R (Ahmed) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 19 February 2010 |
| Neutral Citation | [2010] EWHC 625 (Admin) |
| Docket Number | CO/14626/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2010 |
[2010] EWHC 625 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2A 2LL
Before: Mr Justice Langstaff
CO/14626/2009
MS H WILLIAMS QC and MR M HENDERSON (instructed by Refugee & Migrant Justice) appeared on behalf of the Claimant
MR JEREMY JOHNSON and MR WAITE (for Judgment) (instructed by Treasury Solicitors) appeared on behalf of the Defendant
(As Approved)
May it please your Lordship. My Lord, before you commence judgment, I wonder if I could just mention to two things very briefly? The first is just for completeness; my learned friend, Mr Waite has handed me this morning a copy of the Court of Appeal's decision in the Abdi case that was referred to yesterday. My Lord, paragraph 102 strikes use as the only paragraph that is potentially relevant.
I had better have a look at that in that case.
My Lord, we don't believe it in fact adds anything to the authorities you were shown yesterday, but because it is the most recent statement on the subject, we thought it pertinent to show it to your Lordship before you give judgment.
Yes.
But it essentially says in relation to a refusal to—
Let me just see what it says, and then you can make your submissions on it.
Paragraph 102, my Lord.
Thank you. (Long pause).
My Lord, paragraph 102 really deals with two points. Firstly, the refusal to return voluntarily, where, in my respectful submission, it does not add anything to the authorities we cited to yesterday; it simply confirms it is a relevant consideration. Secondly, there is brief reference to the situation where the detainee in question has pursued and appeals and so forth, and in relation to that, with respect, at least we submit it confirms the position that we contended for yesterday, namely that it is only relevant if the period of detention has been increased in consequence.
Yes.
My Lord, as far as we are aware, and obviously I have only had a short time to look at the decision, that is the only paragraph that bears on the issues that your Lordship has to decide.
Thank you very much. Mr Waite, is there anything which you would wish to draw my attention to.
My Lord, no. I agree that the relevant passages are those relating to voluntary return, but it does not change the existing position set out in the case law.
Thank you very much.
1. On 15 October 2009, a plane carrying 44 deportees from the United Kingdom landed at Baghdad airport. Shortly after that, it took off again heading back to the United Kingdom with 34 of those deportees on board. They had been refused entry to Iraq at Baghdad airport. An inspector in the United Kingdom Borders Agency who was on board the plane, Nicholas Barton, gave evidence to me that such an event had never happened before in his knowledge or experience. It was the first flight carrying involuntary returnees to Iraq for some five years, if not longer, to Baghdad airport, although there had been successful charter flights carrying involuntary returnees to the area of Iraq controlled by the Kurdistan regional government, the KRG.
2. The claimant was one of those 34 who returned. He was in detention beforehand and has been in detention since. By his claim in this case, which was issued on 2 December 2009, he claims that his detention was unlawful, both to that date and continuing thereafter, and by amended grounds he has claimed to have been assaulted in the course of the flight, causing a minor injury, and has accused the Secretary of State of contempt of court by failing in his obligations to provide appropriate disclosure.
3. By agreement, the only issue for me to determine in this hearing is whether the continuing detention of the claimant is unlawful.
4. Plainly, the circumstances in which the sole flight for five years to Baghdad failed in its mission to return all the deportees on board raises the question whether any future flight is likely to be successful within a reasonable timescale, or whether it is unduly optimistic to think that it might be. That demands an investigation of the circumstances in which the attempt to return deportees by that flight came to the fate I have described, to which I shall return later in this judgment.
The law
5. The starting point, as Mr Johnson who appeared for the Secretary of State reminded me, was that detention is in general unlawful unless it is justified, but detention for the purpose of deportation is lawful because statute authorises it. However, English law has long been jealous of a man's right to liberty. He may only be deprived of it by the state with good reason within the law, and for no longer than is necessary and proportionate to the object sought to be achieved by that detention. Thus the general principles were set out in the case of Re Hardial Singh [1984] 1 Weekly Law Report 704 at 706 D and then Tan Te Lam vs Tai A Chau Detention Centre [1997]AC 97 at page 111 A—D. The principles in those cases are well known, but were summarised by Lord Justice Dyson in the case of I vs SSHD [2002] EWCA Civ 888 at paragraph 46 in these terms:
“(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 all reasonable diligence and expedition to effect removal.”
6. It was recognised as a principle of the law of human rights as it is explained by the European Court of Human Rights in the case of Chahal vs United Kingdom [1997] 23 European Human Rights Reports page 413 at paragraph 113 that:
“Any deprivation of liberty … will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5( 1)(f). 5(1)(f) provides that that it is possible that the lawful arrest or detention of a person against whom action has been taken with a view to deportation is not a breach of Article 5.”
7. As to these principles there is in this case general agreement between counsel before me. They agree too that every case is necessarily fact specific. I regard this as both important and obvious. If authority were needed, it can found at paragraph 43 in A vs SSHD [2007] EWCA Civ 804 under the heading: “Core principles”, and in other cases besides.
8. The role of the court in the light of those facts has been the subject of decision in the case of Haniel El Sayed Sabaei Yousef vs Home Office [2004] EWHC 1184 by Mr Justice Field, who expressed the view that the question of whether or not detention is lawful is to be judged by the court as a primary decision-maker. It is not appropriate for the court simply to review whether it might have fallen within the reasonable scope of decision making by the Secretary of State. That approach was adopted by Mr Justice Wyn Williams in the case of S vs SSHD [2007] EWHC 1654 Admin, a case in which judgment was given on 18 July 2007. Both of those were at first instance, but it is, as it seems to me, beyond doubt that that approach is correct, because of what followed within a fortnight in the judgments of the members of the Court of Appeal in A vs SSHD [2007] AWCA Civil 804. At paragraph 62 Lord Justice Toulson said:
“Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention, and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).”
9. I adopt that approach. Given that the purpose of detention in circumstances such as these is to facilitate deportation, the central questions are inevitably those which were expressed by Mr Justice Mitting in the case of A & Others, which I shall call A & Others to distinguish it from the Court of Appeal case also bearing the name A to which I have just referred. At paragraph 16 he described the two questions that had to be capable of being answered as being:
“Firstly, by when does the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation?”
10. Those questions, however, are posed as though they are capable of precise answer. They may not always be. This, as will be seen, is one case in which there is no precise answer to those questions, but certainly those questions direct attention to the likely length of incarceration pending detention, and an...
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