R Mohammed Muqtaar v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice Elias,Lord Justice Lloyd
Judgment Date12 October 2012
Neutral Citation[2012] EWCA Civ 1270
Docket NumberCase No: C4/2011/3133

[2012] EWCA Civ 1270

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Timothy Corner QC

[2011] EWHC 2707 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

Lord Justice Lloyd

Lord Justice Richards

and

Lord Justice Elias

Case No: C4/2011/3133

Between:
The Queen on the application of Mohammed Muqtaar
Appellant
and
Secretary of State for the Home Department
Respondent

Raza Husain QC and Laura Dubinsky (instructed by Deighton Pierce Glynn) for the Appellant

Julie Anderson (instructed by The Treasury Solicitor) for the Respondent

Hearing dates : 12–13 July 2012

Lord Justice Richards

Introduction

1

This is yet another case concerning the lawfulness of immigration detention. The total length of the appellant's detention was just over 41 months. It is accepted that detention was lawful for the first 16 months or so but it is submitted that it became unlawful thereafter, on three broad grounds: (1) the periodic reviews of detention were flawed by public law errors, (2) breach of the principles in R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 ( "Hardial Singh"), and (3) breach of article 5 ECHR. The case was listed before us under the initials "MM" but it was accepted on the appellant's behalf at the hearing that there was no basis for the continued protection of his identity.

2

The case was listed for hearing together with Case C4/2010/2912, R (AO (Somalia)) v Secretary of State for the Home Department, a claim for judicial review which raised a common issue; but that case was taken out of the list shortly before the hearing because the claimant's solicitors were without instructions and had to withdraw.

The facts

3

The appellant is a 35 year old Somali national who came to the United Kingdom in 1999, having previously spent some years in the Netherlands. He made an unsuccessful application for asylum but was granted exceptional leave to remain until September 2004.

4

He has convictions for a number of criminal offences in this country. In November 2001 he was convicted of two counts of robbery for which he was sentenced to 2 years' imprisonment. In February 2004 he was convicted of motoring offences, resisting or obstructing a constable and failing to surrender to custody, for which he was subsequently sentenced to 4 months' imprisonment. In April 2004 he was convicted of possessing an offensive weapon and failing to surrender, for which he was sentenced to 4 months' imprisonment. In September 2004 he was convicted of taking a motor vehicle without consent and other offences, for which he was sentenced to 3 months' imprisonment. In December 2004 he was convicted of theft and a public order offence, for which he was sentenced to 1 day's imprisonment. In February 2005 he was convicted of theft and was again sentenced to 1 day's imprisonment. In May 2005 he was convicted of having a bladed article in a public place and failing to surrender to custody, for which he was sentenced to 8 weeks' imprisonment. In July 2005 he was convicted of offences of theft and failing to surrender to custody, for which he was sentenced to 6 weeks' imprisonment. In August 2005 he was convicted of driving with excess alcohol and other motoring offences, for which he was sentenced to 5 months' imprisonment. In December 2007 he was convicted of a public order offence and failing to surrender, for which he was sentenced to 4 1/2 months' imprisonment.

5

As was rightly observed on the appellant's behalf, his most serious offences were the two counts of robbery of which he was convicted in November 2001; his subsequent offending was of lower gravity but he was a chaotic recidivist.

6

On 29 January 2008 the appellant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused his application for indefinite leave to remain. On 1 February 2008 the appellant lodged an appeal against the decision to deport him.

7

From 8 February 2008, when the appellant had served half of his most recent custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of schedule 3 to the Immigration Act 1971 ("the 1971 Act") pending the making of the deportation order against him.

8

On 30 June 2008 the appellant's appeal against the decision to deport him was dismissed, and by 8 July 2008 his appeal rights were exhausted.

9

On 29 October 2008 the Secretary of State signed the deportation order, and the appellant was detained thereafter under paragraph 2(3) of schedule 3 to the 1971 Act pending his removal from the United Kingdom.

10

On 2 June 2009, removal directions were set for 17 June 2009. Those removal directions were cancelled on 16 June, however, on receipt of a rule 39 indication from the European Court of Human Rights. The court's letter referred to the fact that the appellant had lodged an application with the court on 15 May 2009, and stated:

"On 16 June 2009 the Acting President of the Chamber to which the case has been allocated decided … to indicate to your Government, under Rule 39 of the Rules of Court, that the applicant should not be deported to Somalia pending the Court's decision in M(2) v the United Kingdom. …"

The context within which that rule 39 indication was given is considered further below.

11

Applications for bail were refused by immigration judges on 9 November 2009, 21 April 2010 and 14 July 2010.

12

On 10 June 2010 the appellant made further representations against removal, which were treated as an application for revocation of the deportation order. A decision on that application was not made until November 2010, following the commencement of judicial review proceedings in respect of the failure to respond to the appellant's representations. On 17 November 2010 the Secretary of State refused to revoke the order.

13

On 19 November 2010 the appellant filed the present claim for judicial review, contending that his ongoing detention was unlawful.

14

On 25 November 2010 the appellant lodged an appeal against the refusal to revoke the deportation order. The hearing of that appeal was subsequently adjourned on a number of occasions.

15

On 17 June 2011 Hickinbottom J granted the appellant permission to apply for judicial review (pursuant to the claim filed on 19 November 2010) but refused an application for bail.

16

On 28 June 2011 the ECtHR handed down judgment in Sufi and Elmi v United Kingdom (Application nos. 8319/07 and 11449/07), which had become the lead cases before it on removals to Somalia. Again, the background to this is considered further below.

17

On 13 July 2011 the appellant was granted bail by an immigration judge, bringing to an end the period of immigration detention about which complaint is made.

18

On 22 July 2011, the day before the adjourned hearing of the appeal against the refusal to revoke the deportation order, the Secretary of State withdrew her refusal decision. No fresh decision on the application for revocation of the deportation order has yet been made.

19

The claim for judicial review in respect of the lawfulness of the appellant's detention was heard by Mr Timothy Corner QC, sitting as a deputy judge of the High Court, on 7 October 2011. His judgment dismissing the claim was handed down on 14 November 2011. Permission to appeal was subsequently granted by Sullivan LJ.

The judgment below

20

The essential nature of the appellant's case before the deputy judge was that the detention was in breach of the principles in Hardial Singh. Having considered the general approach he should follow, the deputy judge started his analysis of the facts with the risk of absconding and reoffending. He took the view that the risk of absconding was substantial: he referred to the appellant's convictions for failing to surrender, to the assessments made by judges who had refused applications for bail, and to other relevant matters. He was also of the view that the risk of reoffending was substantial and indeed that it had correctly been described as high: whilst accepting that the appellant's offending had become less serious and more intermittent as time went on, he said that the fact remained that while free the appellant was committing offences of such seriousness as to require him to be imprisoned, including robbery and public order offences.

21

The deputy judge then turned to consider whether there was a realistic prospect of deportation within a reasonable time, looking for this purpose at various points of time during the period of detention, including the ECtHR's issue of the rule 39 indication and the appellant's application for revocation of the deportation order. His conclusion up to the time of the ECtHR's judgment in Sufi and Elmi is summarised in the following passage (at para 128 of his judgment):

"Overall, I accept that as the period of detention becomes longer, so a greater degree of certainty and indeed proximity of removal is likely to be required. I accept also that there was no certainty that the litigation – the ECtHR proceedings and the application for revocation of the deportation order – would conclude in the Secretary of State's favour, and that it was not possible precisely to predict when they would conclude. However, I think that at all times it could be anticipated that those proceedings would be completed within a reasonable time, and once they were concluded, if which might be the case the result was in the Secretary of State's favour, then there was no other obstacle to deportation. I think in the circumstances of this case, and taking account...

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