QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Feridon Rostami)
|- and –
|Secretary of State for the Home Department
Mr Sarabjit Singh (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 4 August 2009
Crown Copyright ©
MR JUSTICE FOSKETT:
The legal framework
"Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.
(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(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).
" The true position in my judgment is this. 'Pending' in paragraph 16 means no more than 'until'. The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that the removal must be 'pending', still less that it must be 'impending'. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (ie throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under para 21."
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
In addition, 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."
"The principles enunciated by Woolf J in the Hardial Singh case … are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain 'pending removal' their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time."
"46. There is no dispute as to the principles that fall to be applied in the present case ..:
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 that reasonable period, he should not seek to exercise the power of detention;
iv) The Secretary of State should act with the 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.
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."
"Given, as stated, that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period. True, the appellant could, by the date of the appeal hearing, have agreed to return voluntarily to Afghanistan. But, as already observed, that possibility only arose on the day before the hearing and it would surely not be right, given his unwillingness to go (and, indeed, his asylum claim) to subject him to an indeterminate period of further detention merely on that account." (My emphasis).
"41. As the appellant does not want to go back to Afghanistan, refuses to co-operate with the authorities to return voluntarily and has so far had no success in his asylum claims, there are, in my judgment, reasonable grounds for believing that, given the chance, he will probably seek to frustrate attempts to remove him under the deportation order before it is possible to carry it into effect. So, there is a real risk that, if he is now released from his present detention under paragraph 2(3) of schedule 3 to the Immigration Act 1971, he will probably abscond and never return to Afghanistan.
43. In my judgment, the Secretary of State has supplied a valid justification of the detention to date and of the need for it to continue for a longer period. In addition to the risk that the appellant will probably abscond if he is now released, the Secretary of State reasonably relies on continuing efforts on his behalf to operate the machinery for the appellant's removal."
"As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight."
21. The case of Mohamed Dahmani, reference CO/2947/97, was not, I am told, drawn to the attention of the Court of Appeal in the decision of I. The applicant had been detained for a period of some 19 months (a similar period to the detention in this case) under section 2(3) of schedule 3. I simply cite part of Keene J's judgment on page 4:
"Miss Giovannetti has also drawn my attention to the case of Lehchibi, a judgment handed down on 21st January by Mr Justice Latham, which refers to the factor of how far an applicant has contributed to his own misfortune in the sense of delaying his removal through his own lack of co-operation. It seems to me that that becomes relevant because it may mean that whatever steps the Home Secretary has taken, they become all the more reasonable because of the problems created by the applicant himself.
The position in the present case is that in my judgment the applicant has been responsible for a substantial part of the delay which has occurred in this case."
A little later on, page 5:
"In addition, as I have indicated, it seems to me that the responsibility for a large part of that 19 months of detention rests, at least partly if not largely, with the applicant himself because of the lack of co-operation to which I have referred earlier."
22. It seems to me I am entitled to approach the present case on this basis. Non-co-operation may not be decisive. It is, however, a relevant, possibly highly relevant, factor. If that were not so, the purpose of these provisions could deliberately be defeated by a determined applicant. It would be open to such a person simply to sit there and do nothing until return was no longer a realistic prospect. Such a person might well then disappear, having been released into the community. That person may, moreover, be somebody convicted of most serious criminal offences (as has the applicant in this case). It cannot have been Parliament's intention that the Act could be frustrated in that way.
"The likelihood or otherwise of the detainee absconding and/or re-offending seems to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee's removal abroad."
"… [he] has a long history of criminal offending. His convictions variously include two counts of indecent assault, robbery, burglary, assault on a police officer and a drugs offence. A number of his offences were committed whilst he was on bail or on licence. It seems that for at least part of the time he had become addicted to crack cocaine. In the circumstances he was, as it seems to me, properly assessed both as posing a high risk of offending and also as posing a high risk of absconding. Further, bail applications in the interim had been refused by immigration judges."
"76 … I think that the time has come in this particular case to say that enough is enough here. The relevant legal proceedings are likely to go on for a long time, so far as concerns Mr Abdi, potentially even running into years. It is time now, in my view, that Mr Abdi be released from detention and I so order. Rejecting, as I do, [the] argument that the court should ignore any period of time, whether in the past or hereafter to be spent in detention, whilst Mr Abdi is pursuing his appeal and any other related litigation, I do not think that it can now be said that Mr Abdi will be or is likely to be removed within a reasonable time; and I think that by now a reasonable period of time for detaining him has elapsed.
77 I am entitled, in reaching that conclusion, to have at least some regard to the already very long period of time he has already spent in detention: that is, the 30 months. As I have said, I have also borne in mind, in deciding this matter, the fact of his ongoing appeals, the risk of absconding and the risk of re-offending. All the same, as to this last point it should at least be borne in mind that the gravity of his criminality is of a lesser order than that in the Court of Appeal case of A . [His Counsel] also told me that not only is Mr Abdi of course now older but also he has, in the light of his long detention, broken himself of his drug addiction."
The sequence of events from October 2006
"Whether a further warning notice, charge or conviction would elicit the desired cooperation is uncertain, but removal should be pursued, particularly as there are a number of factors in this case which make release undesirable, including considerations of the passenger's own welfare. The passenger's apparent determination to thwart the documentation process is a strong argument for proceeding with further action under section 35 rather than the reverse.
The passenger's detention is permitted under Article 5 of ECHR as its purpose remains his removal from the United Kingdom …. The passenger may be detained on the grounds that he is likely to abscond if released (as evinced by his previous absconding to Ireland) and he has already given indication of a current wish to travel to Germany."
"Despite his difficult behaviour when detained I do not believe Mr Rostami is a threat to society at large. I am of the view that a further charge and possible conviction under section 35 is not likely to make his removal any more likely. I do not believe it would be in the public interest. As you know there are many nationals of Iran in similar circumstances as this man in that they do not wish to return to Iran who are either reporting whilst on TA or are absconders. Obviously if he were released we would instruct him to report regularly but if he failed to do so we would have no control over his movements and he is likely to abscond, perhaps even attempt to leave the UK to find his family in Greece. That would be part of the risk of releasing him.
We have been at this stage before, in June of this year, and I see no real change in this man's circumstances. I do not favour a third charge of section 35."
18. The personal history of the appellant is not seriously adverse to him. He is shown to have been otherwise than compliant with immigration rules and this has, most unusually, been made the subject of criminal prosecution. He has thus acquired a criminal record in connection with non-compliance in removal procedures, where otherwise there is no reason to regard the appellant as having criminal propensity or being in any way a danger to the public interest.
20. The appellant's previous criminal record we have already mentioned in detail. It has come about because of the appellant's failure to co-operate in his removal and for no other reason. This Tribunal is regularly called upon to deal with persons who do not co-operate, indeed who actively seek to frustrate removal. This has hitherto been in the context of applications where detained persons whose removal has not been brought about for various reasons, including the obstructiveness of the individuals concerned, seek their admission to bail. Although there is a strong principle whereby prolonged detention pending removal will not be given excessive weight in favour of an applicant where his own recalcitrance has contributed to the delays in removal, it is nevertheless recognised that where prompt removal appears unlikely and detention is prolonged there may come a time where there is no alternative but the granting of bail. This case represents a departure in that the respondent now seeks to criminalise the conduct of such uncooperative persons and to subject them to deportation procedures. This gives rise to certain considerations of principle which we have addressed more fully below.
23. The consideration that most forcefully detains us is that the entire process of deportation is founded only upon a clear policy of seeking to criminalise the appellant, as this has been described above, in his non-compliance with removal procedures. It might be said on the one hand that the appellant himself resorted to conduct that he must have known would be criminal, at least after his initial conditional discharge, and has been properly convicted of offences provided in law. Further, it might be added, although the criminal conduct does not relate directly to any offence against individuals or property, nor pose appreciable threat to the general public good, it remains very clearly in the public interest that persons with no right to remain in the United Kingdom should be susceptible of enforced removal. Deportation, as a means of removal, might be said to be appropriately invoked where lack of compliance with removal procedures has amounted to criminal conduct rendering a person liable to deportation and is an expedient which carries with it a further element of compulsion and deterrence.
24. As against that, it might well be felt that the resort to the extreme of deportation, merely as a means of enforcing removal where there is no criminal conduct other than lack of cooperation with removal, smacks of oppression. Not only that, but it has no potential effectiveness and will not foreseeably contribute to the success of attempts to remove the appellant. Indeed Mr McKenzie [the Home Office Presenting Officer] has been unable to explain any possible reason why deportation might be an effective recourse where removal thus far has failed. It might on this basis be perceived that the threat of deportation is designed solely to increase punitive consequences on the appellant for his refusal to comply without advancing in any way the likelihood of removal.
25. The circumstances of the appellant and of the decision to make a deportation order might well leave one with a feeling of some unease at a policy which criminalises persons in the position of the appellant, and with a firm sentiment that the manner of enforcement chosen by the respondent is unlikely to have any practical effect on removal. Nevertheless, the decision to issue a deportation order is one within the power of the respondent and we have concluded that it is not appropriate for a court, certainly one at this level, to be questioning the policy of resorting to this expedient. In addition, one must recognise that the issue of a deportation order, which carries with it certain consequences more serious than those attached to administrative removal, might be seen as providing a further incentive to co-operate and as providing an element of individual and general deterrence to a person fixed upon an attitude of determined obstructiveness as a means of evading removal. We therefore conclude that the presumption enacted has not been rebutted and that the deportation of the appellant is conducive to the public interest.
1. The AIT were entitled to conclude that there was no bar to your removal from the UK by reason of protection claims that have been previously dismissed and no fresh evidence relating to you or your future treatment in Iran has been presented.
2. It was in principle open to the defendant to deport you having failed to remove you because of your failure to cooperate with measures designed to promote your removal.
3. It is of concern that you have been prosecuted more than once for such non-cooperation and that has resulted in ever increasing custodial terms. You should seek proper legal advice as to these matters as it may be arguable that the offence cannot be committed more than once with respect to one attempted removal and/or if it can repeated prosecution is an abuse where your basis for non cooperation is the same.
"I propose to maintain detention in this case on the basis that Mr Rostami has demonstrated a high level of non-compliance with the documentation process and therefore could not be relied upon to comply with any conditions of release. He has previously been prosecuted under Section 35 twice and this has not acted as a deterrent therefore, if released it is submitted that Mr Rostami would seek to remain in the United Kingdom illegally in the future and would abscond. He has no further outstanding appeals as this was dismissed, and once appeal rights become exhausted we will seek to obtain a Deportation Order. He may then be a candidate for further prosecution under Section 35 however, with his track record of non-compliance and the fact that he has already been prosecuted on two occasion (sic) under Section 35 I fail to see how the 3rd prosecution under the same act (sic) will bear any deterrent upon him."
"I am content to authorise detention on the basis of the evidence above. Subject has refused to comply with the documentation process, and would be unlikely to comply with the conditions attached to release. There is also a risk of re-offending in order to frustrate the deportation process."
"I propose to maintain detention in this case on the basis that Mr Rostami has demonstrated a high level of non-compliance with the documentation process and therefore could not be relied upon to comply with any conditions of release. He has previously been prosecuted under Section 35 twice and this has not acted as a deterrent therefore, if released it is submitted that Mr Rostami would seek to remain in the United Kingdom illegally in the future and would abscond. He has no further outstanding appeals as this was dismissed, and he became ARE [appeal rights exhausted] on 09 January 2009. He may then be a candidate for further prosecution under Section 35. However, with his track record of non-compliance and the fact that he has already been prosecuted on two occasions under Section 35 …, I fail to see how the 3rd prosecution under the same Act will bear any deterrent upon him."
"Subject is a persistent immigration offender who, based on his background, is highly likely to abscond if released. There is also a risk that he will re-offend in order to frustrate removal and aid absconding. He has previously been prosecuted under s35. However, he is unlikely to return voluntarily to Iran meaning that removal is unlikely to be imminent. Release on restrictions may mitigate against the risk of absconding and we will refer to Chief Executive. However, unless this is agreed, I believe the presumption of liberty is outweighed by the risks detailed above."
"This subject continues not to comply with the ETD process. He has been convicted twice under Section 35. He now has an outstanding JR which needs to be resolved before he can be deported.
Based on the presumption to release, I have considered whether the continued detention of Feridon Rostami is lawful. In light of his risk of further offending and the harm that this may cause, as well as his likelihood of absconding, I consider these additional factors outweigh the presumption to release. I therefore think continued detention for a further 28 days is appropriate."