BCT v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Neil Garnham |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWHC 4265 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4012/2014 |
| Date | 18 December 2014 |
[2014] EWHC 4265 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Garnham QC
Case No: CO/4012/2014
Christopher Jacobs (instructed by Leigh Day) for the Claimant
John Paul Waite (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 11/12/14
Neil Garnham QC:
Introduction
At the commencement of the hearing of this application for judicial review, I granted the Claimant's request for an order for anonymity. In consequence, he will be known hereafter as "BCT".
BCT is a national of the Democratic Republic of Congo ("the DRC"). Between 16 January 2013 and 30 October 2014 he was held in immigration detention pursuant to the direction of the Secretary of State. He alleges that for some or all of that period his detention was unlawful. Central to this case is the relevance of the decision of Phillips J in P&R (DRC) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin) (hereafter " P (DRC)") to removals of foreign national offenders (FNOs) to the DRC.
The History
BCT arrived in the United Kingdom on 23 January 2005. On the 23 November 2005 he applied for indefinite leave to remain which was granted on 29 September 2009.
Since his arrival in this country, BCT has been found guilty of a number of criminal offences. On 12 February 2009 he was convicted of threatening behaviour. On 2 August 2010 he was convicted of an offence of possession of cannabis. On 14 June 2011 he was convicted of possession of a class A drug with intent to supply. On 25 October 2011 he was convicted of possession of class B and C drugs. On 17 November 2011 he was convicted of a failure to comply with a community order. On 23 January 2012 he was convicted of a second offence of failing to comply with a community order.
BCT was convicted of 2 counts of attempted theft on 27 March 2012 and sentenced to 25 days imprisonment. On 7 August 2012 he was convicted of robbery and sentenced to 20 months imprisonment. On 5 October 2012 the Claimant was notified of his liability for automatic detention. On 9 January 2013 the Claimant was told of the Secretary of State's intention to detain him upon completion of that sentence with a view to his deportation. As noted above, on 16 January 2013 the Claimant was detained under immigration powers.
The Claimant applied for asylum on 22 January 2013 and on 18 March 2013 was made the subject of a deportation order. His asylum claim was refused on 19 March and the deportation order served. The Claimant appealed against that deportation order, but on 6 August 2013 the appeal was refused. On 23 September the Claimant applied to revoke the deportation order. On 6 June 2014 the Secretary of State refused to do so.
These proceedings were commenced on 26 August. Permission to apply for judicial review was granted by Andrews J on 24 September. On 17 October 2014 the appeal against the refusal to revoke the deportation order was allowed on asylum and Article 3 ECHR grounds following the findings in P (DRC). The Secretary of State has been granted permission to appeal by the Upper Tribunal. On the 30 October the Claimant was released from detention.
It is also of note that in February 2014 the Secretary of State commissioned a Country Policy Bulletin on the DRC. That bulletin recorded a meeting on 15 January 2014 at the Home Office between an official from the Foreign & Commonwealth Office and the Directeur Central de la Chancellerie at the Direction General de Migration ("DGM"). The DGM is responsible for border control and is part of the Ministry of the interior in the DRC.
The Law
The fundamental legal principles that underlie this challenge are not in dispute.
The Secretary of State's power to detain pending removal is set out at Schedule 3 of the Immigration Act 1971 at paragraph 2(2):
" Where notice has been given 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."
That statutory power is not subject to any express limitations of time. However, since the decision of Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 certain implicit limitations have been recognised. Those limitations were summarised by Dyson LJ in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 as follows:
" (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 reasonable diligence and expedition to effect removal."
It is agreed that the burden is on the Secretary of State to prove the legality of detention throughout the period: R (I) v Secretary of State [2003] INLR 196 at [28], and that when considering the Hardial Singh factors, the Court acts as primary decision-maker in determining what period of detention is reasonable: LE (Jamaica) [2012] EWCA Civ 597 at [29].
Referring to his judgment in R (I) v Secretary of State, Lord Dyson said, at paragraph 104 in R (Lumba) v Secretary of State for the Home Department [2012] 1 A.C. 245, that 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."
As to the risk of absconding, in R (A) v. SSHD [2007] EWCA Civ 804 at [54] Toulson LJ said that:
" … where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made."
As to the risk of reoffending, he said at [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."
In Lumba, Lord Dyson said at [121]
" The risk of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place."
The competing arguments
Mr Christopher Jacobs, for the Claimant, argues that the detention of the Claimant has been unlawful, as contrary to the principles in Hardial Singh, since 16 January 2013 when he was first detained under immigration powers. In the alternative, he argues that the detention became unlawful on 9 December 2013 when Phillips J handed down his judgment in P (DRC). In the further alternative, Mr Jacobs argues that the detention was unlawful from 30 January 2014, the date on which the Secretary of State abandoned her appeal in P (DRC).
The basis of the alleged unlawfulness is the alleged inability of the Secretary of State to effect deportation within a reasonable period. That inability is said to flow from the conditions pertaining in DRC as recognised in P (DRC).
In his oral submissions, Mr Jacobs argued, albeit somewhat faintly, that from 5 July 2012, it has become impossible lawfully to remove foreign national offenders ("FNOs") to the DRC and therefore unlawful to detain them. 5 July 2012 was the date of an order of Collins J restraining removal of a criminal deportee to the DRC on the basis of the report of comments made by the DRC ambassador to the UK. Mr Jacobs argues that the Secretary of State...
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