Dimitris Tsavdaris v Home Office
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 25 February 2014 |
| Neutral Citation | [2014] EWHC 440 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X04506 |
| Date | 25 February 2014 |
[2014] EWHC 440 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: HQ12X04506
Mr C. Jacobs (instructed by Howe & Co.) for the Claimant
Mr G. Lewis (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 10 th & 11 th February 2014
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.
The Claimant is a national of Greece who was detained by the Defendant between 28 th May and 5 th December 2006, pursuant to a deportation order made on 20 th March 2006, which was revoked on 7 th December 2006. He claims damages for false imprisonment, on the basis that, following the implementation of Directive 2004/38/EC by the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"), with effect from 30 th April 2006, he could only be removed from the UK "on imperative grounds of public security" which were never established in his case. The Defendant defends the claim on the basis that the deportation order of 20 th March 2006 was validly made under the Immigration (European Economic Area) Regulations 2000 ("the 2000 Regulations"), and its validity was continued under the 2006 Regulations.
By virtue of section 17(3) Crown Proceedings Act 1947 and CPR Pt 66, this civil claim has been brought against the Home Office, whereas the earlier judicial review proceedings were properly brought against the Secretary of State for the Home Department ("the Secretary of State"). Nothing turns on this distinction in this case.
History
The Claimant was born in Greece on 21 st January 1969. He has resided in the United Kingdom (UK) since 1994. In 1995 he began a relationship with Ms Andrea Lavor, a Brazilian national, and their son was born on 9 th December 1996. In January 2003, Ms Lavor was granted indefinite leave to remain in the UK.
The Claimant has been convicted of 20 criminal offences, the first in October 1999. On 2 nd July 2004, he was sentenced to 30 months imprisonment for an offence of permitting premises to be used for the supply of Class A drugs. On 14 th October 2005 he was convicted of theft from a motor vehicle and destruction of property, for which he was sentenced to 2 months imprisonment. He was released from prison on 16 th February 2005.
On 9 th November 2004, the Secretary of State wrote to him seeking reasons why he should not be deported from the UK because of his drugs offence. By letter dated 13 th April 2005, he was notified that the Secretary of State had decided to make a deportation order against him under section 3(5) Immigration Act 1971, on the grounds that he deemed it conducive to the public good to deport him from the UK. Reasons were given in the Defendant's letter of 26 th April 2005, which recorded that he had been resident in the UK for ten years. The application of Art. 8 ECHR to his family circumstances and the factors in paragraph 364 of the Immigration Rules were all considered.
The Claimant was also served with a formal 'Notice of Decision to Remove in compliance with the Immigration Notices Regulations 2003, made under section 105 Nationality Immigration and Asylum Act 2002 and taken under the European Economic Area Regulations 2000'. He was notified that he had a right of appeal against this decision, under section 82(1) Nationality Immigration and Asylum Act 2002, but he did not exercise it.
On 20 th March 2006, the Secretary of State made a deportation order under section 5 Immigration Act 1971. The order authorised his detention, pursuant to paragraph 2(3) of Schedule 3, until he was removed from the UK.
On 17 th May 2006, the Secretary of State set directions for the Claimant's removal to Greece on 31 st May 2006. The removal did not take place for administrative reasons.
The Claimant was detained in immigration detention, on 28 th May 2006.
In representations sent to the Defendant on 30 th May 2006, the Claimant challenged the deportation order and the removal directions, under Art. 8 ECHR, on the grounds that he had a 9 year old British son who could not be expected to resettle in Greece. On 30 th May 2006, the Greek Consulate asked the Defendant the reason for his deportation. The Claimant also applied for bail. No reference was made to the 2006 Regulations or the Directive by the Claimant.
In a letter to the Claimant dated 30 th May 2006, the Secretary of State refused the request to cancel the deportation and the removal directions. On 1 st June 2006, further removal directions were set for 10 th June 2006.
On 9 th June 2006, the Claimant applied for judicial review of the decision to remove him and for permission to appeal the deportation order out of time, relying inter alia upon his rights under Art. 3 and 8 ECHR.
The removal directions were cancelled upon receipt of the application to apply for judicial review.
On various dates, the Secretary of State reviewed the decision to detain the Claimant and refused to release him. No consideration was given to the effect of the 2006 Regulations.
On 18 th July 2006, Owen J. refused permission, stating that there was no realistic prospect of success for the reasons set out in the Secretary of State's Acknowledgment of Service (which did not include any reference to the 2006 Regulations).
The Claimant renewed his application for judicial review, and a date was fixed for an oral hearing on 8 th December 2006. In late November 2006, he instructed his current solicitors, who wrote to the Secretary of State on 1 st December 2006, contending that his deportation and detention were now unlawful, following the coming into force of the 2006 Regulations. They enclosed the decision of the Asylum and Immigration Tribunal (AIT) in MG & VC (Ireland) [2006] UKAIT 00053, which confirmed (at [16]) that the effect of the transitional provisions on appeals in paragraph 5 of Schedule 4 to the 2006 Regulations was that, after 29 th April 2006, deportation orders made under the 2000 Regulations were to be treated as if they had been made under the 2006 Regulations, and any appeal had to be determined by applying the 2006 Regulations.
On 4 th December 2006, the Claimant was unconditionally released by the Secretary of State. In a letter of 4 th December 2006, the Secretary of State informed the Claimant that he had decided not to remove him under reg. 21 of the 2006 Regulations. On 7 th December 2006, the deportation order was revoked.
At a hearing on 8 th December 2006, the application for permission was adjourned by Davis J to enable the Claimant to amend his grounds for judicial review. The order was made by consent, upon the Secretary of State "accepting that the Claimant is presently entitled to reside in the United Kingdom under the provisions of the Immigration (European Economic Area) Regulations 2006".
On or about 5 th December 2006, amended grounds for judicial review were filed. The amended grounds relied upon the 2006 Regulations for the first time, and sought declarations that the deportation order and the detention were unlawful, and that the Claimant was entitled to remain in the UK. There was also a claim for damages for unlawful detention.
The Secretary of State filed amended Summary Grounds for opposing the claim for judicial review, dated 27 th February 2007. Permission was granted on the amended grounds on 2 nd March 2007. Detailed Grounds of Resistance were filed on or about 30 th May 2007.
In the event, the judicial review claim was never determined because the requisite fees to continue the claim, following the grant of permission, were not paid. The case was closed by the court on 26 th June 2007.
Submissions
The Claimant submitted that, on a proper interpretation of the 2006 Regulations, the continuing lawfulness of the deportation order had to be assessed by the Secretary of State under the 2006 Regulations, once they came into force. It must have been obvious to the Secretary of State that the deportation order could no longer be implemented because the Claimant had resided in the UK for more than ten years and so he could only be deported on "imperative grounds of public security" which did not exist in his case. The deportation order ought to have been revoked in May 2006.
Applying the four principles established in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704, the Claimant was unlawfully detained in immigration detention from 28 th May 2006 because:
(1) the power to detain was not being used for the purpose of effecting any lawful deportation or removal;
(2) in the circumstances, no period of detention was reasonable;
(3) alternatively, even if the deportation order remained lawful after 29 th April 2006, it should have been readily apparent to the Secretary of State, that it could not be implemented within a reasonable time because a decision to remove him, post 29 th April 2006, would be unlawful;
(4) the Secretary of State had not acted with reasonable diligence and expedition either in considering the effect of the 2006 Regulations or revoking the deportation order.
The Defendant's response was that the sole purpose of paragraph 4 in Schedule 4 to the 2006 Regulations was to ensure the continued validity of deportation orders made under the 2000 Regulations. The 2006 Regulations did not impose any duty on the Secretary of State to re-consider the lawfulness of the deportation order previously made in respect of the Claimant. The deportation order remained in force and provided lawful authority to...
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CPC 4072 2013
...for those rights to apply needed to be fulfilled. I derive little assistance in the present context from Tsavdaris v Home Office [2014] EWHC 440 (QB) where Lang J’s remarks at [34] were concerning the non-retrospectivity of the operation of the Directive (not a domestic regulation implement......
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...reasons, and as a Supreme Court decision, I find in AA (Afghanistan) a corner piece of the legal jigsaw. 47 In Tsavdaris v Home Office [2014] EWHC 440 (QB) (a decision of Lang J on 25 February 2014) the claimant was a Greek national who had been in the United Kingdom since 1994. On 13 April......