QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NAB||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MR J AUBURN (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"Mr NAB has found himself becoming increasingly depressed over the past few months with associated psychosomatic symptoms due to a variety of reasons, the main one being his length of stay in detention and him facing some uncertainty about his future. To add, he came to the UK with a view of bettering his lifestyle and to enjoy the freedom and socialisation and sports activities, ie football, that this country offers. Him now being in detention has now challenged his hopes for his future which is further compounding his low mood. Since being in Dover he has been commenced on the antidepressant Fluoxetine 20 milligrams daily but has yet to see the benefit of this treatment."
"Mr NAB is an illegal entrant and a failed asylum seeker who has exhausted all rights of appeal and is now the subject of a deportation order. He has previously failed to comply with reporting restrictions and has been consistently non-compliant with the ETD process. He is fully aware that we intend to deport him and as such the risk of him absconding is considered to be high. The only remaining barrier to [the claimant]'s removal is an ETD. Unfortunately the Iranian Embassy despite confirming him is an Iranian nation (sic) will not issue an ETD unless he signs a disclaimer and states that he wishes to return to Iran. Under these circumstances, unless [JAN] signs a disclaimer (and the evidence suggests that he will not) removal cannot be expected within a reasonable timescale. Nevertheless the onus is on the claimant to leave the UK once their appeal rights have been exhausted and by refusing to sign a disclaimer [JAN] is deliberately frustrating his own removal. In the light of the seriousness of his offence, his poor immigration history, his continued non-compliance and the high risk of him absconding, continued detention is considered both appropriate and proportionate to effect removal. This case has been considered under the current detention criteria."
"I agree with the previous assessment that this subject is contributing to his own detention by failing to comply with our attempts to document him. It is a requirement that subjects are willing to go to the Iranian Embassy to sign a disclaimer there. Subject is knowingly prolonging their own detention (sic) and in light of this, I believe that continued detention is proportionate. Maintain detention."
"On 26 June 2008 you were offered an application for removal under Operation Asarina which you declined to accept. If you wish to assist us in progressing your case and potentially reducing the time you spend in detention prior to removal, please sign the disclaimer and co-operate with the immigration officers at the removal centre and the officials at the Iranian Embassy. You were advised that your continued failure to co-operate with the Emergency Travel Documentation (ETD) process is a significant factor in the decision to maintain detention. You should also be aware that case law in this area has made clear that continued failure to co-operate will remain a significant factor in deciding whether to maintain detention or grant bail in future."
The letter goes on, urging him to co-operate.
"On 13 October 2008 a letter was received from Mr NAB stating that he is willing to return to Iran as soon as the [sic] receives compensation from the British Government."
"I agree that continued detention is appropriate in this case on the grounds of public protection and also on the ground of absconding risk. This man now holds all the cards in that he refuses to comply with signing an Iranian declaration of intent to travel to Iran. This prevents the Iranians issuing the already agreed ETD. It is unlikely that [N] will change his approach without motivation. I think that we need to interview him assertively as to his expectations, clearly positioning him on the likelihood of continued detention. I also wonder whether Special Ops may be able to gently push the Iranians on issuing this ETD without a declaration being signed -- they have, after all, acknowledged that he is Iranian. I copy this review to Special Ops ...
? maintain detention."
"I agree that Mr NAB offending and immigration records and his history of non-compliance history together outweigh the presumption of liberty. We must try an assertive interview on a regular basis in order to persuade him to sign the disclaimer."
"I feel that section 35 should now be progressed".
"Mr NAB continues to refuse to co-operate/sign a disclaimer which would enable removal. The case owner will now arrange for more assertive interviews to be carried out. Section 35 action should also not be ruled out together with a possible referral to the IDT team if this case meets their criteria."
"Mr NAB continues to refuse to co-operate/sign a disclaimer which would enable removal from the UK. There is no indication that the case owner has yet arranged for more assertive interviews to be carried out. This will be chased up. It is also unclear whether section 35 action has been further considered or whether possible referral to the IDT team has also been considered if the case meets their criteria. Both issues will also be chased up."
"An interview was requested on 22 July 2009 to see if [Mr N] could be convinced to return to Iran. This interview was re-requested on 3 September 2009. Progression of this case is now in the hands of [Mr N]. The only barrier to his removal is his own refusal to sign a disclaimer at the Iranian Embassy. He has been informed on numerous occasions by immigration officers and by visiting caseworkers that he is only prolonging his own time spent in detention."
"I agree with the proposal to maintain detention. The case has been assessed under current guidance and is deemed unsuitable for rigorous contact management due to the high risk of absconding and re-offending to support himself financially and the high risk of harm to the public if released. The only barrier to his removal is his own refusal to sign a disclaimer at the Iranian Embassy which demonstrates his determination to frustrate the removal process. Should he sign the required disclaimer his removal could be effected within a reasonable timescale.
? maintain detention."
"I have reviewed the case for Mr NAB and agree that, based on the presumption to release, he should remain in tension. His continued detention is a direct result of his behaviour and failure to sign a disclaimer."
"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, there is 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."
Then paragraph 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 submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is oversimplistic. 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 detaining him pending his removal or departure."
"I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."