R JS (Sudan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Sharp,The Master of The Rolls |
| Judgment Date | 12 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1378 |
| Docket Number | Case No: C4/2013/0437 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 2013 |
[2013] EWCA Civ 1378
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT,
QUEEN'S BENCH DIVISION
Mr Philip Mott QC
CO64052011
Strand, London, WC2A 2LL
The Master of The Rolls
Lord Justice McFarlane
and
Lady Justice Sharp
Case No: C4/2013/0437
Mr Stephen Knafler QC and Mr Mark Symes (instructed by Duncan Lewis Solicitors) for the Appellant
Ms Julie Anderson (instructed by the Home Department) for the Respondent
JS, a 25 year old man who is a Zaghawan originating from the Darfur area of Sudan, was, for a period of just over two years, detained under the Immigration Act 1971 whilst it was determined whether or not his circumstances established a statutory exception thereby avoiding his otherwise automatic deportation on the basis that he was a "foreign criminal". In the event the period of detention terminated following a determination by the First-tier Tribunal (Immigration and Asylum Chamber) to the effect that his was an exceptional case and he was thereby excluded from the automatic deportation scheme. In judicial review proceedings JS sought a declaration that he had been unlawfully detained and he also sought damages. On 25 th January 2013 Mr Phillip Mott QC, sitting as a Deputy High Court judge, dismissed the claim for judicial review, holding that the claim failed on all grounds. The appellant now appeals against that decision to this court, permission to appeal having been granted, in part, by Sullivan LJ on 26 th March 2013.
The focus of the appellant's claim is not upon detention in principle, but upon the length of time that his detention lasted. Relying upon the circumstances to which I will now turn, the appellant's case is that there was no reasonable justification for him to spend any time in immigration detention following the date upon which he was due to be released from a substantial sentence of imprisonment imposed by the criminal court. His secondary case is that even if some period in immigration detention was justified, the significant majority of the lengthy period that he was in fact incarcerated fell beyond the line of what was "reasonable" and therefore must be held to be unlawful.
Factual background
The factual background, insofar as it is relevant to this appeal, can be stated shortly. JS arrived in the UK in November 2004 when, apparently, aged 16 years. He arrived surreptitiously in the back of a lorry, but his presence became known to the immigration authorities immediately. He sought asylum on the basis that, being a member of the Zaghawa tribe from Darfur, he and his family were subject to intolerable treatment by the majority population and the authorities in the state of Sudan. His application for asylum was refused in January 2005 on the basis that his claim to be a Zaghawan from Darfur was vague, unsubstantiated and lacking in detail. However, because of his age, he was given discretionary leave to remain in the UK until his assumed eighteenth birthday in October 2006. JS did not appeal against the refusal of asylum.
In September 2006 JS made a further application for Humanitarian Protection Discretionary Leave to remain in the UK beyond the expiration of his discretionary leave the following month. In a statement accompanying that application he once again gave details of his life as a Zaghawan living in Darfur. By letter dated 3 rd January 2007 the Secretary of State indicated that the fresh application would be entered into the "Legacy Programme" and would be considered in due course.
On 5 th May 2007 the most significant event in this chronological account occurred. The appellant, along with others, was arrested and charged with serious sexual offences against children. From that date he remained in custody. Following a full trial, he was convicted in the Crown Court on 21 st February 2008 and, on 8 th May 2008, sentenced to four years detention in a Young Offender's Institution. A brief description of the underlying facts indicates the seriousness of the appellant's offending. He, together with four others, had lured local schoolgirls to a house for the purposes of sexual activity. The three girls involved were aged 13 or 14. In the event, JS was convicted of two offences of sexual activity with a 13 year old girl, which were charged as samples of the course of conduct in which he had engaged with her. He was sentenced on the basis that these were planned offences and he knew the girl's age. In sentencing the judge expressly concluded that the three girls had been targeted by the group of five males.
In addition to the substantial custodial sentence, the Crown Court judge recommended that JS be deported. In any event, the provisions of the UK Borders Act 2007 provide that JS, as a "foreign criminal", is automatically to be regarded as a candidate for deportation under Immigration Act l971, s 3(5)(a) unless one or more of the statutory exceptions in UKBA 2007, s 33 is established. I will in due course set out the relevant passages of those provisions.
On 8 th May 2009 JS, who had been in continuous custody following his arrest two years earlier, was released from his prison sentence but remained detained under the immigration legislation pending his anticipated deportation.
On 13 th August 2009 a senior caseworker in the UK Border Agency, acting on behalf of the Secretary of State, instructed that JS's case should be evaluated and reviewed in the light of the circumstances that then existed. A request was made that JS be formally interviewed for that purpose by an immigration officer. That request was made on 17 th August 2009 but the interview did not take place until five months later, on 27 th January 2010. In the course of the interview JS once again gave details of his life in Sudan.
By the end of March 2010 the internal UKBA records show that the case had been re-evaluated by a caseworker and a new legal team on behalf of JS had submitted a full written response to the Secretary of State's initial "warning letter" issued in February 2010 indicating an intention to deport under the automatic deportation scheme. Despite the relevant material being available for analysis by the end of March 2010, the records show that the case was not reviewed by the senior caseworker until 23 rd June 2010. The senior caseworker accurately pinpointed the crucial point in the case. It was accepted that if JS was a non-Arab Darfuri then, because of what was known of the likely treatment of members of that ethnic group in Sudan, it would not be possible to enforce his automatic deportation. The senior caseworker however concluded that the evidence failed to establish that JS was Sudanese, as opposed to being a Zaghawan from a neighbouring country. Although the administrative decision to refuse JS leave to remain was taken by that caseworker on 23 rd June, the decision letter was not sent to him until 12 th August 2010.
The decision letter of 12 th August triggered JS's right to appeal against the decision to the First-tier Tribunal ('FTT'). The appeal was initially determined on 2 nd December 2010. His appeal on asylum grounds was dismissed on the basis of a statutory presumption arising from his criminal convictions, but his appeal on human rights grounds, based upon the potential for torture, inhuman or degrading treatment or punishment sufficient to satisfy European Convention on Human Rights, Article 3, was adjourned for a full hearing.
That hearing took place before the FTT on 23 rd February 2011. On the basis of evidence from JS, together with the evidence of an acknowledged expert on Sudan, Mr Verney, the FTT concluded that there was " overwhelming evidence" that JS was a Zaghawan from Darfur. His appeal against automatic deportation was therefore allowed on human rights grounds, in particular those under Article 3. The Secretary of State was refused permission to appeal by the FTT and, on 17 th May 2011, the Upper Tribunal also refused permission to appeal. Seven days later, on 24 th May, JS was released from detention.
In summary, the total period of immigration detention was 2 years and 2 weeks [8 May 2009 to 24 May 2011]. The period between the commencement of immigration detention and the Secretary of State's decision to proceed with deportation was 15 months [8 May 2009 to 12 August 2010]. The period between the decision and the exhaustion of any potential appeal was 9 months and this was followed by the final seven days before release.
The statutory context
It is convenient at this stage to set out the relevant parts of the statutory scheme:
A person who is not a British citizen is liable to deportation from the United Kingdom if:
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
UK Borders Act 2007, s 32
Automatic Deportation
(1) In this section "foreign criminal" means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of ...
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