R Murad v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Elisabeth Laing QC |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] EWHC 1112 (Admin) |
| Docket Number | Case No: CO/1273/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2012 |
[2012] EWHC 1112 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Elisabeth Laing QC
Case No: CO/1273/2010
Alexis Slatter (instructed by Asylum Aid) for the Claimant
Jonathan Auburn (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 9 March 2012
Introduction
The Claimant, Hisham Murad ("the Claimant"), applies for judicial review of a decision made on 8 November 2007, and maintained since then, to detain him. That decision has not been reconsidered by the Defendant, the Secretary of State for the Home Department ("the Secretary of State"), but the Claimant seems to have been granted bail on 25 August 2010 by the First-tier Tribunal ("the FTT"). It also seems that he has been at liberty at all times since that date.
Permission to apply for judicial review was refused on the papers by Lord Carlisle QC, sitting as a Deputy High Court Judge, on 25 August 2010. Permission to apply was granted, after an oral hearing, by Ingrid Simler QC, sitting as a Deputy High Court Judge, on 3 December 2010. She limited the grant of permission to what she called "the third Hardial Singh ground". In other words, the issue is whether the Claimant's detention was, or became, unlawful because it was, or became, or should have been, obvious to the Secretary of State that his deportation could not be effected within a reasonable period. That is a question for me to determine on the evidence.
If the Claimant's detention for any period was unlawful, the Secretary of State has committed the tort of false imprisonment. The Claimant is only entitled to more than nominal damages, however, if I am satisfied on the evidence that he would not have been detained if the Secretary of State had acted lawfully. So the Claimant's challenge to his detention potentially raises two sets of issues:
a. was he detained unlawfully, and if so, for what period or periods; and, if so,
b. would and could the Secretary of State, acting lawfully, have detained him, in any event, for any of that period, or for those periods.
Both sides agree that I should decide whether the Secretary of State could and would, acting lawfully, have detained the Claimant during any period of unlawful detention.
The Secretary of State has not put in any evidence in this case. The fact of detention is not in dispute, so it is for the Secretary of State to show that detention was lawful throughout. The absence of any direct evidence on some of the questions which are relevant to lawfulness and to damages means that I have had to draw inferences based on the documents, which are unexplained by any other evidence. That lack of evidence also means that where I have had any doubt about the meaning or effect of a document, I have not been able to resolve that doubt in favour of the Secretary of State.
The facts
(1) Potentially relevant policies of the Secretary of State
(a) Forced returns to Iraq
From at least 23 September 2003 onwards, the Secretary of State's policy was not to remove deportees to Southern Iraq, because of fears for the safety of their escorts. In a decision given on 30 November 2007, Mitting J said that "…there is no evidence of any kind as to when [the policy] might change" ( R (Bashir) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin), at paragraph 8). In MI and AO (Iraq) v Secretary of State for the Home Department [2010] EWHC (Admin) 764 (at paragraphs 55–59), Burnett J refers to the material about forced returns to Iraq which he had been shown, including that decision of Mitting J.
There was a marked, though relatively short-lived, improvement in security in Central and Southern Iraq in the second half of 2007, which continued into early 2008, and which Burnett J mentions at paragraph 57 of his judgment in MI. But no-one was removed to Central and Southern Iraq in 2007 or 2008. Burnett J noted that any such improvement would have to be sustained before arrangements for enforced removals could be made, and expressed his concern that there was no evidence before him from the Secretary of State explaining what view the Secretary of State held in 2008 about when, realistically, removals might be possible. The position in this case is the same.
Burnett J held that it should have been apparent to the Secretary of State from 1 July 2008 that MI's removal was not going to be possible within the overall period of 16 months which Burnett J had identified as a reasonable period of detention for MI. In AO's case, because AO had failed to co-operate in providing his bio-data, Burnett J held that an overall period of 18 months' detention would have been reasonable. He held that it should have been apparent to the Secretary of State by January 2008 that AO's removal was not going to be possible within a reasonable period. Neither was a case in which there was a fear of re-offending (judgment, paragraph 75).
(b) The Memorandum of Understanding
In January 2005, a Memorandum of Understanding ("MOU") was signed by the United Kingdom and Iraqi Governments. Under the MOU, charter flights carrying involuntary deportees from the United Kingdom to that part of Iraq which was controlled by the Kurdish Regional Government ("the KRG") began. These have continued. The KRG, however, would only accept deportees who had links with that region. The Claimant does not have any links with that region. No Iraqi Kurds, such as the Claimant, who have no links with that region, have been removed there. The MOU is mentioned by Langstaff J in R (A (Iraq)) v Secretary of State for the Home Department [2010] EWHC 625 (Admin), at paragraph 36. On the information I have seen in this case, the only other relevant result of MOU was one flight to Baghdad in October 2009, to which I refer further in paragraph 42, below.
(c) The "active war zones" policy
For part of the relevant period, the Secretary of State had an "active war zones" policy. This was withdrawn on 14 January 2008. It was set out in the Secretary of State's Operational Enforcement Manual. It was that "enforcement action" should not be taken against nationals from countries which were "currently active war zones".
The hearing in HH (Criminal record; deportation; "war zone") Iraq [2008] UKAIT 00051 (" HH") took place between 28 January and 1 February 2008. At the hearing, the Secretary of State had conceded that Iraq was then in a situation of "internal armed conflict" (determination, paragraph 11). The Asylum and Immigration Tribunal ("the AIT") held that, that being so, it was not open to the Secretary of State to argue that Iraq was not also, for the purpose of this policy, an "active war zone". The AIT also held that a notice of an intention to make a deportation order was "enforcement action" for the purpose of the policy (determination, paragraph 19). The policy had applied to the appellant in that case, and the decision to deport him (on 30 January 2007) was unlawful, because it had been taken in breach of that policy. At paragraph 25 of their determination, the AIT held that the first time a lawful decision to deport the appellant could have been taken was the date when the policy was withdrawn, 14 January 2008. The relevant decision had been taken a year earlier, and was an unlawful exercise of the discretion to deport. The decision would have to be taken afresh, on the basis of the current position.
The Court of Appeal dismissed the appeal of the Secretary of State ( [2009] EWCA Civ 727). The Secretary of State did not challenge the AIT's conclusion that the concession about internal armed conflict meant that Iraq was "an active war zone" for the purpose of the policy.
In MI and AO (Iraq), two Iraqi nationals challenged the lawfulness of their detention pending deportation. They were ethnic Kurds, but not from the area controlled by the KRG (judgment, paragraph 55). They argued that it was unlawful for the Secretary of State to take enforcement action against them, because in doing so, he had failed to have regard to a relevant consideration, that is, the active war zones policy. This, in turn, meant that their detention was unlawful.
The first step in the reasoning underlying their claims was that when, in each case, the Secretary of State had decided to make a deportation order, Iraq had been an active war zone. Burnett J noted the decision of the AIT in HH, and that the Secretary of State had not appealed the conclusion of the AIT that Iraq had been, at the material time, an active war zone (judgment paragraph 18). After reviewing in-country material and the Secretary of State's Operational Guidance note, Burnett J decided that Iraq was not, at the material time, an 'active war zone', with the result that the policy had not applied to the claimants (judgment, paragraphs 21–24). He therefore rejected the challenge (based on that policy) to the decisions to make deportation orders (and thus to detention) (judgment, paragraph 25). He also held that as the decisions to make deportation orders had been appealed to the AIT, and those appeals dismissed, it was not open to the claimants to mount a collateral attack, by judicial review, on those decisions, as a way of undermining the lawfulness of their detention (judgment, paragraphs 29–33). I have not been invited to depart from Burnett J's approach, and do not do so.
AO appealed to the Court of Appeal. The Court of Appeal dismissed his appeal [2010] EWCA Civ 1637. I...
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