B v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Black,Master of the Rolls |
| Judgment Date | 06 May 2015 |
| Neutral Citation | [2015] EWCA Civ 445 |
| Docket Number | Case No: T2/2014/2930 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 2015 |
T2/2014/2930
T3/2014/2932
[2015] EWCA Civ 445
THE MASTER OF THE ROLLS
Lord Justice Richards
and
Lady Justice Black
Case No: T2/2014/2930
T3/2014/2932
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
IRWIN J (CO/2512/2014)
AND
THE SPECIAL IMMIGRATION APPEALS COMMISSION
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison QC and Anthony Vaughan (instructed by Birnberg Peirce & Partners) for the Appellant
Robin Tam QC and Steven Gray (instructed by Government Legal Department) for the Secretary of State
Hearing date: 20 April 2015
Master of the Rolls:
Introduction
It is now well established that the statutory power vested in the Secretary of State for the Home Department to detain persons pending deportation can only be exercised for a period which is reasonable; and that, if before the expiry of a reasonable period, it becomes apparent that deportation cannot be effected within a reasonable period, the power may not lawfully be exercised: see R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 as approved by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245.
The appellant is very likely to be an Algerian national, but no definitive finding that he is an Algerian national has been possible because he refuses to provide details of his identity. He was detained in the United Kingdom pending deportation and then released on bail. He appealed against the notice of intention to deport him. On 13 February 2014, the Special Immigration Appeals Commission ("SIAC") decided that there was no reasonable prospect of removing him to Algeria and that, on an application of Hardial Singh principles, he could not lawfully be detained pending deportation.
The Secretary of State applied to strike out the appeal on the grounds that his refusal to provide details of his identity amounted to an abuse of process. In separate proceedings, the appellant sought permission to apply for judicial review of SIAC's decision to impose conditions on him after its decision of 13 February 2014 on the ground that, since there was no longer a power to detain him, by the same token there could no longer be a power to grant him bail.
On 1 July 2014, SIAC (Irwin J, UT Judge Peter Lane and Mr Haydon Warren-Gash) struck out the appeal and dismissed arguments that SIAC no longer had jurisdiction to grant bail. The application for judicial review was subsequently amended to cover that bail decision. On 14 August 2014, Irwin J (sitting in the Administrative Court) dismissed the application for judicial review without giving a further substantive judgment.
The appellant appeals against the refusal of the application for judicial review with the permission of Irwin J. His application for permission to appeal against SIAC's decision to strike out the appeal was referred to the full court by Richards LJ.
The facts
The appellant arrived in the United Kingdom illegally in 1993 and was arrested in 1998 in connection with his alleged involvement in the Algerian terrorist organisation known as the GIA. SIAC subsequently found that he was involved in 2000 in the procurement of equipment sent to Islamist fighters in Chechnya. He was detained under the Anti-Terrorism, Crime and Security Act 2001 between 2002 and 2005, latterly in Broadmoor Hospital.
On 11 August 2005, he was served with a notice of intention to deport him under section 3(5) and 5(1) of the Immigration Act 1971 ("the 1971 Act"). On 17 August 2005, he appealed to SIAC against the notice on grounds which included that there would be a real risk of a violation of article 3 of the European Convention on Human Rights ("the Convention") if he were returned to Algeria. On 11 April 2006, he was granted conditional bail by SIAC subject to suitable accommodation being found. No suitable accommodation was found so that the appellant remained in Broadmoor.
On 17 July 2006, SIAC commenced hearing the appeal, but adjourned it part heard when it became clear that he had provided a false name in his notice of appeal.
On 12 January 2007, SIAC made a direction pursuant to rule 39(1) of the Special Immigration Appeals Commission (Procedure) Rules 2003 ("the Rules") that the appellant should provide information as to his true identity, including his full name. He consented to provide a DNA sample, but otherwise refused to comply with the direction. On 19 July 2007, SIAC made a fresh order requiring him to provide the information. The order contained a penal notice.
On 30 July 2008, SIAC ruled that he was a risk to national security and that he would have the ability to continue to undertake terrorist-related activities. It said at para 9 of its closed judgment (which was incorporated into its open judgment):
"As the correspondence presently before the Commission discloses, a deadlock has prevailed in connection with the further hearing of this appeal. The deadlock has resulted from the failure and refusal of the appellant to comply with Orders of the Commission that he discloses his identity. There being an issue as to his identity, there has been a question as to whether he can be returned to Algeria or anywhere else. That being so, the hearing of the issue on safety on return has not proceeded. In considering whether Orders requiring the appellant to disclose his identity were appropriate the Commission has taken account of the psychiatric evidence which was placed before it. Having considered the evidence, it nevertheless has concluded that it was appropriate that an Order should be made. The Commission at present can only conclude that the appellant is deliberately refusing to disclose his identity in order to thwart the future progress of this appeal. As such, the Commission must state that it regards his conduct in this regard to be material to the risk he presently continues to present to national security. A deliberate refusal to respond to a lawful Order is a material failure capable of supporting the conclusion that he has not relinquished his commitment to terrorist causes and evidences a material refusal to accept the force of law within the United Kingdom. Further, the Commission is satisfied that his conduct is capable of amounting to an abuse of the due processes of law which he has invoked by pursuing this appeal."
SIAC adjourned the issue of the risk upon return to Algeria. In August 2009, the Secretary of State applied for a committal order on the grounds of the appellant's contempt in disobeying the order of 19 July 2007. On 26 November 2010, SIAC ordered that he be committed to prison for four months. At para 60 of its judgment, the Commission said:
"It is now common ground between the parties that the appellant is in contempt of the order of 19 July 2007. Having regard to all the evidence, in particular that of Drs Deeley and Payne, we find it proved beyond a reasonable doubt that the appellant has made a conscious and rational decision to refuse to comply with that order notwithstanding his mental health difficulties (putting them, for this purpose, at their highest, as described by Dr Deeley). Even if the appellant is telling the truth that he is concerned that revealing his identity and the other matters in directions 1 to 4 of the order might (in his view) put his family at risk in Algeria – notwithstanding that he is aware of and understands the respondent's undertaking to the Commission regarding restrictions on the use of that information – it is manifest that the appellant has deliberately and contumeliously refused to comply with the Commission's order. The question, accordingly, is what steps, if any, the Commission should take in the face of this contempt."
His appeals to the Court of Appeal and the Supreme Court against sentence were dismissed.
The appellant was released from prison on 4 April 2013 and was immediately admitted to Highgate Centre for Mental Health in London as his mental health had deteriorated while he was in prison. After a brief period on release at home, and a relaxation of his bail conditions, he was again admitted to hospital on 21 April 2013 as a compulsory patient under section 3 of the Mental Health Act 1983. He was discharged from hospital on 19 May 2014 and since then has been living at home subject to bail conditions.
By a judgment dated 13 February 2014, SIAC held, on an application of Hardial Singh principles, that the appellant could no longer be lawfully be detained. It concluded at para 51 that:
"….there is no reasonable prospect of removing the Appellant to Algeria and thus the ordinary legal basis for justified detention of B under the Immigration Acts has fallen away."
The appellant's bail conditions were further relaxed at a hearing before SIAC on 30 April 20In summary, the amended conditions included that:
(a) he must remain inside his residence, save between 9 am and midnight, when he must remain within an agreed boundary area;
(b) he was permitted to leave the agreed boundary area for the purpose of an authorised trip of which the Secretary of State was notified at least 24 hours in advance and to which he did not object, or of which the Commission approved despite the Secretary of State's objections;
(c) he was not permitted to attend any mosque save for the...
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