R Mh v Sshd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Etherton,Lord Justice Longmore |
| Judgment Date | 14 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1112 |
| Docket Number | Case No: C4/2009/2397 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2010 |
[2010] EWCA Civ 1112
Mr Justice Sales
Before: Lord Justice Longmore
Lord Justice Richards
and
Lord Justice Etherton
Case No: C4/2009/2397
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Edward Fitzgerald QC and Laura Dubinsky (instructed by Refugee & Migrant Justice) for the Appellant
Alan Payne (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 17–18 June 2010
Lord Justice Richards:
This is the latest in a line of cases going back to R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 concerning the length of time for which it is lawful to detain a person pending deportation. In the present case the claimant was detained for a total of 40 months before he finally secured his release on bail. Sales J held that the detention had been lawful for all but the last two months of that period. On the claimant's appeal, brought with permission granted by the judge, it is contended that the detention became unlawful much earlier than that. The claimant seeks declaratory relief and damages for false imprisonment in respect of the period of unlawful detention.
The issues in the appeal are heavily dependent upon the particular facts of the case, which were the subject of very detailed and careful consideration by Sales J. Although I shall give an abbreviated account of the relevant facts, I regret that an exposition of some length is needed in order to do justice to the judgment below and the submissions of counsel.
The claimant's background circumstances
The claimant is a 31 year old national of Somalia, born in the area now known as Somaliland. He arrived in the United Kingdom in 1994, at the age of 15, and was granted limited leave to remain here with his mother. He was subsequently granted further leave to remain as her dependant until June 1997. He remained thereafter without leave. His mother had made an application for an extension of leave, but unbeknown to him he had not been included in that application.
The claimant's subsequent history up to the time when he was served with notice of intention to deport is set out in the following passages taken from the judgment of Sales J:
“16. On 4 April 1996 the Claimant received his first criminal conviction, a caution for shoplifting. On 17 October 1996 he was sentenced to 30 months detention for robbery. He developed an alcohol abuse problem.
…
18. Upon his release from custody, the Claimant found himself in difficult circumstances. The absence of authorisation for him to remain in the UK meant that he did not have access to social assistance and benefits. This seems to have increased the risk of the Claimant re-offending.
19. The Claimant received further custodial sentences. On 13 March 1998 he was sentenced to three months detention for possession of a bladed article in a public place and shoplifting. On 30 September 1998 he was sentenced to six weeks detention for taking a vehicle without consent and driving dangerously. On 18 December 1998 he was sentenced to eight months detention for burglary and theft. On 7 April 1999 he was sentenced to 21 days custody for threatening behaviour, failure to surrender to bail, shoplifting and threatening to damage property. On 18 June 1999 he was sentenced to three years detention for robbery. On 24 January 2001 he was sentenced to six months detention for burglary and theft of about £5 from a café, together with 503 days for breach of the licence conditions under which he had been released from his last offence.
20. By Home Office letter dated 20 November 2001 the Claimant was informed that the Secretary of State was, in light of his offending, considering his deportation to Somalia and inviting representations from him on that issue. The solicitors then representing the Claimant (Stanley & Co) responded by letter dated 18 December 2001, in which they made representations against his deportation. …
21. It appears that no decision was taken to deport the Claimant at this stage. By letter of 21 May 2002 to the Home Office, Stanley & Co pressed for the Claimant's application for asylum to be considered as soon as possible, and pointed out that he was having to sleep rough as his welfare benefits had been suspended due to his inability to provide his social security office with proof of his immigration status. They asked for the Claimant to be granted indefinite leave to remain in the UK. By letters dated 30 May 2002, 4 November 2002 and 28 January 2003 Stanley & Co continued to press for a decision to be made on his application. The material before the court did not contain any reply to these letters. Consideration was given within the Home Office to a proposal that the Claimant be granted leave to remain in the UK for a further three years, but it was not approved.
22. Instead, shortly after the Claimant's release from custody in respect of his latest offence, he committed an offence of theft by stealing a watch from a jacket on 17 August 2003 (for which he was arrested and released on bail) and an offence of burglary on 29 August 2003, while on bail, involving entry to a hotel room and theft of a camera and suitcase. He pleaded guilty to these offences and was sentenced in the Crown Court on 14 January 2004 to a total of 15 months imprisonment.
…
26. Under the sentence imposed in January 2004, the Claimant was due to be released on 16 April 2004. The question therefore arose whether the Claimant should then be deported. On 9 April 2004 the Claimant was served with notice that the Secretary of State had decided that it was conducive to the public good to make a deportation order against him, that he proposed to give directions for the Claimant's removal to Somalia and informing him of his right of appeal against the decision.”
An appeal against the decision to make a deportation order was dismissed by an immigration judge on 25 February 2005. Sales J referred to the immigration judge's determination when rejecting a submission that the claimant's offending was comparatively minor and excusable. The immigration judge, having heard the claimant give evidence, found that he was unlikely to desist from his pattern of offending, took the view that the two offences of robbery were serious offences, also expressed concern about the circumstances of the offence of possession of a bladed article, and attached significance to the recent offences of burglary and theft as indicating the claimant's continuing approach to crime. Sales J saw no reason to doubt the immigration judge's assessment of the gravity of the offences.
The feasibility of returns to Somaliland
Because of its central relevance to the history of the claimant's immigration detention, Sales J considered the general position concerning returns to Somaliland before examining the claimant's individual history. I shall follow the same course.
Sales J began by summarising matters as follows:
“30. It is necessary to distinguish between enforced returns and voluntary returns to Somaliland. An enforced return is a return effected without the Claimant's co-operation. A voluntary return is a return effected with the Claimant's co-operation in relation to the means used to implement his removal and transportation to Somaliland. In both cases, the consent of the local authorities in Somaliland is required. The availability of these two types of return has varied over time.
32. On 4 July 2003 a Memorandum of Understanding was signed by the UK Government and the Somaliland authorities dealing with removals from the UK to Somaliland (“the 2003 MOU”). In order to secure their agreement to the return of an individual to Somaliland, the Somaliland authorities required as much information about the individual as possible, including regarding the clan history of the individual (cumulatively referred to as ‘bio-data’ in the papers), in order to allow them to be satisfied that the individual had the requisite degree of connection with Somaliland to warrant return there. Their usual position is that to be accepted for return to Somaliland an individual needs to come from a clan with a sizeable representation there, and/or to have been born there (or have parents who were born there) and/or to have family currently residing there. The first stage of the information gathering process under the 2003 MOU involved the completion of a bio-data form. Such a form would be forwarded to the Somaliland authorities, who would have a period of time under the MOU in which to confirm whether or not an individual was acceptable for return there. The evidence is that the scrutiny applied by the Somaliland authorities is stringent, and that the necessary bio-data is difficult to obtain without the co-operation of the individual concerned.
32. The position adopted by the Secretary of State … was that the 2003 MOU provided a real prospect of removal of the Claimant to Somaliland, which had been thwarted by the failure of the Claimant to co-operate in the provision of sufficient bio-data to be put to the Somaliland authorities to persuade them to accept his return to Somaliland. The Secretary of State's position in May 2007 was that the 2003 MOU meant that there was ‘a real prospect of the Claimant being removed to Somaliland within a reasonable timescale’, so that the Claimant remained properly detained at that time ….”
Sales J then referred to R (A) v Secretary of State for...
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