Isse Mursal Botan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 24 March 2017 |
| Neutral Citation | [2017] EWHC 550 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6117/2016 |
| Date | 24 March 2017 |
[2017] EWHC 550 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/6117/2016
The Queen on the application of
Chris Buttler and Eleanor Mitchell (instructed by Duncan Lewis) for the Claimant
Gwion Lewis (instructed by the Government Legal Department) for the Defendant
Hearing date: 14 March 2017
Approved Judgment
The Claimant, who is a national of Somalia, seeks judicial review of his immigration detention by the Defendant, following his release from prison on 7 June 2013, pending deportation as a foreign criminal. At the date of the hearing on 14 March 2017, he had been in detention for three years nine months and one week.
The judicial review claim form issued on 2 December 2016 identified the decision under challenge as the Claimant's continuing detention from 7 June 2013, though the grounds only alleged unlawful detention from 8 June 2014 onwards.
In the week before the substantive hearing, the Claimant abandoned his challenge to the lawfulness of his continuing detention from 2 March 2017 onwards.
The sole ground of challenge to the detention in the remaining period, between 8 June 2014 and 2 March 2017, was that there was no realistic prospect of an enforced removal to Somalia, because of lack of co-operation by the Somalian authorities. Therefore continued detention was contrary to the third Hardial Singh principle because he should not have been detained once it became apparent that there was no realistic prospect of deporting him within a reasonable period.
At an oral hearing on 21 December 2016, bail was refused. Permission to apply for judicial review was granted and directions were given for the substantive judicial review hearing in respect of his ongoing detention, listed for 13 and 14 March 2017, but the lawfulness of the past detention was excluded from the scope of the hearing. Since the lawfulness of the past and ongoing detention raised the same factual and legal issues, which were narrow in scope, I consider that this separation involved an unnecessary duplication of scarce court resources and legal costs (both parties were funded from the public purse). It also caused undesirable delay. No directions were sought or made to progress the claim for past detention either on 21 December 2016 or thereafter. Therefore there would inevitably be a delay of many months following the hearing in March 2017 before the past detention claim could be determined. If liability was established, the quantum of damages would then have to be determined or agreed. In considering the question of delay, it was significant that the Defendant had stated that she would not deport him while the claim was ongoing.
In a series of communications between the end of February and 8 March 2017, the Defendant informed the Claimant that the United Kingdom's Memorandum of Understanding with Somalia ("the MOU") had been implemented and two enforced removals to Somalia were to resume. On 7 March 2017, the Defendant disclosed the MOU to the Claimant in response to his application dated 30 January 2017, due to be heard on 9 March 2017. On 8 March 2017 the Defendant stated that she intended to remove the Claimant on 26 March 2017, subject to the judicial review. At the hearing on 9 March 2017, the Claimant applied unsuccessfully for further disclosure relating to the enforced removals and also to adjourn the hearing on 13 and 14 March 2017. On 9 March 2017, the Claimant objected to my proposal that liability for past detention should also be heard on those dates, on the ground that counsel had not prepared the past detention aspect of the case. On 10 March 2017, the Claimant abandoned his challenge to the Claimant's ongoing detention, on the basis that the legal aid merits test was no longer met, and applied for the hearing on 13 and 14 March 2017 to be vacated in advance. I declined to vacate the date at such short notice. I asked the Claimant to provide an explanation for what had occurred, and for both parties to assist the court in giving further directions for the future conduct of the claim. I invited the Claimant to consider using the court time set aside on 14 March to hear the claim for past detention, in which case the Claimant's counsel could use 13 March as preparation time. I am grateful to the Claimant's counsel for agreeing to this proposal.
Facts
The Claimant is now aged 52 (DOB 1 July 1964). He arrived in the UK, aged 26, on 20 April 1990 and claimed asylum. On 4 July 1992 the Defendant granted the Claimant exceptional leave to remain ("ELR") for 12 months. On 20 February 1993 the Defendant refused the Claimant's asylum claim and granted him 12 months ELR. On 8 March 1994 the Defendant extended the Claimant's ELR for a further 3 years. On 23 December 1997 the Defendant extended the Claimant's ELR until 20 January 2000. On 20 January 2000 the Defendant granted the Claimant indefinite leave to remain in the UK.
The Claimant has a history of criminal offending:
a) On 23 March 1993 the Claimant was sentenced to a 12 month conditional discharge for an offence of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence.
b) On 28 June 1994 the Claimant was sentenced to pay £150 compensation and £50 costs after being convicted of two charges of damaging property.
c) On 20 January 1995 the Claimant was sentenced to a total of 4 months imprisonment and was disqualified from driving for 12 months for the following offences: (i) taking a conveyance without authority, (ii) using a vehicle while uninsured, (iii) failing to stop after an accident and (iv) driving a mechanically propelled vehicle while unfit through drink or drugs.
d) On 30 May 1996 the Claimant was sentenced to pay a £150 fine and £75 compensation for an offence of criminal damage.
e) On 12 June 1996 the Claimant was sentenced to pay a £100 fine, £20 compensation and £50 costs for an offence of obtaining a service by deception.
f) On 10 February 1997 the Claimant was sentenced to 30 days imprisonment in relation to two offences, namely, common assault and assaulting a constable.
g) On 4 August 1997 the Claimant was sentenced to 7 days conditional discharge relating to two offences of failing to surrender and 30 days imprisonment relating to an affray charge.
h) On 27 July 1998 the Claimant was sentenced to a £75 fine or 1 day imprisonment (deemed as served) regarding a theft.
i) On 21 October 1998 the Claimant was sentenced to a 12 month conditional discharge and ordered to pay £20 costs arising out of a conviction for being drunk and disorderly.
j) On 30 November 1998 the Claimant was sentenced to 1 week imprisonment for destroying or damaging property.
k) On 7 December 1998 for an offence of assault occasioning actual bodily harm the Claimant was sentenced to 3 months imprisonment.
l) On 13 August 2001 the Claimant was sentenced to an 18 month community rehabilitation order, 100 hours community order, £150 fine and £50 compensation for an offence of assault occasioning actual bodily harm.
m) On 17 September 2001 the Claimant was fined £30 in relation to an offence of being drunk and disorderly.
n) On 13 March 2003 the Claimant was fined £100 and ordered to pay £55 costs for an offence of being drunk and disorderly.
o) On 19 April 2004 the Claimant was fined £60 for an offence of being drunk and disorderly.
p) On 11 October 2004, for an offence of disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress, the Claimant was sentenced to a 6 month conditional discharge.
q) On 8 February 2005 the Claimant was fined £75 for an offence of disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress. In addition he was fined £25 for a breach of conditional discharge.
r) On 17 November 2005 the Claimant was convicted of rape and false imprisonment and sentenced to 12 years imprisonment. He was required to be registered on the Sex Offenders Register for an indefinite period. The sentence expiry date was 7 June 2017.
On 19 May 2009 the Defendant served a notice on the Claimant informing him of his liability to automatic deportation because of his convictions for rape and false imprisonment, and the sentence of 12 years imprisonment.
The Claimant was refused parole, and released from prison at the two-thirds point of his sentence, on 7 June 2013. He was then placed in immigration detention.
On 5 November 2013 the Defendant served a deportation order on the Claimant.
On 13 February 2014 the First-tier Tribunal ("FTT") dismissed the Claimant's appeal against the deportation order. The Claimant's appeal rights were exhausted by 25 March 2014.
Legal framework
A person who is not a British citizen is liable to deportation from the United Kingdom if " the Secretary of State deems his deportation to be conducive to the public good": s.3(5)(a) Immigration Act 1971 (" IA 1971").
For the purposes of s.3(5)(a) IA 1971, " the deportation of a foreign criminal is conducive to the public good": s.32(4) UK Borders Act 2007 ("UKBA 2007").
By s.32(1) UKBA 2007, " foreign criminal" means a person who is not a British citizen and has been convicted in the UK of a criminal offence for which he has been sentenced to 12 months imprisonment or more.
Under s.32(5) UKBA 2007, the Secretary of State " must make a deportation order in respect of a foreign criminal" subject to the exceptions in s.33 UKBA 2007.
S.33 UKBA 2007 sets out exceptions to the requirement to deport, which include cases in which removal under a deportation order would breach a person's...
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