconding and a high risk of his committing further offences (although by the review of the 5th of March 2010 I note this particular risk has been downgraded to a "low" one). On the risk of absconding as justification for continuing detention, those earlier reviews refer to the claimant's "complete disregard for immigration law in the past" and "the failure to obey bail conditions".
- In contrast the proposals in the review dated yesterday, appear as follows : "An Iraqi delegation was due to visit UKBA in the week commencing 15 March 2010, which was intended to be the first step in securing the program of removals. However, following the collapse of the proposed visit by the Iraqi delegation, Mr Hussein's removal cannot, at present, be enforced, and indeed there is no time frame for removal to take place. As such, a submission to the Chief Executive is currently being drafted, proposing Mr Hussein be released on restrictions until such time as the circumstances are once again such that steps can be taken to affect his removal."
- The assessment in that review that the claimant's removal cannot at present be enforced and that " indeed there is no time frame for removal to take place" coincides with this court's assessment of what the current position is .When however the case worker's proposals for conditional release were put up to higher authority within the defendant's department ( to the Strategic Director of Criminality and Detention ") they were declined in a Decision dated today the 30th of March 2010, in the following terms :
"This subject poses a high risk of harm if released. He has a conviction for indecent assault, has allegedly had a knife with which he intended to harm a room mate, and been violent since being in detention. When bailed he has been non-compliant and failed on numerous occasions to report at a reporting centre as he was instructed to do. Had he not been non-compliant, he would have been removed to Iraq.Currently removal cannot take place, but discussions are taking place with a view to removals resuming. The release of him would inevitably result in an obstacle to removal. He has shown how determined he is to avoid return and been non-compliant while on bail. He has posed a risk to the public.Detention should be maintained and any application made to the courts resisted."
- Mr Johnson however very properly on behalf of the defendant does not seek to justify the legality of continuing detention on the grounds of the factors relating to the risks of absconding or of re-offending, or by reference to any so described "high risk of harm if released" so long as these can be accommodated by the imposition of appropriate conditions on release in similar way to those imposed in Ahmed. I refer again in this context to the observations of Langstaff J. in Ahmed paragraph 65. .Nor for present purposes of determining the legality of any continuing detention, does he seek to rely upon any past non compliance. His principal ground of resistance on behalf of the Secretary of State remains the point relating to the relatively short period of detention to date which I have already rejected given ,I repeat, on the evidence before me , the now wholly uncertain prospects for the future removal of the claimant .It is noteworthy that in this very recent Decision of today made on behalf of the defendant, no information is given to assist the court further on the likely time frame within which removal may take place . All that is said is that "current removal cannot take place" and "discussions are taking place with a view to removals resuming" which is of little assistance on the question of time frame.
- I record however that I am satisfied that any risks of absconding which I accept can be characterised as high, and any risk of re-offending can be properly and proportionately met by appropriate conditions on release and hence the presence of these factors cannot justify the continuing detention in this case. I leave it to the parties to come to terms as to what those conditions should be. If necessary the court can be asked to determine any outstanding issues on this question. I will however give the Secretary of State 14 days in order to ensure that any conditions may be properly implemented.
- For all these reasons I find that this claim succeeds on the limited issue before me ,which is whether any continued detention of the claimant as from today would be unlawful and which I so find to be the case, subject only to the Secretary of state having 14 days to put in place the appropriate conditions on release.
- 1. MR HENDERSON: My Lord, I am grateful. There are of course, as with Ahmed, outstanding issues as to past detention and the allegations of assault and Article 3 ill-treatment. We both propose that my Lord direct that proposals be made within 28 days as to the resolution of these issues. The reason for that request, and a similar direction has been made in Ahmed, is so that arrangements can be made to bring together all relevant claims.
- MR JUSTICE KING: Are there any other claims outstanding arising out of this failed removal of October?
- MR HENDERSON: I understand that there are other claims pending, though I am not aware of any currently lodged where the claimant is detained, but there may be other claims lodged in relation to detained claimants. There are also some who the Secretary of State has released and who are, as I understand it, instructing representatives with a view to bringing a private law claim.
- MR JUSTICE KING: Just tell me again, you are seeking –
- MR HENDERSON: Simply seeking 28 days to make proposals in relation to this claim to the court, but those proposals will seek to take account of what other claims are being brought.
- MR JUSTICE KING: Are these proposals to the court or proposals as between the parties?
- MR HENDERSON: Proposals to the court. In those 28 days we will seek to, if at all possible, agree a proposal to make to the court.
- MR JUSTICE KING: Well, I will certainly make a direction that the parties, within 28 days, put proposals before the court in relation to the outstanding aspects of this claim for judicial review, which encompasses the claim in relation to the alleged assault and battery.
- MR HENDERSON: I am grateful, my Lord.
- MR JUSTICE KING: That is the outstanding issue is it?
- MR HENDERSON: Yes. My only other application is for my costs in establishing the claim for the current unlawful detention. A similar order was made in Ahmed.
- MR JOHNSON: Yes, I do not resist that. I am just looking at the post-judgment discussion in Ahmed where, I think, certainly on the penultimate page of my transcript towards the bottom, the position was reached that the claimant would be entitled to their costs occasioned by the claim that continuing detention would be unlawful. I concede those costs. All other costs, of course, will be costs at large which will be resolved when the remaining issues are dealt with.
- MR JUSTICE KING: The claimant may have his costs against the defendant in relation to the costs of establishing that his continued detention is unlawful.
- MR JOHNSON: I am grateful.
- MR JUSTICE KING: I have a request, can I ask the claimant's counsel to have charge of drafting an order arising out of my judgment and to send it in to the court for approval.
- MR HENDERSON: Certainly.
- MR JUSTICE KING: Thank you. I should have said in any approved judgment, of course, in the light of my judgment, the claimant of course has permission and I have moved to the substantive hearing for the purpose of making the orders. I do not think I ever said that in the course of my judgment.
- MR JOHNSON: Yes, I had intended to concede permission anyway, but yes.
- MR JUSTICE KING: Right.