JM (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 15 July 2016 |
| Neutral Citation | [2016] EWHC 1773 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 July 2016 |
| Docket Number | Case No: CO/280/2016 |
[2016] EWHC 1773 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/280/2016
The Queen On the application of
Rory Dunlop (instructed by Duncan Lewis Solicitors) for the Claimant
Julie Anderson and Jack Anderson (instructed by Government Legal Department) for the Defendant
Hearing date: 5 th July 2016
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.
INTRODUCTION
In these judicial review proceedings JM (whose identity is subject to an anonymity order and will hereinafter be referred to as "the Claimant") seeks declaratory relief, damages for false imprisonment at common law, and damages for breach of Article 5(1)(f) of the ECHR, in relation to his detention pursuant to immigration powers between 5 th May 2013 and 25 th May 2016, excluding a period when he was detained pursuant to the sentence of the court in criminal proceedings.
This is yet another case concerning the automatic deportation regime enacted by Parliament in the UK Borders Act 2007 ("the 2007 Act"), and the application of well-established Hardial Singh principles. These cases typically turn on a close examination of the Defendant's decision making at all material times, and matters of minutiae. However, the instant case also raises, for the first time, an important point of principle concerning the true construction and application of section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ("the 2004 Act") to Zimbabwean nationals who refuse to consent to removal to their homeland. But before this point of principle is thrown into sharp relief, and then analysed, it is necessary to set out the core background.
ESSENTIAL FACTUAL BACKGROUND
The Claimant was born in Zimbabwe on 10 th October 1987. He has been HIV positive since birth. In 2002 it appears that his health deteriorated and he was advised by his aunt to come to the UK. On 8 th July 2002 he was given leave to enter as a visitor, claiming that he was coming on holiday. This was clearly untrue because his evident intention was to come for medical treatment. The Defendant has made no formal decision declaring the Claimant an illegal entrant, but were she to do so (and there would now be no point) her decision could not in my view be impugned.
In 2002 and 2003 the Claimant applied for leave to remain on the bases, respectively, that he was HIV positive and dependant on his aunt. These applications were refused and in 2005 an Immigration Judge dismissed his appeal.
It is, and always has been, an essential merits-based plank of the Claimant's case that were he returned to Zimbabwe he would likely die within 15 months without access to antiretroviral drugs. Similarly, the Defendant's constant riposte to this case is that the Claimant is not entitled to receive costly treatment in the UK at public expense, in circumstances where (a) he has no entitlement to be here, and (b) his condition is not such that removal or deportation to Zimbabwe currently engages Article 3 of the Convention. These matters are not, of course, for me to determine.
In 2006 the Claimant made an asylum application. This was refused by the Defendant and in due course his appeal was dismissed. The Claimant became "appeal rights exhausted" on 19 th October 2006, if not before.
Save for one excusable default, between 2006 and 2011 the Claimant complied with the reporting conditions attached to his temporary admission.
On 4 th May 2011 the Claimant was arrested for possession with intent to supply quantities of class A and class B drugs. On 20 th May, he said that he did not want to return to Zimbabwe. On 26 th August 2011, on his guilty pleas earlier entered, he was sentenced to a total of 4 years' imprisonment.
The automatic deportation regime prescribed by the 2007 Act was activated before the Claimant's custodial term came to an end on 5 th May 2013. Upon his release from prison, the Claimant was immediately detained pursuant to powers conferred by section 36(1) of the 2007 Act. On 11 th November 2013 the Defendant decided that the Claimant did not fall within any of the exceptions to that regime, and she served a deportation order requiring the Claimant to leave the UK. From that date the Claimant was detained pursuant to powers conferred by section 36(2) of the 2007 Act. On 26 th February 2014 the First-tier Tribunal ("F-tT") dismissed his appeal rejecting arguments that he was entitled to protection as a refugee or under Article 3 of the Convention. The Claimant became "appeal rights exhausted" on 10 th March 2014.
On 3 rd June 2014 the Claimant was offered the opportunity of an assisted return to Zimbabwe under the Facilitated Returns Scheme, but he declined it.
Given that the Claimant's passport had expired, his deportation to Zimbabwe predicated the grant to him by the Embassy of an Extraordinary Travel Document ("ETD"). It has been the policy of the Zimbabwean Government since 2002 that it will not grant ETDs to its nationals who do not wish to return. I will examine the evidence bearing on this point in due course.
The Defendant initiated the process of seeking to obtain an ETD for the Claimant. To that end, the Claimant needed to complete a bio-data form. As a preliminary step, on 1 st October 2014 the Claimant was interviewed by immigration officers. He told them that he did not wish to return to Zimbabwe, and that he would not complete the bio-data form. According to the Defendant's record:
"… the subject was polite and courteous throughout. … He declined to do so [provide the information to enable the form to be completed] – although after lengthy discussion he did state that he was getting close to making a decision about returning. I clearly explained to the subject that continued non-compliance could result in him being prosecuted."
On 3 rd November 2014 the Claimant was served with formal notice of the requirement to comply with the ETD process pursuant to section 35 of the 2004 Act. The requirement specified was that he attend an interview with immigration officers and complete a bio-data form. On 10 th November the Claimant attended an interview but otherwise refused to comply. On 15 th December he was arrested for non-compliance, but he later changed his mind and was not charged with any offence.
An application was made by the Defendant on the Claimant's behalf to the Zimbabwean Embassy for an ETD. On 28 th January 2015 the Claimant was provided with a disclaimer form in connection with the ETD process to confirm that he agreed to return to Zimbabwe. The Claimant ticked the box stating that he would now comply with the Zimbabwean ETD application. He left open the box which required him to "[s]tate that I will comply with the ETD progess [sic] as I am will [sic] to go home to Zimbabwe".
On 4 th February the Claimant was served with a further s.35 notice requiring him to attend an interview at the Embassy and, amongst other things, "to give your consent to return to Zimbabwe if requested to do so by an Embassy official".
On 11 th February the Claimant attended the Embassy. He was asked if he wanted to return to Zimbabwe and he replied that he did not. According to paragraph 17 of the Claimant's witness statement, he explained that he did not want to go, but if they forced him, he would.
On 21 st April 2015 the Claimant was charged with an offence under section 35 of the 2004 Act. The particulars of the offence were that the Claimant had failed to consent to return to Zimbabwe when requested by an Embassy official. On the Claimant's account, he was advised to plead guilty; and on 22 nd May 2015 he did so, and was sentenced to 9 months' imprisonment. During the currency of the Claimant's sentence, he was no longer detained under immigration powers, and he was transferred to prison.
On 13 th August 2015 the Defendant wrote to the Claimant asking whether he could confirm that he would comply in attending the Zimbabwean Embassy for the purpose of a face-to-face interview. On 21 st August the Claimant's case was discussed at the "section 35 Tasking Board meeting" and the "prosecutions' team" confirmed that they would prosecute "as many times as it takes before he complies".
On 6 th September 2015 the custodial part of the Claimant's sentence came to an end, and he was re-detained under immigration powers. The Claimant was made subject to licence conditions which required him to obtain the prior permission of the Probation service for any address at which he might live, until 6 th September 2016.
On 12 th November 2015 the Claimant applied for a bail address pursuant to section 4(1)(c) of the Immigration and Asylum Act 1999.
On 27 th November 2015 the Claimant submitted a request to see "on-site immigration". This stated, "I would like to give my consent to go to the Embassy". On 8 th December, however, the Claimant's solicitors wrote to explain that their client was willing to go to the Embassy, although this would be pointless because he had always made clear that he did not wish to return to Zimbabwe.
On 11 th January 2016 the Defendant served on the Claimant a further notice under section 35 of the 2004 Act. The notice required him to attend the Zimbabwean Embassy for interview on 20 th January, and amongst other things, "agree to return to Zimbabwe if asked as part of the requirements for re-documentation, by Embassy official". The legality of this request was then challenged by the Claimant's solicitors.
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