N (KENYA) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY |
| Judgment Date | 05 July 2004 |
| Neutral Citation | [2004] EWCA Civ 917 |
| Date | 05 July 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/0669 (C) |
[2004] EWCA Civ 917
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice May
C4/2004/0669 (C)
MISS F WEBBER (instructed by Lugmani Thompson & Partners, London N22) appeared on behalf of the Applicant
MISS S BROADFOOT (instructed by Treasury Solicitors) appeared on behalf of the Respondent
The appellant Mr N was born on 3rd July 1974. He is a citizen of Kenya. He arrived in the United Kingdom on 27th May 1994. He sought entry as a visitor. He was refused leave to enter, whereupon he claimed asylum and was released on temporary admission. In November 1994 he met a woman whom I shall refer to as B. He subsequently married her. She is a Dominican Citizen who has lived in the United Kingdom since adolescence. In April 1995 she gave birth to a son of whom the appellant is not the father. On 25th December 1995 the appellant was arrested for serious alleged offences. On 8th June 1996, B gave birth to the appellant's daughter.
On 27th June 1996 he was convicted of abduction, threat to kill, three counts of rape and false imprisonment. He was initially sentenced to 14 years' imprisonment. This was reduced to eleven years on appeal. The judge at his trial did not make a recommendation for deportation, expressing the view that she considered this to be a matter for the Secretary of State in possession of all relevant information.
While he was in prison, on 25th July 1996 he was refused asylum. There was then an extended period occupied on the asylum front by appeals to adjudicators and the Immigration Appeal Tribunal. The details of that do not matter for present purposes. But in August 1998 the Immigration Appeal Tribunal concluded that the appellant was a refugee but it has since been accepted that he has ceased to be a refugee because of substantially changed conditions in Kenya.
On 22nd May 1997 he and B were married. It turned out that this was in fact a bigamous marriage as she was then already married.
He continued to serve his prison sentence. In September 2002 the Secretary of State made a decision to deport him. On 26th September 2002 he appealed against this decision. He continued in prison for the offences for which he had been convicted and for which he had received an 11 year sentence of imprisonment until, on 13th May 2003, he was released from that prison sentence on licence under section 35 of the Criminal Justice Act 1991. But he remained in detention under paragraph 2 of Schedule 3 of the Immigration Act 1971 because he was subject to the decision by the Secretary of State for deportation. His appeal to an adjudicator against that decision proceeded. On 18th July 2003 the adjudicator granted him bail. On 18th September 2003 the adjudicator allowed his appeal against the deportation decision. On 3rd November 2003, the Secretary of State at that stage not having lodged an appeal against the adjudicator's decision, the adjudicator discharged his bail. There was some mix up about the Secretary of State's appeal. On 7th November 2003 the Secretary of State did seek to appeal against the adjudicator's decision to the Immigration Appeal Tribunal and that appeal proceeded. Permission to appeal was given in December 2003.
On 17th November 2003, the Home Office sent him a notice indicating that he was a person liable to be detained under paragraph 16 of Schedule 2 of the 1971 Immigration Act and imposed temporary admission restrictions. Those restrictions included that he must reside at an address in East London, which I will not give in this judgment —it is the address of his wife, B. The document also required that he should report to an immigration officer at Communications House, 210 Old Broad Street on 17th December and then monthly thereafter.
On 28th November 2003 the Home Office sent him a notice under the Immigration Acts indicating that he was required under paragraph 2 of Schedule 3 of the 1971 Immigration Act to report in person to Communications House within 24 hours and thereafter to report there once a week. He was required to continue to live at the address in East London and he was told that he must not change the address without the agreement of the Secretary of State.
There were difficulties in the neighbourhood at that address in East London and there were, so I understand, problems with the press. These related to the offences for which he had been convicted and the victim of those offences.
On 22nd December 2003, because of these problems, he moved from the address in East London to a probation hostel in Kent and a probation officer writing in January 2004 indicated that his move to Kent was motivated by public concerns that by living in the place in East London he was too close to the victim of his offence. Hence the probation service arranged to move him into the new borough. Mr N had no say in this decision because that was in the interest of the Home Office.
There was a hearing of the appeal by the Secretary of State to the Immigration Appeal Tribunal on 15th January 2003 presided over by the Vice President, Mr Ockelton. On that day Mr Ockelton heard submissions as to the appellant's bail and in the event he decided to refuse continuation of his bail for reasons which I will come to a little later in this judgment. The appellant has been in detention on the Isle of Sheppey, so I understand, ever since, in a relatively inaccessible place so far as visiting is concerned.
On 3rd February 2004 the Immigration Appeal Tribunal allowed the Secretary of State's appeal against the decision of the adjudicator in relation to the appellant's deportation.
In May 2004, B gave birth to a further child of whom the appellant is the father.
He sought to appeal against the decision of the Immigration Appeal Tribunal and the hearing of that application was to have been heard by this court on 18th June 2004. Unfortunately, only one day having been made available for the hearing of that appeal, the hearing had to be adjourned mainly because two important decisions of the House of Lords having a bearing on the appeal were published either on that very day or the immediately preceding day and the court at least felt unable to hear the appeal within the day in circumstances where we had not at that stage even had the opportunity of reading those two decisions carefully. There has been some difficulty in finding a date for the adjourned hearing of this appeal. The difficulties revolve around the availability of counsel for either party, it being understandably regarded as important on both sides that they should retain counsel who were briefed to appear on 18th June and counsel who have to a greater or lesser extent been involved in this case for a long time. I have yet to resolve finally the date when this appeal will be heard, but the candidates for the hearing are either 14th and 15th July, that is to say within about 10 days time, or alternatively some date in August and not later than the end of August.
The jurisdiction to detain a person in circumstances such as those of the appellant is to be found in paragraph 2 of Schedule 3 of the Immigration Act 1971. It is a jurisdiction that enables the Secretary of State to direct the detention of a person subject to a deportation decision unless he directs that that person be released pending further consideration of his case, or unless he is released on bail.
The jurisdiction to grant bail is contained in paragraph 3 of Schedule 3 of the 1971 Act which itself refers to paragraphs 29 to 33 of Schedule 2 of the 1971 Act. In short an adjudicator has powers to consider and if thought appropriate to grant bail; so does the Immigration Appeal Tribunal if an appellant appeals to that Tribunal; so, it is accepted, does this court have the powers of the Immigration Appeal Tribunal in this matter under Rule 52.10 of the Civil Procedure Rules and section 15 of the Administration of Justice Act.
The circumstances that are required to be considered are very similar to those under the Bail Act and may be found in paragraph 30(2) of Schedule 2 of the 1971 Act. Those include that an adjudicator and the Tribunal shall not be obliged to release an appellant if it appears to the adjudicator or the Tribunal as the case may be (a) that the appellant, having on any previous occasion been released on bail, has failed to comply with the conditions of any recognisance or bail bond entered into by him on that occasion.
The question of bail in the present case centres on the belief that there is a danger that, if this appellant is released he may abscond; and that was in substance the reason given by Mr Ockelton when he withdrew bail on...
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Omar v Secretary of State for the Home Department
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