R Johnson v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 28 January 2015 |
| Neutral Citation | [2015] EWHC 763 (Admin) |
| Docket Number | CO/5307/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2015 |
[2015] EWHC 763 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/5307/2014
Mr P Turner (instructed by BHD) appeared on behalf of the Claimant
Mr T Eicke and Mr E Brown (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
The applicant seeks permission to bring a claim for judicial review on the basis of his argument that his continuing detention is unlawful. But for the intervention of the judgment of Dingemans J, that would be a nigh impossible argument to run. This is because the applicant has been made the subject of an automatic deportation order on the grounds of his being a foreign criminal pursuant to the provisions of section 32 and following of the Borders Act 2007.
It is not in dispute that the appellant is a foreign criminal for the purposes of section 32. It is not in dispute that he has been sentenced to a period of imprisonment of at least 12 months: on 11 August 2008, he was convicted of manslaughter and sentenced to 9 years' imprisonment.
The deportation order which was made on 18 August 2011, purportedly pursuant to the provisions of section 32(5) of the Borders Act, has never been quashed; it is still in existence. The statutory framework under the Borders Act in the case of a foreign criminal is that the deportation of a foreign criminal is conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971. That, therefore, gives rise to a liability to deportation: see section 3 of the 1971 Act. Under subsection (5) the Secretary of State must make a deportation order in respect of a foreign criminal (a deportation order under section 5 of the 1971 Act) subject to section 33. Section 33 allows for exceptions, and provides, among other provisions, that section 32(5) does not apply where an exception to the section applies. One of those exceptions is where the removal of the foreign criminal in pursuance of the deportation order would breach that person's Convention rights.
As of today, the Secretary of State has clearly stated that, in the view of the Secretary of State, no such exception applies. That was maintained by the decision of 23 November 2012 in which the Secretary of State maintained an earlier decision that section 32(5) did apply. As of today, there has been no further appeal to the Tribunal through the statutory scheme for appeal, seeking to appeal the decision of the Secretary of State that section 32(5) does apply. There is such a right of appeal under section 82(3A) of the Nationality, Immigration and Asylum Act 2002.
Subject to the effect of the intervention of Dingemans J, the Secretary of State can justify detention in this case because of her powers to detain under paragraph 2(3) of schedule 3 to the Immigration Act 1971: "detention pending removal". That states that:
"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 …"
In the context of an automatic deportation order, the Secretary of State can rely, to justify the exercise of that power, upon the mandatory provisions of section 36(2) of the Borders Act, which provides:
"Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate." (Emphasis added)
It is conceded that that power of detention, which it is said on behalf of the Secretary of State was exercised in this case, is subject to the Hardial Singh principles. These are well known. They emerge from the decision of Woolf J, as he then was, in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 and encapsulated in four principles set out by Dyson LJ, as he then was, in R (L) v Secretary of State for the Home Department [2002] EWCA Civ 88 and approved in Lumba in the Supreme Court, [2011] 4 All ER 1, those principles being:
(1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(2) The deportee may only be detained for a period that is reasonable in all the circumstances;
(3) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, [the Secretary of State] should not seek to exercise the power of detention;
(4) The Secretary of State should act with reasonable diligence and expedition to effect removal.
The Secretary of State's case is that, applying these principles, there is no Hardial Singh breach even arguably made out: the intention is to deport the applicant, the intention is to continue to detain him for that purpose, and that, although there is potential for an appeal by the applicant to the Tribunal, given Dingemans J's judgment, against the decision that section 32(5) applies, no such appeal has yet been instigated; given that, it cannot be said at this stage that the Secretary of State will not be able to effect deportation within a reasonable period.
The answer to all of this by the applicant is the decision of Dingemans J, who undoubtedly held in his judgment at [2014] EWHC 2386 at paragraph 61 that:
"… there has been a violation of article 14 in conjunction with article 8 of the ECHR, because the Claimant is currently being treated differently on the ground that he was illegitimate, and that such treatment is not justifiable."
The issues before Dingemans J are rehearsed at paragraph 20 of his judgment where three issues are set out:
1. Whether there has been a violation of article 14 in conjunction with article 8 of the ECHR, either because the Claimant was treated differently on the ground that he was illegitimate, or because he was treated differently on the ground that he had a different immigration status;
2. if so, whether: (a) the provisions of the 2002 Act can be interpreted to ensure conformity with the Human Rights Act; (b) the 2002 Act commencement order should be quashed; and (c) whether any other relief ought to be granted;
3. whether the decision certifying the Claimant's human rights claims as "clearly unfounded" should be quashed.
The background to the issues before Dingemans J was that although the applicant was undoubtedly a foreign criminal for the purposes of section 32 of the Borders Act, this was because in part that he fell within 32(1)(a) of the definition of "foreign criminal", namely "who is not a British citizen". He had been born of a British citizen on 18 March 1985, but at that time he could only have become a British citizen by virtue of having been born of a British citizen if he were legitimate, which he was not. This is because of the terms of section 50(9) of the British Nationality Act 1981.
History shows that there has been Parliamentary intervention since 1981. Section 9 of the 2002 Act, referred to by Dingemans J, made provision to amend section 50(9) which would have the effect, subject to certain conditions, of enabling an illegitimate child of a British citizen to become a British citizen. But the problem for the applicant was that, when it was brought into force on 1 July 2006, this section did not apply to somebody who was born before 1 July 2006. This is the effect of section 162(5) of the 2002 Act: "Section 9 shall have effect in relation to a child born on or after a date appointed by the Secretary of State by order," and the date appointed by the Secretary of State in the material commencement order was 1 July 2006. I might add that subsequent legislation has been enacted which, when it is brought into effect, would remove that bar, but the applicant will not be able to take advantage of these provisions because of the requirement of good character.
What Dingemans J did not do in terms was to rule on the lawfulness of the detention or the lawfulness of the deportation order. He declined to rule that the 2002 Act could be interpreted to ensure conformity with the Human Rights Act; he declined to quash the 2002 commencement order; as indicated, what he did rule in his judgment was that there had been violation of Article 14 in conjunction with Article 8 because the applicant is currently being treated differently on the grounds he is...
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