QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the High Court)
| OM (Algeria)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms K Olley (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 24 and 25 November and 18 December 2009
Crown Copyright ©
Mr C M G Ockelton :
"Re: Mr [OM] Algeria 22 December 1974
Thank you for your letter of 20 March 2008 and 19 May 2008 which has been taken as an application to revoke the deportation order against your client and for your representations to be considered as a fresh application in relation to Articles 3 & 8 of the European Convention on Human Rights (ECHR). I am sorry that you have not had an earlier reply.
Your application has not been considered by the Secretary of State personally, but by an official acting on her behalf.
Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) states that when a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content had not already been considered, and taken together with the previously considered material, likely to create a realistic prospect of success, notwithstanding its rejection.
Some points raised in your submissions were considered when the earlier claim was determined. They were dealt with in the appeal determination promulgated on 12 July 2007.
The remaining points raised in your submissions, taken together with the material previously considered in the determination, would not have created a realistic prospect of success."
"Your representations have been reconsidered on all the evidence available, but we are not prepared to reverse our decision of the 22 September 2006, which was upheld at appeal on 12 July 2007 and as we have decided that your submissions do not amount to a fresh claim under Section 92(4)(a) of the Nationality Immigration and Asylum Act 2002 you are not entitled to a right of appeal against the decision to revoke the deportation order from within the United Kingdom. Your client may however, appeal against this decision from outside the United Kingdom by virtue of Section 82 (2) (K) of the NIA 2002."
The Present Proceedings
"The effect of this certificate is that an appeal under section 82(1) against this immigration decision ('the new decision') may not be brought.
As your human rights claim has been certified under section 96(1) of the Nationality, Immigration and Asylum Act 2002 (as amended) you cannot appeal while you are in the United Kingdom."
Law and policy
(i)[T]he 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.
47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applied. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period had not yet expired.
"(i) At the outset there must be a non-application or a breach of the policy. To determine whether there has been a breach of policy, the policy is to be construed in the ordinary way;
(ii) Any non-application or breach of the policy must have caused the detention. Of itself the non-application or breach of policy cannot lead to a conclusion that detention is unlawful without an additional enquiry into whether this in fact led to the detention. That turns partly on the nature of the policy in issue: for example, there is a difference between a policy requiring the medical examination of detainees and the one at issue in this case which limits the detention of those with mental issues to very exceptional circumstances.
(iii) The non-application or a breach of policy causing the detention may give rise to ordinary public law remedies such as a declaration. Ordinarily, damages are not available in judicial review, but may be awarded if the court is satisfied that they would be awarded on private law principles ( in this case the tort of false imprisonment) or as a result of the Human Rights Act 1998 (in this case just satisfaction for breach of Article 5)."
55.1.2. Criminal Casework Directorate Cases
Cases concerning foreign national prisoners – dealt with by the Criminal Casework Directorate (CCD) - are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release. Thus, the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the "deportation criteria") are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.
The deportation criteria are:
For non-EEA nationals, those who have been convicted in the UK of a criminal offence and received:
a single sentence of 12 months [regardless of when it was passed]*; or
an aggregate of 2 or 3 sentences amounting to 12 months in total over the past five years; or
a custodial sentence of any length for a serious drugs offence (as defined in our policy) [since 1 August 2008]
*Save where the conviction is spent under the Rehabilitation of Offenders Act before a deportation order is signed.
NB: From 1st August 2008, non-EEA cases convicted and sentenced to 12 months imprisonment or more are liable to automatic deportation, and are also subject to CCD's detention policy as set out in this guidance.
Further details of the policy which applies to CCD cases is set out below.
55.1.3. Use of detention
Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable.
As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding should be weighed against the presumption in favour of temporary admission or temporary release in cases where the deportation criteria are met. In CCD cases concerning foreign national prisoners, if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner will be detained until either deportation occurs, the foreign national prisoner (FNP) wins their appeal against deportation (see 55.12.2. for decisions which we are challenging), bail is granted by the Asylum & Immigration Tribunal, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5 below). In looking at the types of factors which might make further detention unlawful, caseowners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list at 184.108.40.206, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.
The routine use of prison accommodation to hold detainees ended in January 2002 in line with the Government's strategy of detaining in dedicated removal centres. Nevertheless, the Government also made clear that it will always be necessary to hold small numbers of individual detainees in prison for reasons of security and control.
55.3.A. Decision to detain-CCD cases
As has been set out above, public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release may well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidenced by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. A list of those offences which UKBA considers to be more serious is set out below at 220.127.116.11.
More serious offences
A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Caseworkers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNP detention cases, for example, if the detainee is mentally ill or if there is a possibly disproportionate impact on any dependent child under the age of 18 from continued detention. Caseworkers are reminded that what constitutes a "reasonable period" for these purposes may last longer than in non-criminal cases, or in less serious criminal cases, particularly given the need to protect the public from serious criminals due for deportation.
Less serious offences
To help caseworkers to determine the point where it is no longer lawful to detain, a set of criteria are applied which seek to identify, in broad terms, the types of cases where continued detention is likely to become unlawful sooner rather than later by identifying those who pose the lowest risk to the public and the lowest risk of absconding. These provide guidance, but all the specific facts of each individual case still need to be assessed carefully by the caseworker. As explained above, where the person has been convicted of a serious offence, the risk of harm to the public through re-offending and risk of absconding are given substantial emphasis and weight. While these factors remain important in assessing whether detention is reasonably necessary where a person has been convicted of a less serious offence, they are given less emphasis than where the offence is more serious, when balanced against other relevant factors. Again, the types of other relevant factors include those normally considered in non-FNP detention cases, for example, whether the detainee is mentally ill or whether their release is vital to the welfare of child dependants.
55:10. Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:
[among the categories listed is:]
those suffering from serious medical conditions or the mentally ill – in CCD cases, please consult the specialist Mentally Disordered Offender Team.
The Claimant as a Mentally Ill Detainee
"A 35 year old man with a history of psychiatric illness dating back for several years. He also suffers from epilepsy, first diagnosed as a child in Algeria. He has a recent history of anxiety depression, with some biological symptoms, said to date back for the past three and a half years, however, the onset is unknown. The biological syndrome is also not wholly convincing.
Mr [OM] does seem to have a diagnosis of schizophrenia, said to have been reached in the UK hospital where he claims he was detained under the Mental Health Act 1983, the history is not presently substantiated."
"7. ... [Dr Spoto] recommended that Mr [OM]s Honiton (sc Homerton) Hospital records are requested and if they become available he would be glad to advise further. Chapter 55 of UKBA's Enforcement Guidance states that: "… The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:… those suffering from serious medical conditions or the mentally ill…" While this policy applies, the UK Border Agency judges that the high risk of re-offending, high risk of harm to the public and significant risk of absconding is justified for Mr [OM] to remain in detention. Dr Spoto's report assessment supports the view that he is currently being successfully treated in detention. While Dr Spoto has not been able to review the entire period of detention the information available to the UK Border Agency has shown that the has been successfully treated for schizophrenia during his detention and his condition would appear to have been stable or at least to have stabilised such as to make his detention appropriate to date despite his apparent mental illness.
8. Mr [OM]'s detention has been reviewed in accordance with the guidelines produced by the UK Border Agency, currently his detention is reviewed every 28 days in line with Criminal Casework Directorate policy. In SK Zimbabwe v SSHD  EWCA Civ 1204 promulgated on 6 November 2008 in paragraph 35 (iv) stated that "In the event of a legal challenge in any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled… Compliance with the Rules and the Manual would be an effective and practical means of doing so". This has been done in this case. While there is a presumption in favour of temporary release there are strong grounds for believing that Mr [OM] would not comply with the conditions of release. Mr [OM] has not produced satisfactory evidence of his identity or lawful basis to remain in the UK and he has obstructed the removal process by failing to co-operate with the application process to obtain an Emergency Travel Document.
9. Mr [OM]'s detention has been reviewed on a 28 day basis by Higher Executive Officer, Senior Executive Officer, Assistant Director, Deputy Director and Director levels of authorisation. It was judged by these levels of authority that Mr [OM] had no legal basis to remain in the United Kingdom and while he claims to have family ties in the United Kingdom, these ties have not been able to exert any influence over his offending behaviour or subsequent behaviour while in immigration detention. It was judged that he had taken every opportunity to exhaust the appeals system and was on a previous occasion on the cusp of removal until a Judicial Review was submitted. It was judged that based on his past history and reports of his behaviour while in detention demonstrated a high risk of re-offending and significant risk of harm to the public. It was judged that Mr [OM] had used a number of false or alias names in the past and this propensity towards deception and disregard for UK laws indicated a likely risk of absconding. He previously claimed he had entered the United Kingdom in 1999 by presenting a falsified French Identity card, but later claimed he had arrived some three to four years earlier. It was concluded that detention was prolonged by Mr [OM]'s refusal to comply with the Emergency Travel Documentation process, his refusal to comply on 1 February 2008 with a bio-data interview was in contradiction of advice from his legal representatives. The barriers to Mr [OM]'s removal, which had led to continued detention have been delays in the appeals process and obtaining travel documentation, which took far longer than anticipated due to delays in the Removals Group Documentation Unit submitting the application to the Algerian Embassy and the five month delay in having an Emergency Travel Document agreed by the Algerian Embassy.
10. Since 1 September 2008 it has been Mr [OM]'s efforts to use every opportunity to exhaust the appeals system that has prolonged his time in immigration detention and prevented his removal. From the evidence presented to the UK Border Agency and the associated risk factors Mr [OM] presents a high risk of reconviction, a high risk of harm and a risk of absconding all of which combine at the current time to outweigh the presumption to liberty. It has been concluded by the UK Border Agency that detention should be maintained.
11. If the judicial review finds favour with the SSHD, Mr [OM]'s ETD can be revalidated and he can be removed to Algeria within a reasonable timescale.
"In seeking to formulate the issue before us I posed the question, what is the reach of the power conferred by paragraph 2(2) of Schedule 3 to the Immigration Act 1971, and characterised it is a question of statutory construction. In light of all the matters I have canvassed I would summarise my conclusions on this issue as follows:
(i) Compliance with the Rules and Manual as such is not a condition precedent to a lawful detention pursuant to paragraph 2(2). Statute does not make it so (contrast s.34(1) of PACE, and the case of Roberts  1 WLR 662). Nor does the common law, or the law of the ECHR.
(ii) Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) requires that in every case the Hardial Singh principles should be complied with.
(iii) It is elementary that the power's exercise, being an act of the executive, is subject to the control of the courts, principally by way of judicial review. So much is also required by ECHR Article 5(4). The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles.
(iv) In the event of a legal challenge in any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled. However the law does not prescribe the form of such evidence. Compliance with the Rules and the Manual would be an effective and practical means of doing so. It is anyway the Secretary of State's duty so to comply. It is firmly to be expected that hereafter that will be conscientiously done."
The impact of BA
"92(1) A person may not appeal under s 82(1) against an immigration decision while he is within the United Kingdom unless his appeal is of a kind to which this section applies.
(4) This section also applies to an appeal against an immigration decision if the appellant-
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom ... ."
"shall also include, or be accompanied by, a statement which advises the person of - "
(a) his right of appeal and the statutory provision on which his right of appeal is based;
(b) whether or not such appeal may be brought while in the United Kingdom;
(c) the grounds on which such an appeal may be brought ... ."
"I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time".
Final Comment and Conclusion