R FH (Iran) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms Frances Patterson QC |
| Judgment Date | 01 May 2013 |
| Neutral Citation | [2013] EWHC 1092 (Admin) |
| Docket Number | Case No: CO/6259/2012 |
| Date | 01 May 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 1092 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Frances Patterson QC
(Sitting as a Deputy High Court Judge)
Case No: CO/6259/2012
Tim Buley (instructed by Deighton Pierce Glynn Solicitors) for the ClaimantMs Katherine Olley (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 12th and 13th December 2012
Introduction
This is a claim by FH for a declaration that the defendant, the Secretary of State for the Home Department, acted unlawfully in her detention of him.
The claimant was detained under immigration powers on the 21 st July 2009 until the 5 th July 2012, a period of two years eleven and a half months or one thousand and eighty days.
The claimant contends that his detention was unlawful:
(i) From its inception; or
(ii) Thereafter on a monthly basis when the continued detention was reviewed;and/or
(iii) From the 30 th November 2011 when the United Kingdom government ordered the closure of the Iranian embassy in London.
Factual background
The claimant is an Iranian national. He was born in Iran on the 16 th February 1955. He entered the United Kingdom as a student on a four month visitor visa on the 2 nd January 1979.
In July 1980 the claimant married a British citizen (Penny Preece) in a Muslim ceremony in Paris. On the 27 th January 1981 the claimant re-entered the United Kingdom and was granted leave to enter until the 27 th April 1981. After a further extension the claimant was granted indefinite leave to remain on the 24 th August 1982.
The claimant and his wife had four children. They are, Alexander, born on the 7 th October 1982, Daniel born on the 14 th November 1985, Lara born on the 16 th October 1988 and Leander born on the 23 rd July 1992. The claimant's sons have served with the British army and his daughters are respectively a teacher and a student.
The claimant's marriage broke down. His divorce was finalised in 1996. He remains on good terms with his ex wife and his children some of who were present in court. In 1996 the claimant's previously successful business career faltered and he was made bankrupt for the first time. He was made bankrupt for the second time in 2002.
On the 12 th January 2001 the claimant applied for naturalisation as a British citizen. As part of the application a letter which was dated the 16 th April 2002 was sent to the caseworker at the Immigration and Nationality Directorate of the Home Office. The letter enclosed all of the claimant's passports including the earliest from 1979 when the claimant said that he was granted indefinite leave to remain. Photocopies of the passports remain on the Home Office file. The application was refused on the 13 th August 2002 as the result of unspent criminal convictions.
On the 11 th May 2003 the claimant was involved in a serious road traffic accident. The injuries sustained were of sufficient severity as to warrant an award of disability/incapacity benefit.
Between 1998 and 2005 the claimant was convicted of a total of 26 offences: four for obtaining property by deception, one for common assault, criminal damage, using threatening/abusive behaviour, threats to kill and unlawfully harassing an occupier, and two each for unlawful evictions and assault occasioning actual bodily harm. The balance were for perverting the course of justice.
On the 5 th August 2005 the claimant was sentenced by Bournemouth Crown Court to four years' imprisonment following his plea of guilty to assault occasioning actual bodily harm and his conviction by a jury of making threats to kill. The offences arose as a consequence of a failed business on the part of the claimant. The Judge, in his sentencing remarks, observed that the claimant nursed a long-standing grievance against his victim (who had agreed to buy the premises in which the claimant had been a tenant) claiming that he, the claimant, was still entitled to occupy the premises or that he required payment for the equipment that he had on the premises. The threat to kill "was a calculated threat in the context of a history of trouble". The assault occasioning actual bodily harm was a head butt or a punch followed by a kick to the victim when he was on the floor.
On the 1 st December 2005 the claimant was sentenced by the Bournemouth Crown Court to two years and six months' imprisonment following his conviction of thirteen counts of committing an act or series of acts with intent to pervert the course of justice and four counts of obtaining property by deception. The sentence was ordered to be served consecutively to that which FH was serving.
On the 5 th May 2006 the claimant was served with notice of liability to deportation. He responded with representations based on articles 2 and 3 of the ECHR on the 9 th May 2006. The defendant treated the representations as an asylum claim. The representations were considered and his asylum application refused on the 20 th April 2007.
On the 12 th November 2007 the claimant was served with notice requiring him to rebut the presumption under section 72 (2) of the Nationality, Immigration and Asylum Act 2002 that his continued presence in the United Kingdom constituted a danger to the community. He responded through a solicitor's letter on the 20 th November 2007.
On the 10 th October 2008 the claimant was served by the defendant with a decision to make a deportation order. His appeal was dismissed in a decision promulgated on 8 th December 2008. His application for reconsideration was refused on the 8 th January 2009 and he became appeal rights exhausted on the 20 th January 2009.
The claimant was served with a signed deportation order on the 25 th February 2009.
On the 14 th of July 2009 the defendant sent a "reasons for detention" letter to the claimant although the claimant does not believe that he ever received it. A minute of the decision to detain the claimant dated the 14 th July 2009 says,
"Likelihood of removal within a reasonable timescale. The claimant has refused to cooperate in the documentation process. It looks unlikely that he will be removed any time soon."
On the 21 st July 2009 the claimant was detained under immigration powers and began receiving monthly detention reports (DR).
On the 14 th August 2009 DR1 concluded that the risk of reoffending, absconding and the claimant's criminal history justified the claimant's ongoing detention. It also said:
"There is no prospect of FH's removal from the UK any time soon…"
On the 9 th September 2009 the detention report (DR2) stated,
"Like most Iranian nationals in this situation, there is no prospect of FH's removal from the UK any time soon. He has flatly refused to cooperate with the ETD process by refusing to provide any personal documentation like an expired passport, Iranian ID card, birth certificate or driving licence to enable us to obtain a travel document for him. He has also refused to attend at an interview at the Iranian embassy."
Similar sentiments were expressed in the detention reviews of October, November and December 2009 and January and February 2010.
It was noted also that the claimant had failed to provide his current/or expired Iranian passport and/or his ID card when they were sought on the 15 th September 2009, 13 th October 2009, November 2009, 5 th January 2010, 4 th February 2010, 30 th March 2010.
On the 13 th October 2009 the claimant failed to provide the necessary information to complete a bail application. That was the case also in November 2009 and on the 5 th January 2010.
On the 25 th February 2010 the claimant brought a County Court claim against two UKBA staff for unlawful detention.
On the 1 st March 2010 the detention review recorded,
"As FH entered legally, it was suggested that we should therefore obtain a copy of his passport. Unfortunately there is nothing available on file."
"…the necessary travel documentation is not readily available. His removal is not anticipated any time soon."
On the 30 th May 2010 the Treasury Solicitor filed a defence to the County Court action in the Weymouth County Court which stated,
"The defendant is not aware of any reasons why the claimant was not released from his sentence on the 21 st July 2009…"
On the 27 th April 2010 the claimant refused to co-operate with the emergency travel documentation (ETD) process. On the 28 th April 2010 the claimant refused to attend an interview and failed to return the disclaimer form. The defendant noted that, "subject stated he will not comply to ETD process."
On the 25 th May 2010 the claimant refused to provide evidence of his identity.
On the 11 th June 2010 the claimant did not attend an emergency travel documents interview. The defendant considered the use of section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 prosecution powers.
On the 22 nd June, 17 th August and 14 th September 2010 the claimant failed to provide evidence of his identity.
On the 14 th October 2010 the claimant was moved to HMP Elmley.
On the 22 nd October 2010 the claimant was interviewed and said he did not want to return to Iran.
On the 18 th January 2011 the claimant was moved to Colnbrook Immigration Refugee Centre.
On the 3rd March 2011 and 25 th March 2011 the claimant was offered an application form for the facilitated return...
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