R DZ (Eritrea) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Sir Stephen Tomlinson,Lord Justice David Richards |
| Judgment Date | 19 January 2017 |
| Neutral Citation | [2017] EWCA Civ 14 |
| Date | 19 January 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2014/0844 |
[2017] EWCA Civ 14
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
His Honour Judge Birtles
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
Vice-President of the Court of Appeal, Civil Division
Lord Justice David Richards
and
Sir Stephen Tomlinson
Case No: C4/2014/0844
Declan O'Callaghan (instructed by Duncan Lewis & Co) for the Appellant
Julie Anderson (instructed by Government Legal Department) for the Respondent
Hearing date: 21 July 2016
Approved Judgment
Introduction
The appellant appeals against an order made by HHJ Birtles, sitting as a deputy judge of the High Court ("the judge"), dismissing the appellant's judicial review claim for declaratory relief that he had been unlawfully detained and tortious damages for detention. The judgment ("the judgment") is to be found at [2014] EWHC 92 (Admin).
The appellant contended before the High Court that he was unlawfully detained by the Secretary of State for the Home Department ("the respondent") for some or all of his detention from 28 November 2008 to 11 July 2012, a period of some 43 months or 1322 days. During such time the respondent stated that she was seeking to deport the appellant to Ethiopia.
The principal issue said to arise on the appeal is the lawfulness of the reasoning adopted by the judge and his approach to the application of the relevant principles set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704.
Permission to appeal was granted by Davis LJ on 5 August 2014.
In this court, Mr Declan O'Callaghan appeared on behalf of the appellant as he had below; Miss Julie Anderson appeared on behalf of the respondent.
Background facts
The essential facts are set out in the judgment. The appellant was born in Ethiopia in 1978 (prior to Eritrean independence in 1993). He is an ethnic Eritrean. He entered the United Kingdom on 28 August 1994, in possession of an Ethiopian passport (Eritrea being de jure a province of Ethiopia at the time the passport was issued). He was an Ethiopian national upon his arrival in this country. He was aged 16. On 1 September 1994 he claimed asylum.
The appellant's asylum application was refused in a decision dated 9 May 2000, but he was granted exceptional leave to remain in the United Kingdom until May 2004. The appellant did not make any application for a further period of leave and he has remained unlawfully in the UK since May 2004.
During the period from 1999 to 2007 the appellant was convicted of a number of drug-related and other criminal offences, all but one resulting in non-custodial sentences. That was a conviction for attempted robbery at Blackfriars Crown Court on 15 August 2001, for which he was sentenced to two years imprisonment.
No deportation action was taken at the time of the appellant's release from prison in 2002. On 25 April 2006 the appellant applied for indefinite leave to remain. That was refused on 25 May 2007 in light of his extensive criminal record.
A notice of a decision to make a deportation order was served on the appellant on 25 May 2007. He appealed and, after an extended appeal process, including a High Court review, his appeal rights were finally exhausted the first time around on 23 September 2008. By this stage the appellant had already been recorded as an absconder (on 22 August 2008) after he had repeatedly failed to comply with reporting requirements and efforts to trace him had failed.
A deportation order was signed in relation to the appellant on 28 October 2008. The appellant entered immigration detention on 28 November 2008, after being apprehended by the police. The Appellant was admitted to Oakington IRC on 29 November 2008. A deportation order was served on him formally on 22 January 2009. On 8 March 2009 he was admitted to Lindholme IRC after his poor conduct at Oakington IRC led to a request for his removal from that IRC to maintain good order.
On 17 March 2009 the appellant was served with removal directions. The removal directions were cancelled when the appellant's representatives responded with an application to revoke the deportation order. That application was considered and, when it was refused on 11 February 2010, the appellant was provided with a right of appeal. That appeal was dismissed by the First-tier Tribunal ("FtT) on 23 June 2010 and permission to appeal refused on 16 July 2010 by the FtT. On 13 August 2010 the Upper Tribunal also refused permission to appeal. The appellant brought an out of time judicial review challenge to the refusal to grant permission to appeal ("the appellant's Cart1 judicial review proceedings"), which in turn was refused permission on the papers on 16 February 2011. Removal directions were re-set for 7 March 2011, but these were cancelled on 5 March 2011 when the Secretary of State was informed that the appellant had renewed his application for permission to bring judicial review in the appellant's Cart judicial review proceedings. Those proceedings were then stayed pending the Supreme Court's judgment in Cart; the hearing had concluded on 17 March 2011 but the Supreme Court did not hand down its judgment until 22 June 2011. Subsequently, at a renewed oral hearing on 5 December 2011 of the appellant's Cart judicial review proceedings, the High Court refused permission for a judicial review.
Meanwhile the appellant had applied for bail but withdrawn the application on 4 October 2010. The appellant made a further application for bail some months later that was refused by the FtT on 14 June 2011. His representatives made a further application for revocation of the deportation order on 7 October 2011. The refusal of that application (with no further in-country right of appeal) was challenged by way of a further application for judicial review on 17 November 2011. Permission for judicial review was refused at the oral hearing on 5 December 2011.
On 27 May 2012 the appellant was returned to Ethiopia. On arrival he told the Ethiopian officials that he was not Ethiopian but Eritrean. The Ethiopian Officials rejected the removal on the basis that the EU letter was insufficient travel documentation for these purposes and the appellant was returned to the UK. In interview on 30 May 2012 the appellant insisted that he wanted to return to Ethiopia not Eritrea. On 19 June 2012 the appellant confirmed that he wanted to return to Ethiopia.
Removal directions were re-set for 27 June 2012. That removal did not proceed to completion as the airline refused to allow the appellant to board as it considered that he did not have the correct paperwork.
On 2 July 2012 the appellant confirmed in interview that he wished to return to Ethiopia so investigations were made to re-set removal directions for 11 July 2012.
On 6 July 2012 the appellant applied for bail and served a pre-action protocol letter in the current judicial review proceedings.
On 9 July 2012, removal directions were set for 11 July 2012 with a different airline. A response to the pre-action protocol letter was provided by the respondent on 10 July 2012. Removal directions were cancelled on notification of the issue of the current judicial review proceedings. At the bail hearing held on 11 July 2012, the FtT was informed that the removal directions had been cancelled in the light of the current judicial review proceedings, bail was granted and the appellant released that day.
The judgment
The judge came to the conclusion that he was not satisfied that the respondent had breached either the Wednesbury principle or the Hardial Singh principles and found that the detention of the appellant was lawful. The judge quoted at length the statement of the relevant Hardial Singh and other principles as set out by Haddon-Cave J in R (on the application of Ahmed Yakoub Mesbah Belkasim) v. Secretary of State for the Home Department [2012] EWHC 3109 (Admin) at paragraphs 102–106. He concluded that the appellant's original detention had been lawful and that, in relation to none of the respective periods of detention relied upon, had the Hardial Singh principles been "engaged", "involved" or "breached". The critical paragraphs of his judgment are paragraphs 47–53, where the judge deals with the relevant factors. He said:
" The five factors
47. Some of these have also been identified by Mr O'Callaghan and I have referred to that earlier in this judgment. I take each of the five factors in turn.
1. Lack of cooperation
48. There was a failure to cooperate with the removal process from 30th December 2008 to 18 th October 2010. I have already referred to some of them. The relevant references are core bundle 1/359 (22 nd January 2009); 1/362 (2 nd April 2009); 21/364 (17 th April 2009); 1/365 (12 th May 2009); 1/332 (25 th November 2011).
2. Risk of Absconding
49. Prior to his detention there were three failures to report: core bundle 1/431. In addition there was a breach of a Community Rehabilitation Order in September 2004. There was therefore some risk that the Claimant would abscond and it was a factor the Defendant was entitled to take into account: core bundle 1/681.
3. Risk of reoffending
50. It is only necessary to refer to the long list of offences committed by the Claimant whilst on bail and they were mostly after his custodial sentence. Furthermore there was misconduct whilst in custody and a denial of criminal activity. The Defendant's view places this as high: core bundle 1/684. She was entitled to come to the conclusion that there was a high risk of the Claimant reoffending.
4. Effect of detention on the Claimant
51. Mr O'Callaghan has not...
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