R (Mahfoud (Adel)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 04 August 2010 |
| Neutral Citation | [2010] EWHC 2057 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4996/2010 |
| Date | 04 August 2010 |
[2010] EWHC 2057 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon Mr Justice Hickinbottom
Case No: CO/4996/2010
Amanda Weston (instructed by Glazer Delmar) for the Claimant
Lisa Busch (instructed by Treasury Solicitor) for the Defendant
Hearing date: 29 July 2010
MR JUSTICE HICKINBOTTOM:
Introduction
The Claimant Adel Ben Mahfoud has been in detention since 8 June 2007, pending enforcement of an order of deportation to Algeria. In this judicial review, brought with the leave of Ian Dove QC sitting as a Deputy Judge of the High Court, he challenges the lawfulness of that detention.
The Law
The relevant law is well-trodden, and uncontentious.
Article 5 of the European Convention, so far as relevant to this case, provides:
“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 to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
Paragraph 2(2) and (3) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”) provides:
“(2) Where notice has been given to a person in accordance with regulations… of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) 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 (and if already detained by virtue of sub-paragraph… (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”
These provisions have been considered by the courts in very many cases. I was particularly referred to R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (notably the much-cited passage of Dyson LJ, as he then was, at [46]–[48]), R (A, MA, B & ME) v Secretary of State for the Home Department [2007] EWHC 142 (Admin), R (Mohamed Bashir) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin), R (Wang) v Secretary of State for the Home Department [2009] EWHC 1578 (Admin), R (Rostrami) v Secretary of State for the Home Department [2009] EWHC 2094 (Admin) and R (HY) v Secretary of State for the Home Department [2010] EWHC 1678 (Admin), all of which are helpful in identifying the relevant principles; to which I would add the judgment of Davis J in R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin).
The jurisprudence has been built up through these cases, but consistently and upon firm foundations. I consider that the principles in respect of the lawfulness of administrative detention under Schedule 3 to the 1971 Act relevant to this claim are now well-settled, as follows:
(i) The power of detention exists for the purpose of deporting the relevant person (“the deportee”).
(ii) The power exists until deportation is effected: but it can only be exercised to detain the deportee for a period that is reasonable in all the circumstances.
(iii) Whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deportee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the deportee must be released immediately.
(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a “reasonable time” will depend upon the circumstances of a particular case, taking into account all relevant factors.
(v) Those factors include:
(a) The extent to which any delay is being or has been caused by the deportee's own lack of cooperation in, for example, obtaining an emergency travel document (“ETD”) from his country of origin.
(b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order).
(c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur.
(d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour.
(e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD.
That list of factors is not, of course, exhaustive.
(vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no “trump card”. Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee's release.
(vii) The burden of showing that detention is lawful lies upon the Secretary of State.
Factual Background
The application of those principles to this case requires consideration of the factual background, including the reasons for the delay in the Claimant's deportation: in this case, as I have indicated, the Claimant has been detained under the 1971 Act for nearly 38 months. I shall consider the background under three headings: immigration history (paragraphs 8–15 below), (ii) the history of efforts to obtain an ETD (paragraphs 16–35) and (iii) medical history (paragraphs 36–38).
Immigration History
The Claimant first came to the attention of the immigration authorities on 16 June 2004, when he was arrested for transport fare evasion and illegal entry into the United Kingdom. He initially claimed to be French, but in interview said he was an Algerian national who had entered the United Kingdom clandestinely that week. He claimed asylum, but failed to attend his screening interview on 20 June, and disappeared.
On 13 November 2004, he was arrested for theft. The following day, he was served with Form IS191R, authorising his detention under the 1971 Act. On 22 December, he was convicted of the theft, sentenced to 3 months' imprisonment, and recommended for deportation on the basis that he was “illegally here, no work, living on crime, addicted to cocaine”. He completed the custodial part of the sentence on 22 January 2005, but was thereafter detained under the 1971 Act. On 24 March, the Immigration and Nationality Directorate (now the United Kingdom Border Agency) (“the UKBA”), on behalf of the Secretary of State, served him with a notice of a decision to make a deportation order.
However, the previous day (23 March 2005), the Claimant had made an application for asylum. That was refused on 28 July 2005, but the Claimant appealed. In the meantime, on 17 June 2005, he was released from detention, subject to residence and reporting conditions. The appeal before the tribunal was listed for 2 September, but the Claimant did not attend; apparently because he was by then serving a 6 month term of imprisonment for another offence of theft, from which he was released on 13 October 2005.
The tribunal appeal was eventually relisted for 18 November 2005, but the Claimant again did not attend, and it was dismissed in his absence on the basis that he had submitted no evidence in support of his claim. The Claimant never challenged that decision. He thereafter failed to comply with both residence and reporting conditions, and was lost to the immigration authorities until March 2006.
On 9 March 2006, he was convicted of further charges of theft, which he committed whilst disguised as a blind man. In the course of their preparation of a pre-sentence report, the Claimant gave the Probation Service an account of French nationality, birth and schooling in France, and a fire in France in which his family were killed. On 22 March, he was sentenced to 15 months' imprisonment for the theft.
On 25 October 2006, whilst on release on licence, he was again convicted of theft, for which he was sentenced to 14 months' imprisonment on 22 November. He was due to be released in respect of that sentence on 8 June 2007.
On 4 March 2007, he was interviewed in prison by UKBA officers. He claimed to have been born in Paris, and to have a French passport. He gave details of the (French)...
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