Mohamad Aziz Ibrahim & Aran Omer v Secretary of State for the Home Department

Hearing date: 9 th February 2010

Approved Judgment

Introduction

The claimants in both these claims are Iraqi nationals who were detained under Paragraph 2 of Schedule 3 of the Immigration Act 1971 ("the 1971 Act"). They had previously been sentenced to terms of imprisonment and so were foreign national prisoners ("FNPs"). Each contends that his detention following the date on which he would have been released on licence from his prison sentence was unlawful. Both applications come before the court as rolled-up permission hearings after a convoluted procedural history. They raise a common issue relating to the policy of the Secretary of State, withdrawn on 14 January 2008, that he would not take enforcement action against nationals who originate from countries which were 'active war zones'. Both applicants contend that at the time enforcement action was taken against them, Iraq was an active war zone. In consequence, the applicants submit that their detention was unlawful from beginning to end. They also submit that the policy of detaining FNPs was on a general basis unlawful because of the finding of Davis J in R (Abdi and others) v Secretary of State [2008] EWHC 3166 (Admin) that the Secretary of State applied an unlawful policy to the detention of FNPs. Mr Ibrahim submits that his detention was unlawful in whole, or in part, because it was never reasonable to detain him and because there was no prospect of removal within a reasonable time. Mr Omer submits that in his case, even if there was a power to detain, its exercise was irrational and founded upon a failure to consider all relevant matters. Additionally, even if the detention was initially lawful, he submits became unlawful because it was soon apparent that there was no reasonable prospect of removal.

At the outset of the hearing Miss Weston sought an anonymity order on behalf of Mr Omer. I rejected that application because there was no arguable factual or legal basis in support of it. It was advanced to avoid the possibility that Mr Omer's name might be reported in the context of an article mentioning his criminal convictions or critical of his efforts to remain in the United Kingdom. That provides no proper basis for according anonymity to a litigant in public law proceedings. No enforceable rights of Mr Omer are put at risk if he brings these proceedings in the normal way.

Mr Ibrahim arrived in the United Kingdom clandestinely on 11 February 2005. He unsuccessfully claimed asylum. His appeal against that decision was dismissed on 8 June 2005. On 16 October 2006 he was convicted of assault with intent to rob and sentenced to two years' imprisonment with a recommendation for deportation. The Secretary of State decided to make a deportation order on 23 July 2007. Mr Ibrahim was due to be released on licence on 3 August 2007 but his detention was maintained thereafter under Paragraph 2(1) of Schedule 3 of the 1971 Act. He appealed the decision to make a deportation order to the Asylum and Immigration Tribunal ("AIT"), but his appeal was dismissed on 18 September 2007. The argument that enforcement action was inconsistent with the 'active war zone' policy was not taken in the AIT. A deportation order was served on 11 October 2007. From that date Mr Ibrahim was detained under Paragraph 2(3) of Schedule 3 of the 1971 Act. He was released from custody on 23 September 2008, bail having been granted in these judicial review proceedings a few days earlier. The proceedings had been issued on 5 August 2008. The total period of detention was 14 months and 11 days.

Mr Omer says that he arrived clandestinely in the United Kingdom on 2 October 2002 and claimed asylum a week later. His claim was refused but he was granted exceptional leave to remain for four years from 6 December 2002. On 23 December 2004 he was convicted of using threatening behaviour and sentenced to a 50 hour community punishment order. On 13 June 2006 he pleaded guilty at Leeds Magistrates in respect of offences of battery, burglary and carrying a bladed article, committed over a period of several months from the Autumn of 2005. He was sentenced to 12 months' imprisonment at the Crown Court, to where he had been committed, on 8 August 2006. There was no recommendation for deportation. On the day he was due for release from custody, 6 December 2006, Mr Omer was detained under Paragraph 2(2) of Schedule 3 having been served with a notice of intention to deport. He appealed that decision to the AIT but his appeal was dismissed on 30 March 2007. He too did not rely upon the 'active war zone' policy. He sought a review of that decision but his application was dismissed by the Senior Immigration Judge. His appeal rights thus because exhausted in May 2007. After a number of unsuccessful applications to the AIT, Mr Omer was eventually granted bail on 8 August 2008. These proceedings were issued on 4 August 2008. Mr Omer was detained in total for 20 months and 2 days.

The Legal Framework

The statutory provisions governing immigration detention and deportation action are found in the 1971 Act. Liability to deportation arises under sections 3(5) and (6) together with section 5. They provide:

"3(5) A person who is not a British citizen is liable to deportation from the United Kingdom if –

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) another person to whose family he belongs is or has been ordered to be deported.

(6) Without prejudice to the operation of subsection (5) above, a person who is not a [British citizen] shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.

…

5(1) Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force."

The powers of detention material for the purposes of these applications are found in Schedule 3 of the 1971 Act:

"1.—(1) Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either—

(a) a country of which he is a national or citizen; or

(b) a country or territory to which there is reason to believe that he will be admitted.

….

2. (1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary or State directs him to be released pending further consideration of his case or he is released on bail.

(1A) Where –

(a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and

(b) he appeals against his conviction or against that recommendation,

the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.

(2) Where notice has been given to a person 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.

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph ( 1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."

Thus an FNP who has been the subject of a recommendation for deportation by the sentencing court will be detained under the authority of Paragraph 2(1) of Schedule 3 until a deportation order is made unless the Secretary of State, or a Court considering a criminal appeal, directs his release. If a deportation order is made, the power to detain is found in Paragraph 2(3) of Schedule 3. An individual (whether a FNP or not) who is served with a notice of a decision to make a deportation order may be detained under Paragraph 2(2) of Schedule 3 until a deportation order is made. Thereafter detention may be maintained pursuant the power contained in Paragraph 2(3) of Schedule 3.

It follows that a distinction must be drawn between detention under paragraph 2(1), on the one hand, and paragraphs 2(2) and 2(3), on the other. Such a distinction was noted by the Court of Appeal in R (WL...