R Mohammed Muqtaar v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeTimothy Corner, QC
Judgment Date14 November 2011
Neutral Citation[2011] EWHC 2707 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date14 November 2011
Docket NumberCase No: CO/12095/2010

[2011] EWHC 2707 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Timothy Corner Qc

(Sitting as a Deputy Judge of the High Court)

Case No: CO/12095/2010

Between:
Mr Mohammed Muqtaar
Claimant
and
Secretary of State for the Home Department
Defendant

David Jones (instructed by Pierce Glynn) for the Claimant

Jeremy Johnson QC (instructed by Treasury Solicitors) for the Defendant

Hearing date: 7 October 2011

Approved Judgment

Timothy Corner, QC

INTRODUCTION

1

This is a claim by Mr Mohammed Muqtaar for a declaration that the Defendant, the Secretary of State for the Home Department, acted unlawfully in continuing to detain him.

2

The Claimant was detained under immigration powers between 7 February 2008 and 13 July 2011, a period of three years, five months and seven days. The Claimant contends that his detention was unlawful by one or all of the following dates:

a) On or after 16 June 2009 when he secured a rule 39 indication from the European Court of Human Rights ("ECtHR") which effectively precluded his enforced removal;

b) On or immediately after the 16 June 2010 when he presented an application for the revocation of the deportation order signed against him to the Defendant;

c) At all points after the Defendant's revocation refusal on 17 November 2010, the Claimant then enjoying a further in – country right of appeal, which he exercised.

3

The handing down of this judgement has been delayed longer than I intended. The hearing took place on 7 October 2011. On 18 October 2011 I caused a draft judgement to be sent to the parties for typing corrections, with a view to handing down judgement on Friday 21 October. However, in his suggested corrections counsel for the Secretary of State referred to the Court of Appeal judgement in the case of Abdi v Secretary of State, [2011] EWCA Civ 242. That decision had not been drawn to my attention at the hearing before me, although I understand counsel for the Secretary of State had referred to the then pending appeal in his Summary Grounds submitted in this matter, and had referred to the decision itself in a skeleton argument submitted for an earlier hearing in this matter. Counsel for the Claimant, who had relied before me on the first instance decision, was unaware of the Court of Appeal's decision. In order to allow both parties to deal with the Court of Appeal's decision, I deferred handing down my judgement in order to allow written submissions to be made. I then amended the draft judgement previously sent to the parties in order to take account of the decision and the parties' further submissions.

FACTUAL BACKGROUND

4

The Claimant is a Somali national born on 1 February 1977 in Mogadishu and a member of the Darood clan. He lived in Mogadishu until 1992, when his family left Somalia and travelled to the Netherlands where they sought asylum. The Claimant was originally granted exceptional leave to remain in the Netherlands but refused further extensions due to his criminal convictions.

5

The Claimant came to the United Kingdom in 1999 and made an application for asylum not disclosing that he had lived in the Netherlands since 1992. The Claimant's application for asylum was refused by the Secretary of State on 22 September 2000 but the Claimant was granted exceptional leave to remain in the UK until 22 September 2004. His application for indefinite leave to remain in the UK made on the 5 December 2005 was refused due to his criminal convictions. He has 10 criminal convictions over the period from 16 November 2001 to 4 August 2005.

6

So far as the details of the convictions are concerned, on 16 November 2001 the Claimant was convicted of two counts of robbery and sentenced to 2 years imprisonment. On 2 February 2004, the Claimant was convicted of a number of offences including failing to surrender to custody and ultimately sentenced to 4 months imprisonment.

7

On 21 April 2004 the Claimant was convicted of possessing an offensive weapon and failing to surrender to custody and sentenced to 4 months imprisonment. On 3 September 2004 the Claimant was convicted of taking a motor vehicle without consent and other offences, and sentenced to 3 months imprisonment.

8

On 9 December 2004 the Claimant was convicted of theft and a public order offence and sentenced to one day in prison. On 10 February 2005 the Claimant was convicted of theft and sentenced to one day in prison.

9

On 9 May 2005 the Claimant was convicted of having a bladed article in a public place and failing to surrender to custody at the appointed time and sentenced to 8 weeks imprisonment. On 15 July 2005 the Claimant was convicted of offences of theft and failing to surrender to custody and sentenced to 6 weeks imprisonment. On 8 August 2005 the Claimant was convicted of drink-driving and other offences and sentenced to 5 months imprisonment.

10

On 17 December 2007 the Claimant was sentenced to 4 months and 14 days imprisonment for offences of using threatening, abusive insulting words or behaviour with intent to cause fear or provocation of violence and failing to surrender to custody.

11

I pause to note that as the Claimant points out, while his original conviction was for robbery, and attracting a two-year custodial sentence, the Secretary of State has indicated in various detention reviews that his other convictions were "primarily for driving offences, theft."

12

The Claimant served half the sentence given on 17 December 2007 and was eligible for release on 7 February 2008 allowing for time on remand. However, on 29 January 2008, the Secretary of State decided to commence deportation proceedings against the Claimant. The decision was served on the Claimant on the same day. The Claimant appealed.

13

On 7 February 2008 the Claimant was detained by the Secretary of State under immigration powers. At the beginning of his immigration detention he remained in HMP Peterborough, where he had concluded his prison term. In or around April/May 2008 he was transferred to HMP Manchester "Strangeways", a category A prison. Thereafter he remained detained among the ordinary prison population in Strangeways until April/May 2009. He was so detained when his deportation appeal fell to be heard.

14

The deportation appeal was heard on 13 June 2008. The Claimant's deportation appeal was dismissed with the decision promulgated on 25 June 2008. A deportation order was signed by the Secretary of State on 29 October 2008.

15

Some eight months later, on 2 June 2009, the Secretary of State set removal directions to take effect on17 June 2009. On 16 June 2009 and the Claimant was granted a rule 39 interim protection indication by the ECtHR. Enforcement action was suspended.

16

Between the 13 June 2008 and 19 July 2010 the Claimant applied for and was declined bail by the Tribunal on four occasions.

17

On 9 November 2009 bail was refused by an Immigration Judge for the following reasons:

"On the application before me today I am not satisfied the applicant will answer to any conditions that might be set. I acknowledge that he has now been in detention for a lengthy period but the most recent period of detention is on account of delays with his own application to the European Court of Human Rights. It is accepted that as things stand at present the Home Office are unable to remove the applicant but this is not due to any delay or maladministration on the part of the Home Office personnel. The applicant has a bad criminal history and has not shown himself capable of observing conditions involving reporting regularly to the authorities. Neither surety is accommodating the applicant or living close to the proposed accommodation. It has been submitted the applicant chose not to live with or communicate with the sureties when he arrived in the UK and there is little to lead one to conclude they will have any influence over his activities or movements. There were submissions about the applicant's education, voluntary work and changed drug habits but no documentary evidence of this has been produced."

18

Bail was also refused on 21 April 2010. The following reasons were given:

"The applicant has a very poor criminal record, including failures to report regularly to the authorities. I was not provided with any evidence to support the submissions that he has addressed the problems of addiction said to be the cause of his offences. He has no sureties today to confirm they would support him although it is said he could live with his father. He has used deception in the past and disregarded the laws of the UK. I cannot be satisfied he would comply with any bail conditions & not abscond & not commit further offences. I adopt the findings of the judge on 9/11/9 as to the delay in his removal."

19

On 10 June 2010 the Claimant made a fresh claim for asylum. He also made further Article 8 representations based on the disclosure of evidence that he has a 15-year-old son, Y, who is a Dutch citizen residing in the UK with his mother, and further that all of his immediate family members now live permanently in the UK.

20

Bail was refused on 14 July 2010. The following reasons were given:

"Counsel for the applicant has set out matters very clearly and in great detail. This application for bail was previously considered by Immigration Judge Charlton-Brown on 21 April 2010. Although situation has changed since that date her reasons for refusing bail I find [are] still relevant. In particular, she noted that against the backdrop of criminal activity and poor record of bail and with drug addiction difficulties that there...

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