R Mahmoud v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Nicholas Paines QC |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2201 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2012 |
| Docket Number | Case No: CO/10123/2010 |
[2012] EWHC 2201 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Paines, QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/10123/2010
Mr T Richards (instructed by Sutovic & Hartigan) for the Claimant
Mr O Draper (instructed by Treasury Solicitor) for the Defendant
Hearing date: 30th March 2012
This is my final judgment in this case. It replaces the judgment I delivered orally on 28 May, in which I gave a ruling on the legality of the claimant's detention over the period from its inception until the latter part of 2011. I found that the detention was for the most part lawful though the claimant is, in my judgment, entitled to nominal damages for a period when detention was maintained in the mistaken belief that he originated from the Kurdish Region of Iraq. At the time I delivered judgment I did not feel able to rule conclusively on the lawfulness of detention since the date of the decision of the Court of Appeal setting aside the judgment of the Upper Tribunal in the case of HM (Iraq), to which I shall go on to refer. In the light of the further submissions received from both parties, I conclude that the claimant's detention order (he is currently on bail) has remained lawful.
The Facts
The claimant is a citizen of Iraq. He is of half Kurdish descent and born in September 1984. He originates from Mahmour. This is in the area controlled by the Baghdad authorities, as I shall call them, to distinguish the main part of Iraq from the northern region controlled by the Kurdish Regional Government, to which I shall refer from time to time as the KRG.
It appears the claimant arrived in the United Kingdom on 2 July 2002 and immediately claimed asylum. He was then aged about 17 3/4. He said that he had arrived that day on a lorry via Turkey. The basis of his asylum claim was that he used to work with his father in a motor tyre shop. His father had gone to buy some tyres from a government source using money provided by some customers. The money proved to be counterfeit and the claimant's father was arrested for fraud against the government. Later the security forces returned to the claimant's home and told him to collect his father's body as his father had been hanged for this alleged crime. The claimant's grandfather advised the claimant to leave Iraq or else he would be hanged too.
The Secretary of State rejected the claim for asylum, taking the view that if the security forces had intended to take reprisals against the claimant they would have done so when they had the opportunity to take him away from his house at the time of the visit that the claimant described. Secondly, the Secretary of State noted that the claimant had travelled to the UK through safe countries and did not claim asylum in those countries. The Secretary of State granted exceptional leave to remain until July 2006 in accordance with policy. The claimant did not appeal against the decision.
Fairly soon the claimant began to commit criminal offences. In June 2003, he was convicted of driving with excess alcohol and having no insurance and was given an 80-hour community punishment order. In July that of year, he was convicted of two counts of driving whilst disqualified and driving without insurance, also of breach of bail and breach of his community punishment order. He was sentenced to 3 months' detention in a Young Offenders Institution. In March 2004, he was convicted again of driving whilst disqualified and having no insurance and was sentenced to 4 months' detention in a Young Offenders Institution. In April of 2004, he was again convicted of two counts of driving whilst disqualified and convicted of breach of bail. There is a dispute about whether he was also convicted of two counts of theft. The claimant disputed that before the Asylum and Immigration Tribunal, though the tribunal on that occasion preferred the evidence of the Secretary of State. It is fair to say, as Mr Richards on behalf of the claimant did to me at the hearing, that the Secretary of State has never produced a certificate of conviction.
In November 2004, the claimant was again convicted of driving whilst disqualified and having no insurance and also of failing to stop. He was again sentenced to detention in a Young Offenders Institution, this time for 120 days. In August 2005, he was yet again convicted of driving whilst disqualified and having no insurance. He was also, according to the Secretary of State, convicted of possession of an offensive weapon. The claimant disputed that before the AIT, which again rejected his evidence, though no certificate of conviction has been produced. In February 2006 he was convicted of a relatively minor matter of breach of the supervision order and fined £20. In November 2007 he was convicted after a four-day trial, having pleaded not guilty, of dangerous driving. He was sentenced to 12 months' imprisonment and, in his sentencing remarks, HH Judge Barrett QC said:
"The circumstances of your driving, as the jury found and were satisfied so that they were sure, put many people in the community at grave risk of severe injury. Driving on the wrong side of the road at a time when schools were coming out from the end of a day, in a busy shopping area and around not one but a number of roundabouts, so that it was perchance rather than deliberate that the oncoming traffic was not involved in a head-on collision. Given your previous record and giving the appalling dangerous nature of your driving, pursued as you well knew by a police car, I have only one alternative in my judgment in terms of sentence, which is to impose a sentence of immediate custody."
At that time, the claimant was in a relationship with a young woman, Lorrayne. She was carrying their child. Following the claimant's imprisonment at the sentencing hearing on 14 December 2007, Lorrayne ended the relationship in a telephone conversation on 14 February 2008. Their son was born in July 2008. The claimant has never seen him and has had no contact with Lorrayne since February of 2008. The claimant said in his evidence to the AIT in July 2008 that Lorrayne's parents did not like him because of his offending. It seems, however, that Lorrayne's grandmother is more sympathetic. In late 2011 she told the claimant's solicitor that she spoke to the claimant on the telephone at least once a week and sends him photographs of his son. Lorrayne herself also told the solicitor that she was content for the claimant to see their son. The claimant has not seen him, as I have said. His bail curfew conditions prevent him travelling to Bolton, where Lorrayne and the boy live, by bus and Mr Richards told me the claimant cannot afford the rail fare. Mr Draper pointed out that the child could have been brought to see him if contact was valued by Lorrayne, and that had not happened. It also occurred to me that the claimant could afford albeit a smaller number of rail trips, at the same cost as a greater number of coach trips.
In January 2008, early in the prison sentence, the Secretary of State invited representations as to why the claimant should not be deported. The claimant appears at that stage to have relied on his family life with Lorrayne and prospective family life with his son as well as upon the situation in Iraq. Regarding the situation in Iraq, he said:
"Now that Saddam Hussain is gone I am afraid for my life to go back because of the area I used to live in. It is very unstable because of killings between Shia Muslims and Sunni Muslims and also the terrorists that are present in Iraq."
The representations were rejected and the Secretary of State decided to deport the claimant. He appealed to the AIT which summarised his evidence on danger in Iraq as follows:
"He asserted that his father assisted the previous regime and that he was responsible for the imprisonment of many Kurds. The Appellant had come from an area that was half Arab and half Kurd. He, however, left in 2002 and does not believe that he would be safe if he was returned to Iraq. He said that a bomb had recently exploded in Kirkuk and that his home area was not safe. His partner did not attend the hearing before us as they had now separated. His former partner had given birth to their son 'about three weeks ago' but he did not know his name. The Appellant had tried to make contact with his partner but her parents did not like him because 'I am in prison'. His attempts to make contact were unsuccessful and/or had been thwarted. He had had no contact with his partner since February of this year."
The tribunal dismissed his appeal, reasoning as follows:
"20. The essential basis of the Appellant's case is his asylum claim. This claim was refused in 2002 and was again refused within the context of a Reasons for Deportation letter dated 21st April 2008. We have to say that we too find little of any substance in the Appellant's asylum claim. His originally set out fears appear to have related to the former regime in Iraq. Unsurprisingly, perhaps, since the Appellant is said to have left that country in 2002. That regime is now no longer in place and the Appellant appears to have shifted the focus away from his original claims to fear as a consequence of his father's involvement with the former regime as opposed to persecution by it. The Appellant is clearly seeking to have it both ways. We take the clear view that his original asylum claim was entirely without merit...
To continue reading
Request your trial
-
R Za (Iraq) v The Secretary of State for the Home Department
...(Admin) (7) 18 May 2008 to 19 February 2010: R (A) v SSHD [2010] EWHC 625 (Admin) (8) May 2008 to September 2011: R (Mahmoud) v SSHD [2012] EWHC 2201 (Admin)." 13 In two of those cases, Bashir and A (Iraq) the Court merely decided that the Claimant's detention had become unlawful by the dat......
-
Zyad Alsaadon v The Secretary of State for the Home Department
...Murad (7) 18 May 2008 to 19 February 2010: R (A) v SSHD [2010] EWHC 625 (Admin) (8) May 2008 to September 2011: R (Mahmoud) v SSHD [2012] EWHC 2201 (Admin). 41 These decisions demonstrate that even with the benefit of now knowing how the situation in Iraq developed over those years, it has ......