QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
ISSE MURSAL BOTAN
- and -
SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Gwion Lewis (instructed by the Government Legal Department) for the Defendant
Hearing date: 14 March 2017
Crown Copyright ©
Mrs Justice Lang :
a) On 23 March 1993 the Claimant was sentenced to a 12 month conditional discharge for an offence of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence.
b) On 28 June 1994 the Claimant was sentenced to pay £150 compensation and £50 costs after being convicted of two charges of damaging property.
c) On 20 January 1995 the Claimant was sentenced to a total of 4 months imprisonment and was disqualified from driving for 12 months for the following offences: (i) taking a conveyance without authority, (ii) using a vehicle while uninsured, (iii) failing to stop after an accident and (iv) driving a mechanically propelled vehicle while unfit through drink or drugs.
d) On 30 May 1996 the Claimant was sentenced to pay a £150 fine and £75 compensation for an offence of criminal damage.
e) On 12 June 1996 the Claimant was sentenced to pay a £100 fine, £20 compensation and £50 costs for an offence of obtaining a service by deception.
f) On 10 February 1997 the Claimant was sentenced to 30 days imprisonment in relation to two offences, namely, common assault and assaulting a constable.
g) On 4 August 1997 the Claimant was sentenced to 7 days conditional discharge relating to two offences of failing to surrender and 30 days imprisonment relating to an affray charge.
h) On 27 July 1998 the Claimant was sentenced to a £75 fine or 1 day imprisonment (deemed as served) regarding a theft.
i) On 21 October 1998 the Claimant was sentenced to a 12 month conditional discharge and ordered to pay £20 costs arising out of a conviction for being drunk and disorderly.
j) On 30 November 1998 the Claimant was sentenced to 1 week imprisonment for destroying or damaging property.
k) On 7 December 1998 for an offence of assault occasioning actual bodily harm the Claimant was sentenced to 3 months imprisonment.
l) On 13 August 2001 the Claimant was sentenced to an 18 month community rehabilitation order, 100 hours community order, £150 fine and £50 compensation for an offence of assault occasioning actual bodily harm.
m) On 17 September 2001 the Claimant was fined £30 in relation to an offence of being drunk and disorderly.
n) On 13 March 2003 the Claimant was fined £100 and ordered to pay £55 costs for an offence of being drunk and disorderly.
o) On 19 April 2004 the Claimant was fined £60 for an offence of being drunk and disorderly.
p) On 11 October 2004, for an offence of disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress, the Claimant was sentenced to a 6 month conditional discharge.
q) On 8 February 2005 the Claimant was fined £75 for an offence of disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress. In addition he was fined £25 for a breach of conditional discharge.
r) On 17 November 2005 the Claimant was convicted of rape and false imprisonment and sentenced to 12 years imprisonment. He was required to be registered on the Sex Offenders Register for an indefinite period. The sentence expiry date was 7 June 2017.
"(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 (1) or (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.)"
"36(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State
(a) while the Secretary of State considers whether section 32(5) applies, and
(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 . unless in the circumstances the Secretary of State thinks it inappropriate."
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Le Tam v Tai A Chau Detention Centre  AC 97, 111A-D . In my judgment, Mr Robb correctly submitted that the following four principles emerge:
i) The 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 a 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) applies. 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 has not yet expired."
"22. It is common ground that my statement in R (I) v Secretary of State for the Home Department  INLR 196, para 46 correctly encapsulates the principles "
"24. As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J. said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."
"103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in I's case, there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention."
"104. How long is a reasonable period? At para 48 of my judgment in I's case, I said:
"48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of 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 include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.""
"45. .a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
"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 over-simplistic. 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."
"52. The focus of this case is upon the period of detention and the administrative activity, or inactivity, that took place during this time. It is, however, necessary to stress that the assessment of what is a "reasonable" time needs to reflect the overall context. That context is of a foreign national, who has no right to remain in this jurisdiction, who has been convicted of serious criminal offences, in relation to whom the criminal court has made a recommendation for deportation and in respect of whom, as a matter of law, the Secretary of State is required to implement deportation unless the individual is seen to fall within one of the narrow statutory exceptions. Moreover the determination by the Secretary of State of whether, despite the strong policy and statutory impetus favouring deportation, such an individual should, exceptionally, be given leave to remain is a serious and important matter requiring proper and careful evaluation which, of necessity, will occupy a period of time. Any evaluation of that period of time, must, therefore, reflect the gravity of the decision that is to be taken.
53. Again, looking at aspects of reasonableness in this context, it will be the case that the individual has committed a serious criminal offence. The individual will however, only be in criminal detention because he has already served the full term of the sentence imposed by the criminal court. His past criminal offending, of itself, cannot be any justification for implementing or extending his time in immigration detention."
"21 .What is a "reasonable period" for effecting return in any particular case will depend on all the circumstances, but one of the factors which will be highly relevant will be the length of time that the detainee has already spent in detention. A belief that it may be possible to effect removal within a reasonable time of someone who has just been detained may be justified even if it is based on little more than a hope that a security situation in the receiving country may improve, . but it does not follow that the position will be the same if the person whose removal must be effected within a "reasonable time" has already been in detention for a long time: see paragraph 52 of MI and AO."
"The objective review by the court
42. In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision is necessarily ex post facto, the court does not take into account matters that subsequently occurred. As Sales J. explained in R (MH) v Secretary of State for the Home Department  EWHC 2506 (Admin), at paragraph 105:
"In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge."
His decision was upheld by this court:  EWCA Civ 1112."
The Defendant's detention policy
" 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."
"Substantial weight must 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 page 63, 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."
Decisions to detain
Factors other than removal to Somalia
"When she met you she was clearly lost. It was late night, you offered to show her the way home. You pushed her into a dark alley, you threatened her, as she recalls with a knife, although it is fair to say none was produced or found. You held her down forcibly, you caused her injury, you ripped her tights off and you raped her on the ground. It was brutal, it was squalid and it was every women's nightmare . She went on to say: "I became a victim almost overnight. I went from a girl who did not worry about things, to somebody who would burst into tears all the time.""
Removal to Somalia
i) Conditions in Somalia
ii) The period from 7 June 2013 to 7 June 2014
"On arrival into Mogadishu, the subject was interviewed by the authorities. He was asked did he want to come here, to which he answered NO, are you Voluntary, to which he answered NO, do you have anyone meeting you, to which he answered NO. The team were told that the British government do NOT have permission to return any NON voluntary detainees to this Country."
iii) Conclusions on the period 7 June 2013 to 7 June 2014
iv) The period from 8 June 2014 to 2 March 2017
"General Gafow, the Head of Immigration at Mogadishu Airport, visited the UK at the end of April and met with officials from a number of government departments, including the Home Office and FCO. Senior government officials have set up a 'task force' (comprising of representatives from the offices of the President, the Attorney General and Director of Immigration) with the purpose of reviewing all enforced removals identified for return to Mogadishu. The criteria that the 'task force' will use to make its decision and the planned frequency of those meetings has not yet been made known but enforced removals to Mogadishu are due to recommence shortly (9th June). Voluntary removals to Mogadishu (supported by a signed disclaimer) can proceed as normal."
"The Somali Director of Immigration and Naturalisation has notified the Home Office that while the Somali Council of Ministers has approved the principle of enforced returns, this now needs to be formally ratified by them. The impact of this development is that enforced removals to Mogadishu will be deferred for a period of 3 - 4 weeks to enable the Council of Ministers to formally agree and sanction the returns process. Voluntary returns to Mogadishu are not affected by this. Removal is therefore still a realistic prospect within a reasonable period of time "
"On 13 January 2016, an update received from the CST stating that "the situation with enforced returns remains very fluid and the current position is that we are unable to enforce returns to Mogadishu. Any enforced returns that were due to take place will now be cancelled.""
"A meeting is planned to take place in Mogadishu between HM Ambassador, the Somalia head of immigration and others later this week to discuss the resumption of returns. No timescales have been given for the resumption of enforced removals to Mogadishu."
The Authorising Officer added:
"I am aware enforced removals are currently paused, and that a meeting is being held to resolve this issue. It is hoped that removals will resume in the next week or so. It is therefore considered Mr Botan's removal will still take place in a reasonable time frame."
"A removal to Somalia is scheduled for 27 Feb and if that goes according to plan then we can expect further removal to take place. Those further removals will be prioritised by length of IS Detention and risk and I would expect Mr B to be near the top of the list. In the light of that, the seriousness of his offence and his offending history I do not feel it appropriate to submit a release referral at present as I still consider Mr B's removal to be likely within a reasonable period of time."
"Two removals are scheduled for later in the month (20th and 27th February) and if these take place and the MoU with Somalia is signed then we can expect further enforced removals to take place. Based on his length of detention and obvious risk of harm, I would expect Mr B to be one of the first to be removed so in the light of this I agree with the assessment and proposal."
"On 23 September 2016 CST informed me that: "RL (Removal Logistics) believe that this case is too contentious at this moment in time to attempt to return to Mogadishu. They have therefore decided to put this on hold for the time being until the process is embedded. Sorry! Another case has now been put forward."
On 5 October 2016 CSR informed me that: "the MOU that the UK signed with the Somali Government is due to be effected in November. However, the FCO has advised that due to forthcoming government elections in Somalia (the date is yet to be formally confirmed early/mid-November), enforced returns will not be attempted due to the political and public sensitivity in country. We'll await the input and advice from the FCO before such returns can proceed.""
"I am aware enforced removals are to resume in early 2017 and Mr Botan is on the priority list of cases to be targeted for removal at that time."
v) Conclusions on the period from 8 June 2014 to 2 March 2017