R (Mohamed Bashir) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 30 November 2007 |
| Neutral Citation | [2007] EWHC 3017 (Admin) |
| Docket Number | CO/5936/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2007 |
[2007] EWHC 3017 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Mitting
CO/5936/2007
Mr David Jones (instructed by Popkin & Co Solicitors, London) appeared on behalf of the Claimant
Mr P Patel (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
The claimant is a citizen of Iraq and is now aged 24. He lived in Mosul. He is a Kurd. On 3rd June 2002, he arrived in the United Kingdom illegally and claimed asylum on the following day, claiming that he feared persecution under the then regime. On 23rd June 2003, he committed, together with another young man, an offence of street robbery. On 10th December 2003, he was convicted of robbery on his own plea of guilty and sentenced by HHJ Cole at Coventry Crown Court to three and a half years' detention. No pre-sentence report was prepared and it seems that the court had little information about him beyond the facts of the offence.
A recommendation for deportation was made. On 25th March 2005 the claimant completed the custodial part of his detention sentence and was then immediately detained by the immigration authorities under immigration powers. He has been in custody ever since. On 1st April 2005 a deportation order was served. He did not appeal against it. On 6th September 2005 a notice of a decision to make a deportation order was served and on 4th October 2005 he lodged an appeal against it. In the course of those proceedings he made two applications for bail, which were refused. On 15th December 2005 his appeal against deportation was dismissed. He represented himself. The immigration judge concluded that by reason of the offence which he had committed, it was conducive to the public good that he should be deported.
The immigration judge briefly considered conditions in the Mosul area of Iraq and concluded that there was no risk to the claimant as an individual but that there could be no guarantee of his safety because it was a fact of life "that the position in Iraq at present is far from satisfactory". Accordingly, he rejected the claimant's asylum claim and upheld the deportation order. He dealt with the human rights basis of the appeal in short order, giving explicit consideration only to an article 8 claim, but in fact dismissing human rights appeals under both Articles 3 and 8. He did not expressly consider what would now be called the humanitarian protection issue and which would then have fallen to be considered under Article 3 but it can be taken that he did not consider that there was any insuperable obstacle under Article 3 by reason of any lack of protection afforded to him by the Iraqi state should he return to Mosul.
His appeal rights were exhausted shortly after 15th December 2005. Ever since that time he has been detained in immigration detention. His detention has, as is required, been periodically reviewed. From 10th December 2005 onwards, he was periodically notified that it was decided to continue to detain him for the following reasons: first, there was reason to believe that he would fail to comply with conditions attached to the grant of temporary admission or release; secondly, he had failed to observe UK immigration laws; thirdly, he had entered the United Kingdom illegally; fourthly, he did not have enough close ties to make it likely that he would stay in one place.
When the grounds came to be reviewed by more senior officers, as is required after the elapse of several months, more detailed consideration was given to the grounds upon which his continued detention could be justified. They were put before immigration judges on several occasions when he applied for bail. The document of 22nd January 2007 is an example of such reasons. They include the following: that he had been convicted of a serious crime; that he had shown a blatant disregard for the immigration and criminal laws of the United Kingdom; that he had little incentive to remain in contact with the Home Office; that he had no known or proven ties in the United Kingdom; that he had offered no recognisance or suitable surety; and, significantly, that the Home Office was making arrangements for a flight to Iraq "in the near future". Therefore, "it is anticipated that deportation will take place within a reasonable timescale".
When refusing bail, the immigration judges gave as their reasons that there was a substantial ground for believing that the claimant would abscond, that he had failed to cooperate in the removal process and that his removal would take place "soon" (8th November 2006 and 2nd February 2007).
It is of some interest that in an internal document, prepared towards the beginning of this period of administrative detention on 28th March 2006, an official wrote as follows:
"I agree that we should now investigate whether Mr Bashir is willing to return on a voluntary basis to Iraq. If not, I think we will have to consider releasing on a restriction order. I agree that there is a risk that Mr Bashir will not comply with any conditions of temporary release given his behaviour in custody. I therefore propose that we maintain detention for a further month."
And:
"I further note that the subject has no previous record of absconding and has been detained under immigration service powers since 25th March 2005. The subject's removal from the United Kingdom is not in prospect within a reasonable timescale and prolonged detention cannot continue indefinitely."
The latter entry was dated 19th April 2006.
No attempt has ever been made to remove the claimant forcibly. The reason for that is explained in the witness statement of Hannah Honeyman, prepared for an earlier case of an Iraqi detainee heard by Beatson J, MMH and SRH v Secretary of State for the Home Department [2007] EWHC 2134 (Admin). She explained that those who were willing to return to Baghdad and do not need escorting can be returned on scheduled flights but those who would not cooperate with removal would ordinarily have to be escorted to their destination. In the case of removal to Iraq, that is not possible. Removals are effected either to Baghdad or, in the case of the three northern provinces controlled by the Kurdish regional government only, indirectly via Amman and then to Irbil. There is no possibility that this claimant could be deported via Amman to Irbil because he is not a native of one of the three provinces and the Kurdish authorities will only accept returnees who are natives of those provinces. Those who have to be returned via Baghdad require to be escorted, as Ms Honeyman explains. However, escorts are not currently provided. Her understanding, and the only evidence that I have, is that currently Foreign and Commonwealth advice is that FCO staff may not fly into Baghdad on scheduled aircraft. That is for reasons of their safety. The risks, as I understand it, to which they might be subjected are an attack on incoming or outgoing aircraft and the risk of harm, including kidnapping, within the airport compound at Baghdad. Accordingly, the Home Office has decided that it cannot task the escorts who would escort returning deportees to Baghdad for reasons of their safety.
Although the date upon which this policy came into force has not been ascertained, it is apparent from the report of AR (Iraq) [2004] UKIAT00273 that it was in force at least as early as 3rd September 2003. It remains in force. There is no evidence of any kind as to when it might change.
On 7th November 2007, the claimant's solicitors wrote to the Secretary of State inviting her to revoke the deportation order on the ground that the claimant was entitled to humanitarian protection under paragraph 339C of the Immigration Rules. That request was refused by a letter dated 26th November 2007 which pointed out, correctly, that pursuant to section 82(2)(k) and 92(2) of the Nationality, Immigration and Asylum Act 2002 an appeal against a refusal to revoke a deportation order could only be made out of the country. Mr Jones for the claimant has drawn my attention to proceedings before the Asylum and Immigration Tribunal in which it is intended that fresh country guidance should be given on humanitarian protection in the case of Iraq. Those proceedings are still not, as I understand it, fully underway and it is unlikely that they will result in a decision before January or February next year at the very earliest.
The claimant has throughout refused to return voluntarily to Iraq. The evidence which I have as to his reasons for that refusal is principally contained in the witness statement of his solicitor, Mustafa Patwa, made on 13th July 2007, in which he reports the claimant's views as follows:
"7. I then asked the claimant to explain why he was unable to return to Iraq at this time. He maintained the reasons given in his original claim. He came to the UK following his father's arrest for refusing to transfer his land to Arabs. He told me that since he has been in the UK he has only had contact with his brother Ahmed once. This was approximately ten months ago. He believes that his brother Ahmed may be in Mosul but living life as a fugitive. He has no idea about his parents or his sisters. He believes that his father has not been seen since his arrest in 2002 and may be dead.
8. I put it to the claimant that the situation for his family would have changed by now as a result of regime change. He refuted this. He emphasised that the same...
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