R Malek Hossein Abdollahi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] EWHC 878 (Admin) |
| Docket Number | Case No: CO/187/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 April 2012 |
[2012] EWHC 878 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
SITTING AT NOTTINGHAM COUNTY COURT
Nottingham Law Courts
60 Canal Street, Nottingham, NG1 7EL
The Honourable Mr Justice Beatson
Case No: CO/187/2011
Benjamin Hawkin (instructed by Fadiga & Co) for the Claimant
Susan Chan (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 23 February 2012
The claimant, Mr Malek Hossian Abdollahi, challenges the legality of his detention under the Immigration Act 1971 for 26 months between 18 May 2009 and 15 July 2011, when he was released on bail granted by the First Tier Tribunal. These proceedings were lodged on 10 January 2011. After Walker J refused permission on the papers, the application was renewed. On 5 July 2011, at an oral hearing, King J granted permission "on all grounds".
The claimant's case
In summary, Mr Hawkin, on behalf of the claimant, submitted that the claimant should not have been detained in the first place because at the time of his detention he had a pending asylum claim, his wife and children had been temporarily admitted to the United Kingdom and were in the country pursuing an appeal against the refusal of their claim for asylum. There was thus, he submitted, no prospect of removing the claimant from the United Kingdom within a reasonable period. It was only towards the end of the period of his detention that his appeal rights were exhausted. His appeal against deportation, and his human rights appeal, were dismissed on 4 November 2009, six months after the commencement of his period of immigration detention.
As to the claimant's wife and children, it was submitted that the defendant failed adequately to consider the claimant's rights under Article 8 of the European Convention of Human Rights. It was also submitted she failed to comply with her duty under section 55 of the Borders, Citizenship and Immigration Act 2009, to safeguard and promote the welfare of the claimant's children, or to follow the procedure set out in the Children and Family Process Instructions of the Criminal Casework Directorate (hereafter "CCD") of the UK Border Agency on splitting families for the purposes of detention and deportation (paragraph 3.1.1 and 3.5.5 are set out at [50] – [52]). In particular, it was submitted that the decision to detain the claimant but not his family was not taken by an official of the required seniority, after consultation with the Office of the Children's Champion (hereafter "OCC") and clearance at CCD Director level, or after reconsidering "the family issue". For these reasons, it was submitted that decision violated the first and second of the Hardial Singh [1984] 1 WLR 704 principles: see [43].
The claimant's case is that there was no evidence of absconding by him. Accordingly, the "risk of absconding" factor in the determination of what period of detention is "reasonable" could not apply so as to extend what would otherwise be a reasonable period of detention. Similarly, it was submitted that, since there is no evidence that he poses a risk to the public, this factor could not be regarded as extending what would otherwise be a reasonable period for detention. It was also argued that because the claimant's application for emergency travel documentation was mislaid for a period by the defendant (see [35]), the defendant did not comply with the fourth of the Hardial Singh principles, that she should act with "reasonable diligence and expedition" to effect removal.
The amended grounds and skeleton argument list the claimant's wife and three sons as the second to fifth claimants. However, King J made no order in relation to the application in Mr Hawkin's amended grounds to add them to the proceedings as claimants. King J's order refers only to the claimant. No step had been taken before the July 2011 hearing to make the proposed additional claimants parties to the proceedings. This might have been done by filing an appropriate application and paying the appropriate fee or, in the case of the three children, filing details of any litigation friend and a certificate of suitability. Nor has any such step been taken in the six months since King J's order. It was not suggested during that time that this issue had been the subject of decision by King J or that his order was mistaken in not including the wife and children. Accordingly, at the hearing I rejected Mr Hawkin's contention that there are five claimants and proceeded on the basis that the only parties to these proceedings are Mr Abdollahi and the Home Secretary. For these reasons, and because any claim by the family is contingent on him establishing the unlawfulness of his detention, I also rejected an application made after the hearing to add his wife and children as claimants. I did not consider they were prejudiced by this since success by the claimant in these proceedings would have left it open to the family to bring appropriate proceedings for any loss they have suffered.
The evidence
The evidence on behalf of the claimant consists of statements dated 23 June 2011 by Tahereh Vahdani, his wife, and Arash Abdollahi, his eldest son, now aged 16. The court was furnished with signed and dated copies of these statements only during the course of the hearing. There are also before me two statements by the claimant made in the context of his appeals to the Tribunal. One is dated 12 December 2008 and the other 11 November 2005. There are also letters from Dr Bertenshaw, a consultant paediatrician, dated 22 March 2011, about the claimant's middle son, Puria, Dr Aldwark, a cardiology registrar, dated 30 March 2011, about the claimant's wife's chest pain, and from Dr Scott, a GP at the Windmill Practice, dated 23 April 2011, about her depression.
Charles Foday, an Executive Officer in the Criminal Casework Directorate of the United Kingdom Border Agency, who was allocated the claimant's case on 3 February 2011, has made a statement, dated 7 February 2012, on behalf of the defendant.
Factual background
The claimant maintains that he first entered the United Kingdom in March 2000. He claimed asylum on 18 April that year, on the ground that if he was to return to Iran, he would be subject to persecution from the Iranian authorities because he refused to give up land in his name which the authorities said belonged to them. He maintained that, when he refused to do so, he was given an ultimatum to leave or face the consequences, arrested on charges of spying, and ill-treated. His application for asylum was refused on 11 December 2000, and on 3 January 2001 he lodged an appeal.
On 9 April 2001, while the claimant's appeal was still pending, he signed a disclaimer declaring that he wished to be assisted in returning to Iran under the Voluntary Assisted Returns Programme ("VARP"), and that he understood that by doing so, he would be withdrawing his application for asylum. In the VARP form, he gave as his reasons for wishing to return as he was missing his family and felt he needed to be with them. His initial statement stated that he returned because he was informed his family's life was in danger. But in his second statement he said that he had chosen to return because his father told him that the problem with the land had been solved and it would be safe to return. He returned to Iran on 26 April 2001.
The claimant's appeal was heard by an adjudicator on 4 July 2001. Notwithstanding the statement in his disclaimer that he would be withdrawing his asylum application (and thus his appeal), he was represented by counsel instructed by his then solicitors, the Derby Law Centre. It appears from the decision of the adjudicator that the claimant had chosen not to keep in touch with his then solicitors. The adjudicator found that, on the evidence, the claimant's account of persecution in Iran was credible, but that the reasons for that persecution did not fall within any of the Refugee Convention grounds. He, however, allowed the appeal on human rights grounds, stating that if the claimant was returned to Iran, he would be subjected to treatment in breach of Articles 3 and 5 of the European Convention. After the hearing of the appeal, the IAA office at Birmingham received a copy of the letter sent to the claimant giving notice of the hearing with a manuscript note indicating that the claimant had moved and gone to Iran.
The next material fact is that during October 2001, six months after his voluntary return to Iran, the claimant re-entered the United Kingdom. On 19 November 2001, in the light of the adjudicator's decision, he was granted exceptional leave to remain for four years, until 19 November 2005. It appears that his wife and children left Iran in 2002. A EURODAC check by the UK Border Agency revealed that his wife claimed asylum in Germany on 16 March 2003. On 8 September 2004, the claimant entered the United Kingdom at Dover. His wife and two children were found in the boot of his car by HM Customs at Dover. Notwithstanding his wife's application in Germany, responsibility for her asylum application reverted to the United Kingdom in May 2005, because of non-compliance with the timetables required by the Dublin II Regulation.
On 17 November 2005, two days before the claimant's four years exceptional leave to remain came to an end, he applied for indefinite leave to remain. That application was still pending when the claimant, now living at an address in Nottingham, applied...
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