R A G v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Richard Clayton QC |
| Judgment Date | 20 May 2015 |
| Neutral Citation | [2015] EWHC 1309 (Admin) |
| Date | 20 May 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12277/2011 |
[2015] EWHC 1309 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Clayton QC
(sitting as a Deputy Judge of the High Court)
Case No: CO/12277/2011
Stephanie Harrison QC and Nicola Braganza (instructed by Birnberg Peirce & Partners) for the Claimant
Sarabjit Singh (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 22 nd, 23 rd October 2014 & 5 th November 2014
Introduction
This case concerns the legality of the authorisation and continuation of the detention of the Claimant, a Somali national, under administrative powers contained in sections 36(1)(a) and 36(2) of the UK Borders Act 2007 (the 2007 Act) and Schedule 3 paragraph (2)(3) of the Immigration Act 1971 (the 1971 Act) from 8 July 2010 to 26 February 2013, when he was released on bail. The Claimant was detained first, pending consideration of whether to make an automatic deportation order (between 8 July 2010 and 7 December 2010), and thereafter, pending removal between 7 December 2010 and 26 February 2013 when the Claimant was granted bail. In total, the Claimant was detained for a period in excess of 2 years and 7 months (just under 32 months).
On 8 February 2008 when he was 17, the Claimant was convicted of causing grievous bodily harm and was sentenced to 5 years imprisonment. No recommendation for his deportation was made. The Claimant was also convicted of violent disorder on the 3 July 2009 for which he received a 2 year concurrent prison sentence. On 21 May 2008, whilst the Claimant was serving his sentence, his son, Q O, was born.
The wide statutory powers conferred on the executive under the Immigration Act 1971 to administratively detain individuals pending consideration of their deportation are constrained by the implied limits contained in the well-known principles laid down in R v Governor of Durham prisonex parte Hardial Singh [1984] 1 All ER 983, endorsed by the Supreme Court in Lumba [2012] 1 AC 245. However, in fact, the principal argument at the hearing concerned a complaint that the Secretary of State has breached her duty of candour and/or had acted unfairly. Accordingly, the present case raises the following issues, as I understand it:
i) whether the Secretary of State breached the duty of candour and/or acted with conspicuous unfairness by failing to disclose relevant material when first identified in December 2012, which consisted of the details of the claims for asylum of the Claimant's mother and other close relatives whose accounts in particular of their clan group, their place of residence in Mogadishu and experience of past trauma and abuse had all been accepted by the Secretary of State when they had been recognised by refugees. The Claimant contends that this material provides a consistent account of key matters and gave detail of the Claimant's own history, which would have assisted in assessing to the requite low standard his clan and place of origin in Mogadishu, notwithstanding the discrepancies within his own account;
ii) whether the Secretary of State intended to deport the Claimant and only used the power to detain for that purpose ( Hardial Singh principle 1);
iii) whether, before the expiry of the reasonable period, it became apparent that the Secretary of State would not be able to effect deportation within that reasonable period ( Hardial Singh principle 3);
iv) whether the Secretary of State acted with reasonable diligence and expedition to effect removal ( Hardial Singh principle 4); and
v) whether the Secretary of State breached section 55 of the Borders, Citizenship and Immigration Act 2009 which requires her to have regard to the need to safeguard and promote the welfare of children whilst carrying out its functions.
The case was estimated to last up to 1 1/2 days, but, in the event, took three very full days and required Counsel for the Secretary of State to reply in part in writing. This reflected the considerable amount of evidence and case law that was placed before me.
FACTUAL BACKGROUND
The Claimant is a Somali national, born on 17 January 1989, who is now aged 26. He arrived in the UK on 7 August 2004 as an unaccompanied minor, then aged 15, and claimed asylum on the basis of his and his family's minority clan membership and fear of the Hawiye majority clan militia in Mogadishu.
On 21 September 2004 his claim was refused, but he was granted discretionary leave as a minor until 16 February 2007. He did not make an application for further leave when this period of discretionary leave expired, and he, therefore, remained in the UK without leave. The Claimant initially lived in foster care for a few weeks and then with his aunts and cousins who had been granted refugee status, but he had difficulty adjusting to life in the UK and separation from his own family. He lived with his relatives for about a year and then moved to a hostel for some time. He subsequently started smoking cannabis and drinking alcohol.
On 15 August 2007 the Claimant married H O A in a traditional Islamic ceremony.
On 30 October 2007 the Claimant's mother, F A W, arrived in the UK with his half-brother, and were granted refugee status on 16 May 2008. Her second husband was murdered in Somalia prior to her fleeing to the UK. F A W is a survivor of torture and gang rape and is severely traumatized. The Claimant has a large extended family in the UK of aunts, uncles and cousins, all of which had refugee status, Indefinite Leave to Remain or British nationality.
Convictions
From around 2006 the Claimant committed a number of criminal offences. On 8 February 2008 the Claimant was convicted of causing grievous bodily harm and received a determinate sentence of 5 years. No recommendation for his deportation was made. He was 17 at the time of the index offence. He was also convicted of violent disorder on the 3 July 2009 for which he received a 2 year concurrent prison sentence.
Contact between the Claimant and his son
The Claimant's wife, H O, was pregnant when the Claimant was convicted and gave birth to their son, Q O, on 21 May 2008, whilst the Claimant was serving his sentence in custody. The Claimant initially had visits with H O and Q O and the other members of his extended family. However, when he was transferred to HMP Doncaster, he maintained contact with his son and his family by telephone. When the Claimant was transferred into immigration detention at Colnbrook in London, contact was resumed with his son and the child's mother.
The decision to deport
On 29 November 2008 the Secretary of State informed the Claimant that he was liable to automatic deportation under section 32 of the UK Borders Act 2007. The Claimant responded in representations made on 18 February 2009, to the effect that he could not be deported because he was a refugee and/or entitled to humanitarian protection under Article 3 European Convention on Human Rights (ECHR) and because it would breach his Article 8 ECHR rights to family life. On 1 June 2010 he had a screening interview where the Claimant restated his asylum claim on the basis of his and his family's minority clan membership and that he had no family in Somalia and a son in the UK.
Immigration Detention
On 8 July 2010 the Claimant was due to be conditionally released on licence until 6 January 2013. However, he was immediately detained by the Secretary of State under section 36(1)(a) of the 2007 Act, while the Secretary of State considered whether to subject him to automatic deportation under section 32(5) of the 2007 Act. No such decision could be taken until the determination of the outstanding claim for asylum and his human rights claim under Article 8 ECHR, because of the statutory exceptions of automatic deportation in section 33 to the 2007 Act.
At the time that he was detained by the Secretary of State, the Claimant was assessed as a medium risk of reoffending and a high risk of harm, if he did offend, and absconding was relied upon because of the criminal offence. The Secretary of State did not accept that there was a biological relationship between the Claimant and his son. The barriers to removal identified were the outstanding claim of asylum, the fact that he had an in country right of appeal and the lack of an Emergency Travel document. The particular difficulties of effecting removals to Somalia and the limited if any actual removals taking place were not specifically addressed.
These reasons remained broadly the same for the next 5 months. No steps were taken between the 8 July 2010 and 1 November 2010 to consider his asylum and human rights claim. An internal GCID record dated 1 November 2010 said that the claim was not being determined because " he is from Somalia and there is no chance of removing him to Somalia, it is not considered a priority. However if a decision is required urgently a decision can be made within the month." His claims were subsequently considered and determined five weeks later on 7 December 2010.
On 13 December 2010, the Claimant was served with a signed deportation order dated 10 December 2010, and detained under section 36(2) of the 2007 Act and schedule 3 paragraph 2(3) of the 1971 Act, pending removal.
As it transpired, at that time the Secretary of State had in her possession details as to the Claimant's family members, their clan group, and place of residence and experiences of persecution in Somalia which had been accepted by the Secretary of State in...
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