R Badah v Secretary of State for the Home Department

Introduction

This is a claim for Judicial Review of the Claimant's detention pending his proposed deportation to Algeria. Permission was granted by King J on 2 September 2013 after a renewed application at an oral hearing.

The Claimant contends that his detention has been unlawful since 28 March 2011, the date on which his current period of detention began. Alternatively, he contends that it has been unlawful since 7 February 2013, when he submits that an impasse was reached with the Algerian authorities.

At the hearing before me it became clear that in the further alternative the Claimant contends for some other date on which his detention has become unlawful and that he submits that, certainly by the date of the hearing, his detention has become unlawful.

Factual background

The Claimant was born on 21 April 1986, it would seem in Algeria. He left Algeria in 2001.

According to his witness statement of 14 January 2014, he spent some time moving between France, Spain and Belgium. He arrived in the United Kingdom on 13 May 2006.

On 12 June 2006, he was sentenced to nine months' imprisonment for theft and burglary.

On 7 November 2006 he was detained under immigration powers. His first period of immigration detention was from that date to 5 March 2009, when he was granted bail by an immigration judge of the then Asylum and Immigration Tribunal.

The Claimant's application for asylum was refused and he appealed. The determination of the Tribunal was promulgated on 3 April 2007. The determination was given by the Asylum and Immigration Tribunal, comprising Immigration Judge Goldmeier, sitting with Mr Eames. The appeal was dismissed.

On 4 June 2007, a deportation order was signed.

On 5 March 2009, as I have already indicated, the Claimant was granted bail, subject to conditions as to residence and reporting twice a week.

On 22 August 2010, the Claimant had a conviction for shoplifting and was given a 12-month community order.

On 28 March 2011 the Claimant was arrested for breach of bail and has been detained since that time. There was some confusion at the hearing before me as to what, if any, part of that period of detention was attributable to other powers rather than under immigration powers. In a note provided after the hearing, counsel for the Secretary of State has made it clear that it was only the first day of the detention that can be regarded as "criminal detention" and the rest of the time since then has been detention under immigration powers.

While the Claimant has been in detention, he has been interviewed twice by the Algerian authorities, on 19 October 2012 and 7 February 2013.

The normal procedure for return of persons facing deportation in such circumstances is governed by an agreement between the United Kingdom and Algeria. The latest version of that agreement was concluded on 11 July 2010 (Treaty Series No.18 (2010)).Article 1 of the agreement provides in paragraph 1 that:

"Each party shall allow its nationals who are illegally in the territory of the other, to return to the country without formalities other than those provided for in the present Agreement, as far as it can be established or shown in a definite way in accordance with this Article that the mentioned persons have the nationality of the requested party."

It is made clear that even, for example, an out of date document will suffice for this purpose.

Article 2 provides in paragraph 1:

"If nationality is not established or shown in a definite way according to Article 1 of the present Agreement, the Competent Authorities of the requested party shall proceed without delay to determine the nationality of the person concerned by means of an interview undertaken in a prison, custody or other holding centre or any other place agreed on by both parties."

It would appear that it was pursuant to that provision that the Claimant was interviewed twice in the present case. Nevertheless, it has become apparent that those normal procedures under the agreement have not yielded the outcome which would normally be expected. Accordingly, the Claimant remains in detention because it has not proved possible so far to satisfy the Algerian authorities of his nationality or to obtain an emergency travel document for that purpose.

Relevant legal principles

The power to detain a person in circumstances such as the present is contained in Schedule 3 to the Immigration Act 1971, para.2(3):

"Where a deportation order is in force against a person he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom … "

English law regards with jealous care the deprivation of any person's liberty, particularly where what is under examination is administrative detention. The burden is on the Secretary of State to show that there is lawful justification for the Claimant's detention. It is common ground that the question is ultimately one of judgment for the Court itself. This is relatively unusual in the Judicial Review context because the Court is not simply reviewing the decision of the executive. See, for example, R on the application of A v Secretary of State for the Home Department[2007] EWCA Civ 804 (30 July 2007) at paragraph 62 where Toulson LJ said, so far as material:

"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)."

It is also apparent from the authorities that a long period of detention calls for the most anxious scrutiny.

The principles which govern cases such as the present were authoritatively set out by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 in which the principal judgment was given by Lord Dyson JSC. At paragraph 22, Lord Dyson introduced the well-known principles in Hardial Singh, that is R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (Woolf J).

Lord Dyson noted that it was common ground in Lumba that his statement in R (I) v Secretary of State for the Home Department[2003] INLR 196, paragraph 46, correctly encapsulates the principles 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 become apparent that the Secretary of State will not be able to effect deportation within a 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."

Also of importance are paragraphs 103 to 104 in the judgment of Lord Dyson in Lumba:

"103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.

104: How long is a reasonable period? At para 48 of my judgment in R (I), I said:

'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...