England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3 February 2012

1. MRS JUSTICE DOBBS: The claimant, a national of Somaliland, challenges the defendant's decision to detain him pending his deportation to Somaliland.
2. The background to the case is that the claimant was granted indefinite leave to remain on 27 November 1996, having come into this country in 1989 with his mother and some of his siblings. He has a history of offending between 1995 and 2004, namely 10 convictions for 14 different offences, culminating importantly in convictions for serious firearm offences, resulting in a sentence of imprisonment of 6 1/2 years in 2004.
3. On 23 March 2007, the defendant decided to make a deportation order. The claimant was detained under the immigration powers on 6 August 2007. His appeal to the AIT was dismissed on 21 August 2007 and the deportation order was signed on 29 April 2008. He remained in custody throughout.
4. It transpires that he voluntarily returned to Somaliland on 14 April 2011, but still pursues his claim for unlawful detention. Although Mr Hawkin has said that it is a matter for the court, the period under challenge by the claimant is 10 April 2008 to 14 April 2011, a period of 3 years. The claimant contends that the detention was unreasonable, arbitrary and unlawful.
5. The claimant's submissions are that, despite the deportation order being served on 10 April 2008, the defendant had the intention to deport him on 23 March 2007 and by October 2007 had biodata and photographs; in other words, key details in order to deport him. Once his appeal rights had been exhausted on 4 February 2008, it is submitted that, following the signing of the deportation order, the subsequent detention was unlawful.
6. A point is made that despite the fact that the deportation order was signed in April 2008, the basic step referring the case to Rescue did not take place until 26 January 2009, a delay of over nine months. Mr Hawkin today in court points out that in fact contact was made with ReSCU on 26 January, but the information was not submitted until February.
7. Mr Hawkin has gone through the chronology of the events today in court and points to an entry on 22 June 2009, which shows that ReSCU stated there was no timescale for when the Somaliland authorities would make a decision, suggesting it could take four to eight weeks or longer. Going through the various monthly updates, the bail application and the notices of refusal of bail, the point is made that ReSCU had been requested to give regular updates and on nine occasions since that date in June 2009 had been unable to give specific information as to the progress of the claimant's case.
8. In relation to the objections to bail during this period, it is submitted that the Secretary of State's concerns about re-offending could have been met with suitable conditions for release, as the regular bail applications demonstrated that this claimant had the continued support of his wife and other family members in the UK. Reliance is placed particularly on a reference in the record of a phone call made on 1 April 2010 by the Criminal Casework Team to ReSCU, in which the latter indicated that there was no timescale when a decision would be reached by the authorities. The claimant places reliance on the case of R (on the application of MA & TT) v SSHD and SSFCA [2010] EWHC 2350 (Admin), in which it was held that, once it was apparent that there was no timescale within which an ETD would be issued, continuing detention became unlawful even if there was a risk of absconding. Reliance is also placed on the case of R (on the application of A & Ors) v Secretary of State for the Home Department [2008] EWHC 142 (Admin). It is submitted that if the claimant had not applied himself for FRS, he may well still be in detention.
9. The defendant submits that at all times the exercise of the power to detain remained lawful, because this was a case where there was a significant risk of absconding and re-offending which led to the refusal of bail by the Tribunal throughout the detention. Further, at all times there was some prospect or sufficient prospect of removal. The Secretary of State had the Hardial Singh principles well in mind because the Secretary of State clearly intended to deport this claimant and was taking steps to do so.

The Law

10. Article 5 of the European Convention on Human Rights provides that a person shall not be deprived of his liberty, save in prescribed cases and according with the law. Subsection (f) provides, inter alia, for the exception of detention in cases where action is being taken against the person with a view to deportation. Paragraphs 2(2) and (3) of schedule 3 to the Immigration Act 1971 give the necessary power to the Secretary of State to detain pending the making of a deportation order (subsection 2), and once the order has been made and pending removal (subsection 3).
11. There is a repository of cases on these provisions, starting with the well-known case of Hardial Singh, some of which have been included in the authorities bundle which the parties have sought to rely on. The most recent cases of R (on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 and the case of Walumba Lumba [2011] UKSC 12, the decision of the Supreme Court, cover the relevant principles which can be shortly stated: a) there is no requirement for imminent removal. "Pending" means until removal, and there is no requirement to show that removal will happen soon (see MH at paragraph 37); b) the test is whether there is some or a sufficient prospect of removal to justify detention (paragraph 64 of MH); c) when assessing "reasonable period", the following is relevant: i) there is no general limit on reasonable period, each case being fact sensitive. In Lumba, detention was for a period of 54 months, and in line with the individual facts of the case approach, the Supreme Court upheld the decision of the Court of Appeal not to find the detention unlawful on the basis of its duration alone; ii) the risk of absconding; iii) the risk of re-offending. Lumba re-affirmed the consistent approach of the Court of Appeal, namely that the risk of absconding and re-offending is always of paramount importance since if a person is permitted to abscond, the whole purpose of the statutory power would be defeated; iv) failure to repatriate voluntarily; v) failure to co-operate with the removal; and vi) other factors.

Discussion and Decision

12. Applying the principles to the facts of this case, the court has to assess whether the reasonable period allowed for operating the machinery of removal has been exceeded. The operative period as pleaded is from 10 April 2008 to 14 April 2011, namely three years. As already noted, the Court of Appeal has declined to lay down a general limit on what is reasonable and this, therefore, will depend on the surrounding circumstances.
13. The first question to consider, therefore, is the prospect of removal. As already noted, the test is whether there is some prospect or sufficient prospect of removal to warrant detention (paragraph 64 of MH). The case of A on which the claimant relies was considered in MH, where at paragraph 65 the Court of Appeal stated that they did not read the judgment of Mitting J in that case as laying down a legal requirement that, in order to maintain detention, the Secretary of State must be able to identify a finite time or period within which removal can reasonably be expected to be effective. This would place an unwarranted gloss on the established principles. The relevant passage reads as follows:

"64. There is little room for debate about the relevant legal principles, given Mr Fitzgerald's acceptance at this level of I (Afghanistan) and A (Somalia). Save in relation to the relevance of lack of co-operation, I see no material difference between the statements of principle in those two cases, but the approach of Toulson LJ in A (Somalia) seems to me to be particularly helpful when considering the issues raised here about the prospect of securing the claimant's removal to Somaliland. As Toulson LJ said, there must be a 'sufficient prospect' of removal to warrant continued detention, having regard to all the other circumstances of the case (see [32] above). What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case."

14. Before considering the prospect of removal, I deal with the first point relied on by the claimant, which is that it took nine months to refer the case to ReSCU. Implicit in the criticism is that this period of time is too long. This court is not in a position to look behind the scenes, save to say that, on the material before it, the main file in this case appears to have gone missing and subsequently a decision was taken to use the sub-file rather than hold matters up. But also, in any event, one has to take cognisance of the fact that, prior to the submission of the necessary completed documents, there is time needed for collation and preparation, bearing in mind this claimant is not the only detained person for whom such applications are being made. It is to be noted, as the defendant has observed, that this claimant was still insisting that he was from Somalia and indeed was offering to be removed to Somalia, and was doing so at this time, and that in itself caused some, albeit not great, delay in the papers being sent to the correct authorities.
15. Moreover, the defendant has drawn the court's attention to the case of R (on the application of Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549, a decision of the Court of Appeal Civil Division, where at paragraph 12 the court points out that the Hardial Singh principles emanate from basic administrative law, and that it is not enough in retrospect to find one part of the process took longer than it should have done, but that the claimant has to show that it was, in effect, so bad as to amount to illegality. That is what the courts have to be looking at. The claimant has failed to show that.
16. So far as the issue of whether there was some or sufficient prospect of removal, I have already alluded to the extracts in the ReSCU reports which the claimant relies on submitting that there was no timescales for his removal. Furthermore, Mr Hawkin in court today has submitted that there was no evidence of any efforts at all by the authorities to show that they were actually doing anything between the monthly ReSCU updates. As pointed out by counsel for the defendant, there was material there to show that ReSCU was approaching the authorities and indicating, because they had a priority list, what the priorities were. Given that there were to be monthly updates, it seems to me that the court can properly infer that there must have been some enquiries in between each monthly update.
17. In my judgment, in light of the fact that the papers had been submitted; that it was indicated that the policy in relation to Somalia and Somaliland referrals were being dealt with at a senior level; that the case was being monitored; that no concerns had been expressed about the application as obviously misplaced or inappropriate; that there was no suggestion that the Somaliland authorities were not willing to accept removals in appropriate cases; that there was no suggestion that there were problems with the route for removal; and no suggestion that insufficient biodata has been provided, it seems to me the modest test has been satisfied. Whilst not relying on this, it is to be noted by the very fact that the claimant has gone to Somaliland and was able to do so shows that there were no problems in that regard.
18. The fact by itself of three years' detention is not determinative, particularly in light of the other factors that the court has to take into consideration and in the light particularly of this claimant's antecedents, to which I turn. The reasons for refusing bail were risk of absconding, risk of re-offending and previous refusal to return voluntarily. As already noted, the first two factors, according to Lumba, are of paramount importance. Mr Hawkin took this court through some of the chronology to show that this claimant was offering to be repatriated, but repatriated to Somalia. The purpose of his drawing the court's attention to these entries was to counter the third reason given by the courts for refusing bail, namely previous refusal to return voluntarily. It is to be noted that no point has been taken by the Secretary of State on this aspect alleging previous non-cooperation, and therefore that is not something that this court troubles itself with.
19. The second objection was the risk of commission of further offences if released. It is quite clear from the claimant's record that there was a serious escalation in the claimant's offending, not only in terms of the number of offences but the seriousness of those offences. It is difficult to see realistically what measures could have been put in place to sufficiently reduce the risk, given that these offences were committed when he had the support of his wife and family and were also committed in the knowledge that the commission of these offences could seriously effect his chances of remaining in this country. Undeterred, he carried on.
20. He has a record of failing to comply with conditions of bail, namely failure to appear, and he has committed at least one offence on bail. Moreover, if there was a risk of absconding, there was an associated risk of further offences being committed as the claimant would have no access to support networks. In light of the claimant's most recent convictions, the risk to the public was patently greater. The risk of re-offending, particularly where the public could be at risk, is another very important factor in the assessment of the issue of the reasonableness of the period.
21. In my judgment, taking all these matters into consideration, it cannot be said that the claimant's detention was unreasonable, arbitrary or unlawful. It follows from that that this claim for judicial review fails.
22. MISS ANDERSON: My Lady, for the sake of form, I would ask for my costs. I fully appreciate that the claimant has the benefit of public funding and is no longer in the country, but I would just ask for a normal order where somebody is publicly funded.
23. MRS JUSTICE DOBBS: How do you want it expressed and I will wait to see what Mr Hawkin has to say?
24. MISS ANDERSON: It used to be a court order (Inaudible), it used to be not to be enforced without -- but I think it has changed now.
25. MRS JUSTICE DOBBS: The learned associate might have a better idea than any of us.

(Aside to the associate)

26. Mr Hawkin, there is still such an order in place. What I understand from the associate at the moment is we do not seem to have a copy to show that you are legally aided or funded or whatever the expression is.
27. MR HAWKIN: My Lady, funding was in place until in fact very late yesterday, after which my instructing solicitors put in place a conditional fee agreement. You will have noted from the preparations done this week that work was being done on the case earlier this week. You have had the authorities and so forth.
28. MRS JUSTICE DOBBS: I did not draw any conclusions from that.
29. MR HAWKIN: The position is that the claimant was contactable by email and telephone by my instructing solicitors.
30. MRS JUSTICE DOBBS: I understand that because they had instructions to continue.
31. MR HAWKIN: They had instructions to continue via (Inaudible) so I think it is just a normal order for costs that would follow in this case. I cannot resist.
32. MRS JUSTICE DOBBS: Thank you, that is very fair of you, Mr Hawkin. I do not have any costs schedule.
33. MISS ANDERSON: In fact, what is normally done, I do not know if that helps, is that there is just an order made subject to the usual public funding restrictions. That does not apply here, so the Secretary of State would just have to seek recovery. Can we say costs to be assessed if not agreed?
34. MRS JUSTICE DOBBS: Yes, all right. I make an order that the claimant is to pay --

(Aside to the associate)

35. It is a little more complicated than that, the associate kindly tells me. The effect of what he is saying is because he was legally aided -- up to yesterday, was it?
36. MR HAWKIN: Late yesterday afternoon.
37. MRS JUSTICE DOBBS: Yesterday, the order that would apply would apply so that is suspended, anything up until then, but the court makes an order in relation to the costs of today against the claimant. So we have a two-part order in a sense, one that is suspended up to yesterday and then the normal order for today. All right?
38. MR HAWKIN: My Lady, yes.
39. MRS JUSTICE DOBBS: The learned associate knows the terminology better than all of us. Thank you very much indeed, both you of you, for your submissions.