MX & others v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Blake
Judgment Date30 September 2010
Neutral Citation[2010] EWHC 2397 (Admin)
Date30 September 2010
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/15292/2009

[2010] EWHC 2397 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: Mr Justice Blake

Case No: CO/15292/2009

Between
The Queen on the Application of MXL
and
KXS
and
ZLS (Children by MXL Their Litigation Friend)
Claimants
and
Secretary of State for the Home Department
Defendant

Stephanie Harrison (instructed by Bhatt Murphy Solicitors) for the Claimant

Jeremy Johnson (instructed by The Treasury Solicitors) for the Defendant

Hearing date 25 June 2010

Mr Justice Blake

Mr Justice Blake:

Introduction

1

This is an application for permission and if permission is granted the substantive hearing of a claim by MXL and her two minor children for relief in judicial review proceedings including a declaration and damages relating to immigration detention. The claimants are referred to by initials to protect the welfare of the children pursuant to previous orders of the court.

2

The principal claimant (hereafter the claimant) is a Jamaican national who entered the United Kingdom on 15 December 2001 and was granted leave to enter for six months. In 2003 she was granted leave to remain as the spouse of a British citizen. Her two children were born in May 2003 and February 2007 respectively and were accordingly six and two at the time of the events that form the subject of this application.

3

The claimant has a bad criminal record for offences of theft. Her first recorded conviction in February 2002 (within three months of her arrival) was for offence of shoplifting for which she received a community punishment order for 40 hours. In the next six years to the end of 2008 she was convicted of offences of theft on six separate occasions totalling some nineteen offences. She was dealt with by way of fines, community punishment orders, a community rehabilitation order and suspended sentences of imprisonment. In April 2007 two months after the birth of the third claimant she was arrested in connection with a more serious offence of conspiracy to steal. She was initially granted bail but in April 2008 was remanded in custody. On 16 February 2009 following her plea of guilty she was given a sentence of 24 months imprisonment for conspiracy to steal, that the trial judge described as:

“a serious case of wholesale organised crime involving special arrangements with teams of operatives in the store engaging in different roles, distraction techniques on the store staff and the actual handling of the items to be stolen. Methodology of the thefts was wholesale in the sense that whole lines of clothing were taken from shelves or hangers bundled into bin liners and into the boots of relevant cars in such numbers that on at least one occasion the boot of the car could not be closed.”

4

The time spent on remand and serving the balance of the sentence was the claimant's first experience of custody. She served her sentence at prisons within the London area and was due to be released on licence on 16 April 2009. However on 9 March 2009 she was served with a notice indicating that the defendant was contemplating her deportation. In a further letter written to her on 6 April 2009 she was told that it had been decided that she should be detained because she was likely to abscond and there was a risk of re-offending.

5

On 15 April she was told by an immigration officer that she would be detained pursuant to authority issued the previous day. The claimant was interviewed on 21 April in prison but on 22 April the decision to detain was maintained and on 23 April she was transferred to Yarlswood immigration detention centre near Bedford.

6

On 4 June a deportation order was served on her. Authority to continue to detain her was issued on 11 June 2009. She appealed against the deportation decision but the appeal was dismissed by the AIT on 24 August 2009. Preparations were being made to give effect to that removal to Jamaica when on 23 October 2009 Mr Justice Burnett granted an order for reconsideration of the deportation appeal. A reconsideration hearing was listed for 19 January 2010 but there had been a late change of representation and further information was needed and the appeal remains outstanding.

7

The claimant remained in immigration detention until 21 December 2009 when Mr Justice Bean granted her bail following the issue of these proceedings. She had previously been refused bail by immigration judges on at least two occasions.

8

In these proceedings the claimants challenge the detention from 16 April through to December 2009 on four broad grounds:—

i) The total period of detention in the light of all the circumstances of the case was excessive, and continued detention was unlawful as removal could not be effected within a reasonable period of time, particularly after the order for reconsideration had been made.

ii) The decisions to detain were procedurally flawed in that they were based on erroneous information and/or irrelevant considerations.

iii) The decision to detain and maintain detention was inconsistent with relevant policies adopted to regulate the exercise of the power to detain.

iv) The decision to detain was irrational and also in breach of Article 5 and Article 8 of the ECHR as it failed to take into account properly or at all the welfare of the children as a primary consideration, or accord the factors in favour of release the decisive weight they required.

The Power to Detain

9

The claimant had been sentenced to a term of at least 12 months imprisonment and was thus liable to the automatic deportation regime under the UK Borders Act 2007 s.32(5), subject to the s.33(2) exemption where deportation would breach a person's Convention rights.

10

Section 36 of the UK Borders Act 2007 provides:—

“(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State

a) While the Secretary of State considers whether Section 32(5) applies and

b) Where the Secretary of State thinks that Section 32(5) applies, pending the making of the deportation order.

(2) Where the deportation order is made in accordance with Section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 unless in the circumstances the Secretary of State thinks it inappropriate.”

11

Schedule 3 to the Immigration Act 1971 paragraph 2(3) provides:

“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).”

Sub-paragraph (1) refers to deportation following a recommendation by a criminal court, and sub–paragraph 2 to deportation following a notice of an immigration decision under s.105 Nationality Immigration and Asylum Act 2002.

12

The common law has identified limits to the exercise of this power to deport in principles derived from the case of R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. These principles have been summarised by Dyson LJ in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 at paragraph [46] 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, s/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.

13

The application of these principles to particular cases can be complex. What is a reasonable period depends upon all the material circumstances. Following the case law up to and including R (on the application of A) v the Secretary of State for the Home Department [2007] EWCA Civ 804 at [54–55] the following further propositions may be summarised:—

i) It is reasonable to detain someone who presents a risk of re-offending and a danger to the public for a longer period than someone who is not.

ii) Provided genuine efforts are made to effect removal, it may be reasonable to detain someone who represents a risk of absconding for a longer period than those where the risk is not a significant one.

iii) Nevertheless, there are cases where, whatever the gravity of conduct that justified the deportation in the first place, the prospects of removal are so remote that detention cannot be continued. The prospects of removal may become remote because necessary documentation cannot be provided, the receiving state refuses to accept the detainee, or human rights obligations prevent the detainee's removal to the only state to which he could be removed.

14

Lord Justice Dyson in R(I) v Secretary of State [2002] EWCA Civ 888 at [48] noted that it was not possible or desirable to produce an exhaustive list of all the circumstances that are relevant to the question of how long a period is reasonable, but continued:—

“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...

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