ASD v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | David Pittaway |
| Judgment Date | 19 June 2017 |
| Neutral Citation | [2017] EWHC 1463 (Admin) |
| Date | 19 June 2017 |
| Docket Number | Case No: CO/818/2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2017] EWHC 1463 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Pittaway QC
Case No: CO/818/2016
Mr Nicholas Armstrong (instructed by Bindmans LLP) for the Claimant
Ms Julia Smyth and Ms Julie Anderson (instructed by GLD) for the Defendant
Hearing dates: 1 st March and 19 th May 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
David Pittaway QC
David Pittaway QC:
Introduction
The claimant is an Algerian national who has been resident in the UK since 1999 and was granted refugee status in 2001. He embarked on a criminal career, which culminated in him being convicted in February 2009 of attempting to contaminate goods offered for sale to the public for which he was sentenced to a total of nine years imprisonment. He was served with a notice of liability to deport on 7 September 2010. He was notified of the cessation of his refugee status on 28 December 2012. He did not challenge that decision. A deportation order was signed on 20 February 2013 and served on 1 March 2013. He did not appeal against the decision to deport him. He has been in detention since his release from the custodial part of his sentence of imprisonment on 16 January 2013, a period of 54 months.
The first attempt the claimant made to challenge his deportation was on 29 December 2015, almost three years after the deportation order had been made. The defendant rejected the claimant's further submissions and removal directions were set. The claimant applied for judicial review on 15 February 2016. The Upper Tribunal rejected the claimant's application for judicial review on 27 April 2016 and certified the claim as being totally without merit. He made further representations on 9 June 2016, which were subsequently rejected. His removal directions were re-set for 9 July 2016, later altered to 26 June 2016 because of the availability of a flight to Algiers. The removal was cancelled following a second judicial review, challenging the defendant's decision of 23 June 2016. Removal directions were re-set for after 16 September 2016. The Upper Tribunal ordered a stay and the directions were cancelled.
At the hearings before Thirlwall J on 6 and 14 October 2016 the claimant sought permission to challenge the lawfulness of his detention and applied for bail. She granted permission for judicial review but refused bail. She found that the claimant's risk of reoffending was high and whilst the risk of absconding was not a high risk she could not ignore it altogether. On 13 December 2016 Collins J quashed the exercise of the defendant's certification power in section 96 of the Nationality, Immigration and Asylum Act 2002; that decision is now subject to an appeal. The defendant, however, permitted a further immigration appeal, which was to be heard on 13 March 2017. Following late service of the claimant's expert evidence, the hearing was adjourned to 8 May and then subsequently adjourned to 20 June 2017. On 11 May 2017, the defendant made a further decision maintaining the claimant's detention.
This matter came before me on 1 March 2017 when I adjourned the substantive hearing to allow the hearing at the First-tier Tribunal on 13 March 2017 to take place. The adjourned hearing before me took place on 19 May 2017.
The Law
The detention powers set out in paragraph 2 (3) of schedule 3 of the Immigration Act 1971 are subject to the restraining principles set down in Hardial Singh [1984] 1 WLR 704, subsequently upheld in I v SSHD [2002] EWCA Civ 888 and Lumba & Mighty [2011] UKSC 12. They are that (a) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose, (b) the deportee may only be detained for a period that is reasonable in all the circumstances, (c) 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, and (d) the Secretary of State should act with reasonable diligence and expedition to effect removal.
The essential question for this court is whether there is now an insufficient prospect of removal to warrant continued detention. I have been referred to authorities which establish that there is no need for a finite time in which removal can reasonably be expected to be effected, Fardous v SSHD [2015] EWCA Civ 931, and to other authorities where judicial comments have been made as to the length of the detention, Bashir [2007] EWHC 3017, Wang [2009] EWHC 1578, MH v SSHD [2010] EWCA Civ 112 and DZ [2017] EWCA Civ 14. I have also been referred to authorities that make it clear that the risk of harm to the public and of absconding are relevant in the determination of that question, Lumba & Mighty [2011] UKSC 12, A v SSHD [2007] EWCA Civ 804.
I have been greatly assisted by Mr Armstrong's submissions on behalf of the claimant and by Ms Smyth and Ms Anderson who appeared, respectively, on the first and second hearing dates, on behalf of the defendant.
The Issues
The claimant's submission is that the period of detention, now 54 months, far exceeds what is a reasonable period in which to effect the claimant's removal. The defendant's submission is that the only barrier to the claimant's removal is the outcome of the claimant's appeal to the First-tier Tribunal. Balanced in the scales against release are the risks of serious harm to the public and absconding if the claimant is released.
The Facts
The claimant committed a series of serious offences in May 2008. He used a mixture of his own faeces, urine and chemicals such as bleach to contaminate goods sold to the public, including at Tesco and Morrisons. The sentencing judge said:
"There are in my view no mitigating circumstances whatsoever in relation to these offences. They were separate instances, pre-meditated and planned by you. Your action showed a callous disregard for public safety and you caused contamination of good amounting to over £700,000. Not only that, you caused considerable alarm and anxiety in the minds of those that were present. … You insisted on all the witnesses attending, despite the strength of the evidence against you, which was on any view, overwhelming. Of course, you have expressed no remorse; hardly surprising since you continue to deny [that you are] guilty. I find you to be arrogant and inflexible in your thinking. You are regarded as posing a high risk of harm to the public. You were the subject of a community order for earlier offences in 2007, and I quote directly from the pre-sentence report: "Managing his risk to the general public proved unmanageable. He has not engaged well with supervision and denies guilt in face of all the evidence. Based on his past behavior, attitude and his poor response to supervision the likelihood of re-offending is assessed as imminent. [His] risk of harm to the public is assessed as very high and he is currently managed at MATHA (sic) level 3 and is a critical public protection case." I have taken the view that the appropriate sentence in this case is one of an indeterminate nature; in other words you would be kept in prison until it is regarded as safe to release you. My hands, however, are tied."
I have been referred to the claimant's OASys report of 8 November 2016, part of which I have set out below. The report states that:
a. "it would seem more likely that his behaviour could be attributed to disordered aspects in his...
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