R (Antonio) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lady Justice Gloster |
| Judgment Date | 08 February 2017 |
| Neutral Citation | [2017] EWCA Civ 48 |
| Docket Number | Case Nos: C4/2015/2682 and C4/2015/3466 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2017 |
[2017] EWCA Civ 48
Lady Justice Gloster
Lord Justice Irwin
Case Nos: C4/2015/2682 and C4/2015/3466
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Bidder QC
[2015] EWHC 1748 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Julie Anderson (instructed by Government Legal Department) for the Appellant
Alex Goodman (instructed by Duncan Lewis LLP) for the Respondent
Hearing date: 14 December 2016
Approved Judgment
Introduction
This appeal consists of a challenge to two successive judgments of HHJ Bidder QC, sitting as a Deputy High Court Judge. In his judgment of 21 November 2014, HHJ Bidder QC quashed a Detention Order made on 9 July 2013 and ruled that the Respondent's detention was unlawful between 18 October 2010 and 13 November 2013, periods when the Appellant was seeking to deport him as a foreign criminal. The case was begun in the Administrative Court, since at that point the Respondent remained in custody and was seeking his release. Following the first judgment, the issue of quantum was transferred to the Queen's Bench. In his subsequent judgment of 26 June 2015, the judge awarded nominal damages in respect of the period up to 22 January 2013, but awarded £50,000 in damages in respect of the remaining 293 days of unlawful detention. The Secretary of State for the Home Department appeals both judgments. She argues the learned judge was in error in quashing the deportation order and in finding that there had been any unlawful imprisonment and, in the alternative, that the damages for the later period were excessive.
The principal case turns on the relevant statutes, applying from time to time, which are said to found or affect the Appellant's power to detain; and in some aspects of the case, whether the power was exercised lawfully in accordance with the principles laid down in R (Hardial Singh) v SSHD [1984] 1 WLR 704, as approved in subsequent authority.
There is an argument between the parties as to the proper ambit of the appeal, which I address below.
The Facts
As will be clear, a key point in this case is the extent to which the Respondent has been uncooperative and less than frank about his origins and history, and thus his nationality.
The written evidence demonstrates the following matters, summarised here and expanded below. The Respondent has given two dates of birth: 27 May 1975 and 1977. On his account, he was born in Portugal, the son of a Portuguese diplomat. He says his mother had Jamaican nationality. Both are dead. On a biodata form completed on 10 September 2010, he gave his father's name as Juan Carlos Antonio. When interviewed on 2 December 2011 he gave the name as Jorge Silva Antonio. In the letter before action of 6 December 2011 he said his father was Carlos Hugo Antonio. In a subsequent letter of 8 April 2013, the name was said to be George Carlos Hugo Silva Antonio. In interview, he gave his mother's name as Stella Yvette Wilson. On the biodata form she was recorded as Wilhelmina Wilson.
He claims to have arrived in the United Kingdom in February 1992 and official records appear to confirm that he was present by October 1993. The Respondent's account has been that after being born in Portugal, he was educated in the USA. Neither in the relevant period of detention, nor during his previous imprisonment, has he had a Portuguese passport or travel documents. He claims his Portuguese passport was disposed of by police officers following his arrest in 2005. In an application for a job in 2002 he stated he had been educated in Jamaica between 1988 and 1992. He has suggested he has living relatives in the USA.
He has acquired criminal convictions. The most serious (and most recent) consist of convictions for robbery, attempted robbery and two offences of possession of an imitation firearm, for which he received nine years' imprisonment in total in the Shrewsbury Crown Court on 21 July 2005.
The Respondent has never claimed that he has British nationality. It is therefore not in issue but that he is a "foreign criminal" for immigration purposes, within the definition in Section 32 of the United Kingdom Borders Act 2007 ["the 2007 Act"].
In 2008, apparently in simple reliance on the information provided by the Respondent, he was made subject to a decision to make a deportation order. That decision was made on 11 September 2008. A deportation order was made on 21 October 2008, under section 5(1) of the Immigration Act 1971 ["the 1971 Act"], on the basis that the Respondent's presence in the UK was not conducive to the public good. He was to be deported to Portugal.
That first decision and order were made under the European Economic Area ["EEA"] Regulations, since if the Respondent was Portuguese, he was an EEA national. Although the Respondent fulfilled the definition of foreign criminal under the 2007 Act, if he was an EEA national he would fall into a relevant exception from the automatic deportation provision under that Act.
Although the Respondent initially sought to appeal the decision to deport, he withdrew his appeal on 6 October 2008. The order was served on him on 24 October 2008.
On 20 September 2010, he was served with a Notice of Deportation, deportation being set for 28 September. The custodial part of his prison sentence expiring on the following day, the Respondent was thereafter detained by the Appellant. The Appellant specified that the detention was pursuant to the power under Schedule 3, paragraph 2(3) to the 1971 Act.
The Respondent was flown to Lisbon on 28 September 2010, but was turned away by the Portuguese authorities on the basis there was no evidence he was Portuguese. He was not accepted by them as a Portuguese national. He returned to England on a flight the same day. He continued to be detained apparently on the same legal basis until 18 October 2010.
In addressing the facts, the learned judge divided the time under consideration into four periods, the first period of detention running from 21 September until 18 October 2010.
On that day, the Appellant revoked the Deportation Order, but continued to detain the Respondent. It is convenient to describe the period from 18 October 2010 to 5 April 2011 as the Second Period of detention. According to the findings of the Judge, there was throughout this period no explicit basis of detention set down or referred to in any record or correspondence. The Secretary of State simply never spelled out the legal basis for detention.
Throughout this period the Respondent continued to maintain that he was Portuguese (2014 judgment paragraph 3; appeal bundle D39/40). There was a review of detention on 7 January 2011, noted by the judge (2014 judgment, paragraph 80). The Respondent sought release on bail, but was refused by an immigration judge on 10 February 2011 (bundle E305). The Respondent was interviewed further about his home history on 23 February 2011. He repeated that he was born in Portugal and said he had moved to the USA when he was three. The Appellant notes this sequence is inconsistent with the detail he placed in the job application of 2002. He gave a degree of detail about his schooling in the USA, naming school friends, teachers and qualifications. He reiterated that his father was a Portuguese diplomat who had died in 1991 and he said that his mother had died in Nebraska in 1996. The Appellant notes that in a questionnaire of 2008 he stated his mother was alive. At another interview, he stated that his mother's house was destroyed by Hurricane Katrina. The hurricane affected the Southern States of America, not Nebraska, and took place in 2005, nine years after the claimed date of death. He provided a mobile telephone number for his brother and stated that the brother may have supporting material to establish the history. Subsequent enquiries have failed to find the brother.
On 3 March 2011, a further detention decision was taken in the following terms:
"I have considered Mr Antonio's case in accordance with chapter 55 of the latest Enforcement Instructions Guidance and with the presumption to release. However, he has received a nine year criminal conviction for firearms related offence. The length of the sentence demonstrates the seriousness of the crime and that he poses a risk of harm to the public. Mr Antonio has not been accepted as a Portuguese national by the Portuguese authorities and his use of deception indicates no reliance can be placed on his adherence to restrictions if released. Whilst investigations remain ongoing to identify Mr Antonio's true identity and nationality removal remains a realistic prospect. However, the process could be greatly speeded up with Mr Antonio's cooperation. In the light of the evidence I agree the risk of harm to the public and absconding outweighs the presumption to release. Detention authorised for 28 days."
The Appellant's case before the Judge was that, despite the absence of any contemporaneous documentation referring to the 2007 legislation, detention during the Second Period was maintained pursuant to the Secretary of State's powers under Section 36(1)(a) of the 2007 Act.
The next review of the Respondent's detention was on 5 April 2011. On that day the Appellant wrote to the Respondent, giving him notice that he might be liable to deportation (paragraph 31). As the matter was presented to the Judge by the Appellant, 5 April 2011 is the end of the period on which the Appellant sought to rely on the powers derived from Section 36(1)(a) of the 2007 Act. It should be noted that no reference to the 2007 Act or to "automatic" deportation appears in this letter or any earlier document.
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