R (Hussein) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 21 October 2009 |
| Neutral Citation | [2009] EWHC 2492 (Admin) |
| Date | 21 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court
Nicol J
Representation
Mr Raza Husain, Mr Joseph Middleton and Ms Laura Dubinsky instructed by Fisher Meredith LLP, for the Claimant;
Mr James Eadie QC and Mr Parishil Patel instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
Chahal v United Kingdom 1996 ECHR 22414/93, ECtHR; (1996) 23 EHRR 413
Immigration and Naturalisation Service v St Cyr 533 US 289 (2001)
Lynas v Switzerland 1976 ECHR 7317/75, EComHR; 6 DR 141 (1976)
McVeigh, O'Neill and Evans v United Kingdom 1981 ECHR 8022/77, EComHR; (1983) 5 EHRR 71
Quinn v France 1995 ECHR 18580/91, ECtHR; (1996) 21 EHRR 529
R (on the application of A) v Secretary of State for the Home DepartmentUNK [2007] EWCA Civ 804
R (on the application of I) v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 888; [2003] INLR 196
R v Governor of Durham Prison ex parte Hardial SinghWLR [1984] 1 WLR 704; [1984] All ER 983; [1983] Imm AR 198
Secretary of State for Social Security v TunnicliffeUNK [1991] 2 All ER 712
Legislation and international instruments judicially considered:
European Convention on Human Rights, Article 5(1)(f)
Immigration Act 1971, schedules 2 & 3
UK Borders Act 2007, sections 32, 33, 36(1)(a) & 59(4)(d)
UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008/1818), Articles 2 & 3
Human rights — Article 5 of the ECHR —“action with a view to deportation”— power of detention not incompatible with right to liberty — procedure and process — detention — power to detain — s. 36(1)(a) of the UK Borders Act 2007 — applicability of automatic deportation provisions — no unlawful retrospective effect —Hardial Singh principles amended
The Claimant, a citizen of Somalia, arrived in the United Kingdom in 1993 and was later granted indefinite leave to remain. On 20 June 2008 he was convicted of several offences, including possessing an offensive weapon and assault occasioning actual bodily harm. He was sentenced to 16 months' imprisonment on 28 August 2008. The Claimant was due to be released on licence on 18 February 2009. The Secretary of State for the Home Department decided, however, that he should remain in detention pursuant to the UK Borders Act 2007 (‘the 2007 Act’) which was passed on 30 October 2007. Section 32 of the 2007 Act placed a duty on the Secretary of State to make a deportation order in respect of a person who was not a British citizen who had been convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least 12 months. Section 33 detailed those who were exempt from the provisions of automatic deportation. Section 36 conferred the power to detain foreign criminals who were liable to automatic deportation under s. 32(5). The relevant provisions of the 2007 Act were brought into force by the UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008/1818) on 1 August 2008.
The Claimant applied for judicial review challenging the lawfulness of his detention. He made three principal submissions. First, individuals who were convicted between the date on which the 2007 Act was passed and the date of commencement of s. 32 were not liable to automatic deportation and accordingly the Secretary of State had no power to deploy the detention provisions in his case. Secondly, s. 36(1)(a) gave the Secretary of State a power to detain while he was still considering whether the obligation to deport under s. 32(5) applied and accordingly that power would necessarily be used in advance of “action with a view to deportation” contrary to the purposes of Article 5(1)(f) of the ECHR. Thirdly, the limitations implicit in powers of detention as recognised in the decision of R (on the application of Hardial Singh) v Governor of Durham PrisonWLR[1984] 1 WLR 704 required some modification following the introduction of s. 36(1)(a).
Held, refusing the application for judicial review:
(1) on the proper interpretation of the 2007 Act, the condition for automatic deportation that the person concerned be convicted of an offence was fulfilled if a person was or had been convicted of an offence; section 32, read in light of s. 59(4)(d) concerning the mechanics of commencement, must have been intended to cover those who had in the past been convicted as well as those who were convicted after commencement; accordingly, the automatic deportation provisions did apply to those who were convicted between 1 November 2007 and 31 July 2008; the process of determining the proper meaning of the legislation could not be assisted by the choice of a commencement date; the presumption against retrospectivity did not provide sufficient support for the argument that those persons sandwiched between the relevant dates would not be subject to the automatic deportation provisions (paras 20–25, 28 and 54).
(2) the power of detention in s. 36(1)(a) while the Secretary of State considered whether any of the exceptions in s. 33 applied was not incompatible with Article 5(1) of the ECHR: Chahal v United KingdomHRC(1996) 23 EHRR 413 considered; there was no requirement that deportation or extradition proceedings had to be actively pursued for Article 5(1)(f) to justify detention; the structure of the 2007 Act was different to that of the Immigration Act 1971; the power to detain under the Immigration Act 1971 was discretionary and consequently it could not be said that action with a view to deportation was being taken until the Secretary of State decided that a person's presence in the United Kingdom was not conducive to the public good; in relation to the 2007 Act, deportation was automatic unless one of the exceptions in s. 33 applied and deportation was deemed by statute to be conducive to the public good (paras 34, 38, 42 and 54);
(3) the implied limitations on detention as outlined in cases such as Hardial Singh, R (on the application of I) v Secretary of State for the Home DepartmentUNK[2002] EWCA Civ 888 and R (on the application of A) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 804 were still applicable, with some modifications: first, the Secretary of State must intend to deport the person, unless one of the exceptions in s. 33 applied, and could only use the power to detain for the purpose of examining whether they did; secondly, detention must still not exceed a period which was reasonable in all the circumstances; thirdly, if, 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, he should not seek to exercise the power of detention; fourthly, the Secretary of State should act with reasonable diligence and expedition to determine whether any of the exceptions in s. 33 was applicable; applying these principles, the exercise of the power of detention in the Claimant's case was not unlawful (paras 43–44 and 53–54).
Mr Justice Nicol:
[1] The Claimant is from Somalia. He came to the UK at the age of 9 in 1993. In 2001 he was granted indefinite leave to remain in this country. On 20th June 2008 he pleaded guilty to charges of theft, having an offensive weapon, assault occasioning actual bodily harm and common assault. He was committed to Harrow Crown Court for sentence. On 28th August 2008 he was sentenced to 12 months imprisonment on these charges. In addition four months of an earlier suspended sentence was activated. In total, he was therefore sentenced to 16 months imprisonment. So far as this sentence was concerned, he would have been entitled to be released on licence at the half way stage. Bearing in mind the period that he had spent in custody on remand, this would have led to his release on 18th February 2009. However, he was not then released. He has been held since under the authority of the Secretary of State for the Home Department who relies on the UK Borders Act 2007.
[2] There has for a very long time been a power to deport non-British Citizens whose presence in the UK the Secretary of State considers not to be conducive to the public good—see Immigration Act 1971 s. 3(5)(a). The Secretary of State could reach that view because, for instance, of a conviction for a criminal offence and he could come to that conclusion whether or not the criminal court had recommended deportation under s. 3(6) of the 1971 Act. However, under the 1971 Act the Secretary of State has a discretion to deport. That is clear from s. 5(1) of the 1971 Act.
[3] The 2007 Act introduced the idea of “automatic deportation”. It will be necessary in due course to refer to the precise terms of the legislation, but in broad terms, the Secretary of State is now under an obligation to make a deportation order in respect of a “foreign criminal”—that is a non-British citizen who is convicted in the UK of an offence and sentenced to not less than 12 months imprisonment—see 2007 Act s. 32. There are exceptions to this duty, notably for the purposes of the present case, if deportation would be contrary to the Refugee Convention or the European Convention on Human Rights. The Act then gives the Secretary of State a power to detain a person who has served a period of imprisonment “while the Secretary of State considers whether s. 32(5) [the obligation to make an automatic deportation order] applies”—s. 36(1)(a). It is this power which the Secretary of State has exercised in the present case and the basis on which he justifies the Claimant's continuing detention since 18th February 2009.
[4] The relevant provisions of the 2007 Act were brought into force by the UK Borders Act 2007 (Commencement No 3 and Transitional Provisions) Order 2008 SI 2008 No 1818 (C77) on 1st August 2008. The Claimant argues that the provisions do not apply to him because his conviction took...
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