R (I) and Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Simon Brown,Lord Justice Mummery,Lord Justice Dyson
Judgment Date28 June 2002
Neutral Citation[2002] EWCA Civ 888
Docket NumberCase No: 2002/0743
CourtCourt of Appeal (Civil Division)
Date28 June 2002
Between
The Queen (on the Application of "I")
Appellant
and
Secretary of State for the Home Department
Respondent

[2002] EWCA Civ 888

Before

Lord Justice Simon Brown

(Vice-President of the Court of Appeal Civil Division)

Lord Justice Mummery and

Lord Justice Dyson

Case No: 2002/0743

2002/0768

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

(His Honour Judge Wilkie QC)

A Nicol Esq, QC & H Southey Esq (instructed by Messrs Fisher Meredith) for the Appellant

A Robb Esq (instructed by Treasury Solicitor) for the Respondent

Lord Justice Simon Brown
1

The appellant is a 40-year old Afghani. He arrived in this country on 7 January 1998 and claimed asylum. On 28 March 1998 his asylum application was refused but he was granted exceptional leave to remain. On 21 October 1999 he was convicted on two counts of indecent assault and sentenced to three years' imprisonment with a recommendation for deportation. He also became liable to register as a sex offender. On 23 January 2001 the respondent Secretary of State signed the relevant deportation order and on 29 January 2001 wrote to inform the appellant that although he was due for release on licence on 7 February 2001 he would in fact continue to be detained under paragraph 2(3) of Schedule 3 to the Immigration Act, 1971. Paragraph 2(3) provides:

"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 …"

2

Detention under paragraph 2(3) continued from 7 February 2001 until 29 May 2002 when we acceded to the appellant's submission that it was no longer lawful to detain him and allowed his appeal accordingly (for reasons which we are now giving). Before indicating more of that, however, let me first complete the history.

3

On 9 April 2001 the appellant lodged an invalid destination appeal which the respondent treated as a fresh application for asylum. The asylum interview took place on 2 November 2001 (some weeks, therefore, after September 11, clearly an event of some importance with regard to Afghani asylum seekers). On 17 January 2002 the appellant's solicitors wrote to the Home Office:

"Our client has been in detention on this basis [ie, under paragraph 2(3)] since January 2001 with no prospect of any removal taking place. He remains in detention indefinitely, as currently the Secretary of State is not removing nationals to Afghanistan, and the resumption of removals does not appear to be imminent. Accordingly, our client remains in detention pending his removal, despite the fact that the Secretary of State has no intention of enforcing this removal. It is argued that therefore paragraph 2(3) cannot justify his continued detention."

4

The Home Office replied on 28 January 2002:

"It is not true that we have no intention of enforcing [the appellant's] removal. We are, in fact, actively exploring a number of options for removing him and other failed asylum seekers to Afghanistan through neighbouring countries. The process entails discussions and negotiations with the countries concerned. We shall continue to review his case regularly, as we do in all detained cases, but we are satisfied that there are good prospects for carrying out his removal within a reasonable time period."

5

Also on 28 January 2002 the Home Office refused the appellant's fresh asylum claim. The appellant's appeal against that refusal was dismissed by the Adjudicator on 15 May 2002. At the date of the hearing before us, the appellant still retained his right to seek leave to appeal from the Adjudicator's decision to the IAT.

6

On 8 February 2002 the appellant brought linked proceedings respectively for an order of habeas corpus and for judicial review of the respondent's continuing decision to detain him. I shall refer to these compendiously as the appellant's challenge: both sides agree that they raise identical issues and must stand or fall together. The essential basis of challenge is that it had become clear that the appellant's removal within a reasonable time was impossible. On 22 March 2002 His Honour Judge Wilkie QC, sitting as a Deputy High Court Judge in the Administrative Court, dismissed the challenge. As stated, the appeal came before us on 29 May 2002—by right as to the habeas corpus proceedings, by our permission with regard to the judicial review application.

7

The challenge was advanced in the court below both under domestic law and under article 5 of ECHR. Article 5 provides, so far as relevant:

"(1) Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(f) the lawful arrest or detention … of a person against whom action is being taken with a view to deportation or extradition."

8

It was common ground before us, rightly as I believe, that the Strasbourg jurisprudence really adds nothing to the domestic law in this case and accordingly we concentrated on the proper approach to detention under paragraph 2(3). Three particular authorities bear helpfully on this and it is convenient to refer to them at once.

(i) Re Hardial Singh [1984] 1 WLR 704

9

Following a two-year prison sentence for burglary the applicant was served with a deportation order and detained for five months under paragraph 2(3) whilst the Home Office attempted to obtain for him a travel document from the Indian High Commission. Woolf J said this:

"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained … pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

10

In the event, Woolf J adjourned the hearing for a few days with an indication that the applicant should be released unless it proved possible to remove him "within a very short time indeed". Amongst the considerations to which he appears to have had regard were (a) that the applicant "is quite prepared to return to India", (b) "the Home Office have not taken the action they should have taken and nor have they taken that action sufficiently promptly", and (c) "the applicant had become distressed by his continuing detention and had made an attempt to take his own life".

(ii) Re Wasfi Suleman Mahmod [1995] Imm AR 311

11

The applicant was an Iraqi who had been granted asylum in Germany. On entering England as a visitor he was found in possession of opium and sentenced to four years' imprisonment with a recommendation for deportation. Like Hardial Singh (and the present appellant) he was served with a deportation order during the term of his imprisonment and detained under paragraph 2(3) from the date when otherwise he would have been released. His application came before Laws J after some ten months during which time the Home Office had been making unsuccessful efforts to persuade the German authorities to take him back. Having referred to Hardial Singh, Laws J said this:

"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on."

He expressed himself "entirely satisfied" that whatever would have been "a reasonable period for this man's continued detention … has certainly now been exceeded" and ordered his immediate release by habeas corpus.

(iii) Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97

12

The applicants were Vietnamese boat people, who were refused refugee status and detained in Hong Kong for periods of up to 44 months under the Immigration Ordinance. Delivering the judgment of the Privy Council Lord Browne-Wilkinson said this:

"The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain 'pending removal' their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes...

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