R Abdi Abdilahi Ismail v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMrs Justice Lang DBE,Mrs Justice Lang
Judgment Date13 December 2013
Neutral Citation[2013] EWHC 3921 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date13 December 2013
Docket NumberCase No: CO/10213/2013

[2013] EWHC 3921 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mrs Justice Lang DBE

Case No: CO/10213/2013

Between:
The Queen on the Application of Abdi Abdilahi Ismail
Claimant
and
Secretary of State for the Home Department
Defendant

G Ó Ceallaigh (instructed by Leigh Day) for the Claimant

J Thelen (instructed by The Treasury Solicitor) for the Defendant

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.

Mrs Justice Lang DBE Mrs Justice Lang
1

The Claimant, a national of Somalia, applies for judicial review of the Defendant's decision to detain him in immigration detention with a view to deportation under section 32, UK Borders Act 2007, following his conviction for assault. He seeks a declaration that his ongoing detention is unlawful and that his rights under Art. 5 ECHR have been breached. He has applied for a mandatory order for his release, and damages for false imprisonment.

2

The grounds of his application are:

i) his detention is in breach of the Hardial Singh principles;

ii) the Secretary of State has failed to consider the best interests of the Claimant's children, under her own policy and under section 55;

iii) his detention is in breach of Art. 5 ECHR.

3

On 3 rd September 2013, permission was granted on grounds 1 and 3, but refused on ground 2. A renewed application for permission on ground 2 was listed with the substantive hearing, but not pursued.

Statutory framework

4

Under UK Borders Act 2007, section 32(5), the Secretary of State must deport a person who is not a British citizen and who is not exempt, following conviction for a criminal offence for which he has been sentenced to 12 months imprisonment or more. Section 33 sets out exceptions to the requirement to deport, which include cases in which removal under a deportation order would breach a person's rights under the European Convention on Human Rights (ECHR) or the Refugee Convention or under EU law.

5

By section 36(1), a person who has served a period of imprisonment may be detained while the Secretary of State considers whether section 32(5) applies, and where the Secretary of State thinks that section 32(5) does apply, pending the making of the deportation order.

6

By virtue of the Human Rights Act 1998, s.6(1), it is unlawful for the Defendant to act in a way which is incompatible with a Convention right.

7

Article 5 ECHR provides that everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the circumstances specified in Article 5(1)(a) — (f) and in accordance with a procedure prescribed by law. Article 5(1)(f) states that a person may be arrested or detained to prevent his effecting an unauthorised entry into the country, or where action is being taken against them with a view to deportation or extradition.

Caselaw

8

In order to be lawful, immigration detention must be for one of the statutory purposes for which the power to detain is given, and it must accord with the limitations implied by domestic and European Court of Human Rights ("ECtHR") case law.

9

The ECtHR has held that, in order for detention to be lawful under Art. 5, deportation proceedings must be pursued with "due diligence", including pursuing the required documentation to effect deportation: Mikolenko v Estonia App. No. 10664/05; Massoud v Malta App. No. 24340/08.

10

The burden is on the Defendant to justify the legality of the detention ( R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, per Lord Dyson at [44]).

11

The power to detain is subject to the limitations set out in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196, Dyson LJ described the Hardial Singh principles in the following terms:

"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in re Hardial Singh [1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Le Tam v Tai A Chau Detention Centre [1997] AC 97, 111A-D…. In my judgment, Mr Robb correctly submitted that the following four principles emerge:

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, 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.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But 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 which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences".

12

In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, Lord Dyson said, at [22] and [24]:

"22. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles …

24. As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J. said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."

13

In Lumba, at paragraphs [122] to [128], Lord Dyson rejected the submission that a refusal to return voluntarily both rendered the detention reasonable, and indicated an intention to abscond if released. The Secretary of State had to satisfy the court that, in the circumstances of the particular case, it was right to infer from a detainee's refusal to return voluntarily that he was likely to abscond. If he wished to challenge his deportation on ECHR or Refugee Convention grounds, it was reasonable for him to refuse the offer of repatriation pending the determination of those proceedings.

14

In R (Khadir) v Secretary of State for the Home Department [2006] 1 A.C. 207, Lord Brown helpfully reviewed the detention cases at [21] – [23]:

"21. It is time to come to a line of cases which have considered the exercise of the power of detention, not in fact in the context of removing those refused leave to enter under Schedule 2 but rather in relation to those whom it is intended to deport under Schedule 3. The first of these cases was R v Governor of Durham Prison, Ex p. Hardial Singh [1984] 1 WLE 704 where, following a two-year prison sentence for burglary, the applicant was served with a deportation order and detained for five months under paragraph 2(3) of Schedule 3 to the 1971 Act whilst the Home Office attempted to obtain for him a travel document from the Indian High Commission…..[Lord Brown then sets out the passage from Hardial Singh which is cited above]

22. That approach was followed by Laws J in In re Mahmod (Wasfi Suleman) [1995] Imm AR 311 and by the Court of Appeal in R (I) v Secretary of State for the Home Department [2003] INLR 196, both similarly concerned with applicants who had been detained for long periods under paragraph 2(3) of Schedule 2. Laws J in Mahmod said this, at p 314:

"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court...

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