R Dritan Krasniqi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE MOSES,LORD JUSTICE SULLIVAN |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1549 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/2285 |
| Date | 19 December 2011 |
[2011] EWCA Civ 1549
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE WAKSMAN QC
SITTING AS A JUDGE OF THE HIGH COURT
CO/6575/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Moses
and
Lord Justice Sullivan
Case No: C4/2010/2285
Melanie Plimmer (instructed by Paragon Law) for the Appellant
Thomas Roe (instructed by the Treasury Solicitor) for the Respondent
Hearing date : Thursday 1st December, 2011
The issue in this appeal is whether the appellant is entitled to damages for wrongful detention between 1 March and 20 August 2010 (or possibly September 2009 and March 2010), or alternatively for being held (until 10 June 2010) in prison rather than an immigration detention centre.
The appellant, a Kosovan of Albanian descent, entered the United Kingdom clandestinely on 24 November 1998, aged 16, during the war in Kosovo. On 26 May 1999 he was granted indefinite leave to remain on the ground that he was a refugee.
Since then he has had a long record of criminal offending, described in detail in the judgment. The main features are:
i) In September 2002 he was convicted of driving with excess alcohol and fined. In July 2003 he was sentenced to 4 months' imprisonment for driving whilst disqualified. In June 2004 he was convicted of further offences for which he received community punishment and rehabilitation orders.
ii) On 7 April 2005 the appellant was sentenced for a variety of offences: two common assaults, an assault occasioning actual bodily harm and two breaches of community punishment orders. The court imposed a series of custodial sentences to run consecutively. They totalled 2 years and 3 months' imprisonment. The sentencing judge commented that he was a man who persistently used violence.
iii) On 2 June 2006 he was convicted of sending offensive or menacing messages to his then girlfriend, for which he received a three year conditional discharge.
iv) On 24 September 2008 he was convicted of possessing (during the currency of his conditional discharge) a bladed instrument in public, and of common assault. He was sentenced to 30 months' imprisonment for the former and 3 months' concurrent for the latter. He could expect to be released on licence on 4 September 2009
The Secretary of State's attempts to secure his deportation date from September 2007:
i) On 5 September 2007 the Secretary of State initiated the procedure for deportation based on the 2005 convictions. This relied on section 72 of the Nationality, Immigration and Asylum Act 2002, under which a sentence of at least two years' imprisonment gives rise to a rebuttable presumption of conviction of "a particularly serious crime" for the purpose of the exception in article 33(2) of the Refugee Convention.
ii) The decision to deport was made on 31 December 2007. But on 27 January 2009 his appeal was allowed by the Asylum and Immigration Tribunal on the grounds that the 2005 convictions did not satisfy section 72 because no single conviction had resulted in a sentence of imprisonment of two years.
iii) On 14 July 2009 the Secretary of State gave notice that because of the 2008 convictions the appellant was liable to be deported, this time under section 32(5) of the UK Borders Act 2007. This provides for automatic deportation of a "foreign criminal" (a non-British citizen sentenced to imprisonment for at least 12 months), except where this would breach Convention rights or the Refugee Convention.
iv) On 28 August 2009 the Secretary of State told the appellant that he was to be detained under section 36(1) of the 2007 Act, pending consideration of deportation under section 32(5). On 4 September 2009 the Appellant ceased to be a criminal serving his sentence and became a foreign criminal detained pursuant to section 36(1) of the 2007 Act.
v) An internal detention review dated 29 September 2009 noted that advice was being sought on the application of section 72, and that in the meantime his detention was justified, because of the risk of re-offending and the serious harm to the public that could result, and because of past failures by him to report to his reporting centre.
vi) On 13 October 2009 the Secretary of State indicated that section 72 did apply and invited representations. On 4 November 2009 his solicitors replied, relying on his status as a refugee. They also asked that he be moved to an immigration detention centre.
vii) On 27 November 2009 the Secretary of State indicated that the section 72 presumption had not been rebutted, and that there would shortly be put in hand "cessation action" to end his refugee status.
viii) On 30 March 2010 the appellant was notified that the Secretary of State was proposing to cancel his status as a refugee.
ix) On 10 June 2010 he was moved from prison to an immigration removal centre.
x) On 20 August 2010 the decision was made to cancel his status as a refugee, with the result that section 32(5) of the 2007 Act applied. A deportation order was made on 31 August 2010.
xi) Appeals to the First-tier and Upper Tribunal were dismissed, that route being finally closed on 2 June 2011. Further representations seeking revocation of the deportation order were refused on 9 November 2011.
Throughout this period the appellant has remained, and remains, in detention pending deportation. There is no outstanding challenge to the principle of deportation, or to his current detention since August 2010. From 4 September 2009 until 10 June 2010, he continued to be held in prison, rather than a detention centre, even though the custodial part of his sentence had come to an end. The judge found (para 65), and it is not now disputed, that if the published policy had been correctly applied, he would, and should, have been transferred to the detention centre on completion of his sentence.
The judgment below
The judge dismissed both claims. As to the lawfulness of detention itself, he held that the Secretary of State should have begun the cessation procedure at an earlier date. Assuming reasonable diligence, the process should have started by the end of September 2009, shortly after the appellant went into immigration detention, and should have lasted no more than five months, leading to a decision by the end of February, rather than in August 2010 (para 48). He commented (para 49):
"On that footing it could be said that after the end of February 2010 [the appellant]'s detention was not justified because a reasonable period of detention was now exceeded. However, as the authorities make clear the reasonableness or otherwise of the period cannot finally be assessed until the question of risk of absconding or commission of further offences and the question of the now-projected time of release, are also factored in."
He found that, based on the...
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