R (Hussein) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KING |
| Judgment Date | 30 March 2010 |
| Neutral Citation | [2010] EWHC 2651 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3157/2010 |
| Date | 30 March 2010 |
[2010] EWHC 2651 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice King
CO/3157/2010
MR M HENDERSON appeared on behalf of the Claimant
MR J JOHNSON appeared on behalf of the Defendant
MR JUSTICE KING: This is an expedited rolled-up hearing in which if permission is granted the substantive hearing is to follow. I grant permission and proceed to determine the substantive issue. The issue is the legality of the continued detention of the claimant by the defendant Secretary of State pursuant to immigration powers. The claimant also seeks judicial review in relation to an assault and battery to which he allegedly was subjected, in breach, he would say, of Article 3, during the defendant's failed attempt to deport him to Baghdad back in October. That is not a matter before me today.
The applicant is a citizen of Iraq. He arrived in the United Kingdom unlawfully and clandestinely on 14 February 2002. He was granted, ultimately, exceptional leave to remain in the United Kingdom until 11 April 2006 but on 13 December 2004 he was sentenced to 18 months’ imprisonment for an offence of indecent assault and the judge recommend deportation. On 15 April 2005, following completion of his criminal sentence of imprisonment, he was detained by the defendant under the immigration powers conferred by the Immigration Act 1971, in particular, sub paragraph 2 of paragraph 2 of schedule 3, as applied by section 5(5) of the Act. That sub paragraph reads:
“where notice has been given to a person in accordance with regulations … of a decision to make a deportation order against him … he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
Subsequently, on 11 August 2005, a deportation order itself was made and served upon him on the 7 th of September 2005. His detention then continued pursuant to sub paragraph 3 of paragraph 2 of schedule 3. That sub paragraph reads:
“where a deportation order is in force against any person he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom …”
The claimant was then in detention until he was granted bail on 9 August 2006. By this time he had been in detention some 16 month. He was then detained again, in other words a re-detention, on 25 September 2009. He remains in detention now.
If one looks simply at the period of detention from the date he was redetained, on 25 September 2009, the period of detention has been some 6 months. If one looks to the overall period to which he has been subjected to administrative detention pursuant to the immigration powers of the defendant, it is some 22 months. I should record that the reasons for his re-detention was said to be a history of non-compliance with reporting conditions and a series of incidents in September 2009, including an allegation of his making a threat, allegedly with a knife, towards someone who was sharing accommodation with him. The defendant generally has made an allegation that the claimant applicant caused a disturbance at the reporting centre. However, for present purposes, these are not allegations which need weigh with the court; they have not been relied on by the Secretary of State as such to justify the continuing detention.
Then, on 15 October 2009, there was an attempted removal by the defendant of the applicant to Baghdad. In a lead judgment in the case of R (Ahmed) v Secretary of State for the Home Department [2010] EWHC 625 Admin, Langstaff J, in paragraph 1, set out the following facts, which are as equally applicable to this applicant as they were to the applicant in Ahmed:
“On 15 October 2009, a plane carrying 44 deportees from the United Kingdom landed at Baghdad airport. Shortly after that it took off again, heading back to the United Kingdom with 34 of those deportees on board. They had been refused entry to Iraq at Baghdad Airport. An inspector in the United Kingdom Borders Agency who was on board the plane, Nicholas Barton, gave evidence to me that such an event had never happened before in his knowledge or experience, it was the first flight carrying involuntary returnees to Iraq for some 5 years, if not longer, to Baghdad Airport, although there had been successful charter flights carrying involuntary returnees to the area of Iraq controlled by the Kurdistan Regional Government, the KRG.”
As in this case, so in Ahmed, the only issue for the court to determine was whether the continuing detention of the claimant was unlawful. In paragraph 4 of his judgment, Langstaff J said this, which is equally applicable to the present case:
“Plainly, the circumstances in which the sole flight for 5 years to Baghdad failed in its mission to return all the deportees on board raises the question of whether any future flight is likely to be successful within a reasonable time scale, or whether it is unduly optimistic to think it might be. That demands an investigation of the circumstances in which the attempt to return deportees by that flight came to the fate I have described.”
Before going further into the facts of this case, it is convenient to rehearse the applicable principles by which the legality of current detention is to be judged. On the face of the statutory provision, the power to detain conferred by the Immigration Act is an unfettered one. Sub paragraph 2 of paragraph 2 of schedule 3 reads:
“Where notice has been given … he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
Sub paragraph 3 reads:
“Where a deportation order is in force against any person he may be detained under the authority of the Secretary of State pending his removal”
It is now well established that “pending” means “until”.
However, it is equally well established that the power to detain in these circumstances is not unfettered. There are a number of authorities on this issue. One starts with the well known case of Hardial Singh v Governor of Durham Prison [1983] 1 WLR 704 before Wolf J, as he then was. One moves on to the exposition of principle by Dyson LJ in R (I) v SHAD [2002] EWCA Civ 888. There has been further attention given to the principles by the Court of Appeal in The Application of A v SSHD [2007] EWCA Civ 804, and in M v Secretary of State for the Home Department [2008] EWCA Civ 307. There have been other authorities, but the basic principles, in my judgment, are clear.
The limits on the power are as follows. First of all, the Secretary of State must intend to deport the person, and can only use the power to detain for that purpose. This is not controversial in this case. There is no suggestion that this principle has been offended. Secondly, the deportee may only be detained for a period that is reasonable in all the circumstances. The origins of this principle is to be found in the judgment of Wolf J in Hardial Singh at 706E, where the power is said to be implicitly limited to a period which is “reasonably necessary” for the purpose of effecting the deportation. Although, in subsequent authorities the expression has been “for a period that is reasonable in all the circumstances”(per Dyson LJ in I at paragraph 46(ii). It is also clear that the Secretary of State has to exercise all reasonable expedition to ensure that steps are taken which will be necessary to ensure the removal of an individual within a reasonable time. There is a further qualification to these principles which is now well established. This appears as principle (iii) in the four principles set out by Dyson LJ in I, paragraph 46:
“If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention”.
As Dyson LJ said further into his judgment:
“Once it becomes apparent that the Secretary of State will not be able to affect deportation within a reasonable period, the detention becomes unlawful, even if a reasonable period has not yet expired.”
Put another way, there has to be some realistic or reasonable prospect of removal within a reasonable time frame.
In the case of A, MA, B and ME v SSHD [2008] EWHC 142, at paragraph 16, Mitting J put the position in a way with which I concur:
“.. for continued detention to be lawful, two questions have to be capable of being answered. When does the Secretary of State expect to be able to deport? And secondly, what is the basis of that expectation?”
A helpful statement of principle as to what is meant by a reasonable period is to be found in the judgment of Dyson LJ in I at paragraph 48:
“It is not possible or desirable to produce an exhaustive list in all the circumstances that are or may be relevant to the question 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 would include, at least, the length of the period of detention, the nature of the obstacles that stand in the path of the Secretary of State preventing the deportation, the diligent speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles, the conditions in which the detained person has been kept, the effect of the detention on him and his family, the risk that if he was released form detention he...
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B (Algeria) v Secretary of State for the Home Department (No 2)
...Department [2009] EWHC 1655 (Admin); R (Ahmed) v Secretary of State for the Home Department [2010] EWHC 625 (Admin); R (Hussein) v Secretary of State for the Home Department [2010] EWHC 2651 (Admin) and R (HY) v Secretary of State for the Home Department [2010] EWHC 1678 (Admin). On this ba......