R (SK (Zimbabwe)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Keene,Lord Justice Longmore |
| Judgment Date | 06 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1204 |
| Docket Number | Case No: C4/2008/0483 & C4/2008/0486 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2008 |
[2008] EWCA Civ 1204
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE MUNBY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Keene
and LORD JUSTICE LONGMORE
Case No: C4/2008/0483 & C4/2008/0486
CO/10025/2007
Mr Andrew Nicol QC and Mr Alex Goodman (instructed by Lawrence Lupin) for the Appellant/Respondent
Mr Robin Tam QC and Mr Martin Chamberlain (instructed by The Treasury Solicitor) for the Respondent/Cross Appellant
Hearing dates : 28 July 2008
INTRODUCTION
With permission of the judge below the Secretary of State appeals against the judgment of Munby J given in the Administrative Court on 25 January 2008 by which he granted a declaration that the claimant had been unlawfully detained by the Secretary of State for various distinct periods amounting in all to some 19 months. The judge declined to make an order for the claimant's release, holding that his then current detention, from 21 January 2008, was lawful. The Secretary of State's appeal is directed against this declaration. The claimant also launched an appeal, again with permission of the judge below, against the refusal of an order for his release, but that appeal is now moot: on 13 June 2008 he was granted bail by an Immigration Judge for a period of two months.
However the claimant has also applied for leave to amend his claim form and notice of appeal in order to challenge as unlawful his detention during periods in which Munby J held he was in fact lawfully detained, and also the period between Munby J's judgment and the claimant's release on bail. This application is made in the light of matters recently disclosed by the Secretary of State. The Secretary of State does not resist the amendments, and it is in principle agreed between the parties that the new point which thereby falls to be determined should be remitted for decision by the High Court. I will explain these matters at the end of this judgment. The upshot is that this court is now only actively concerned with the Secretary of State's appeal against Munby J's declaration.
THE FACTS
I turn to the facts. The claimant is a national of Zimbabwe. On 30 October 2002 he arrived in the United Kingdom and was granted 6 months leave to enter as a visitor. Thereafter he was granted 12 months leave to remain as a student until 30 April 2004. After that date he remained in the United Kingdom without leave. On 9 December 2005 he was convicted on two counts of common assault and one count of sexual assault on a female, and on 24 January 2006 he was sentenced to twelve months imprisonment and ordered to be registered as a sex offender for five years. The sentencing judge made no recommendation for deportation pursuant to s.6 of the Immigration Act 1971. On 7 March 2006 the Secretary of State decided to make a deportation order against the claimant. On 8 March 2006, the next day, the claimant became entitled to be released from custody as regards his criminal sentence, but from that date on he was in detention at the direction of the Secretary of State pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971 which provides:
“Where notice has been given to a person in accordance with regulations under Schedule 18 to this Act of a decision to make a deportation order against him… he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
The letter giving the relevant authority under paragraph 2(2) shows that the basis of the decision to detain was that the claimant was an unlawful overstayer who was likely to abscond if released.
On 24 March 2006 the claimant claimed asylum. On 18 April 2006 he launched an appeal against the notice of intention to deport him. Thereafter, in April and May 2006, the Citizens Advice Bureau wrote to the Secretary of State contending that the claimant's continued detention was unlawful. The judge held (paragraph 19(xvi) of his judgment) that this contention was plainly based on the principles expounded by Woolf J as he then was in Hardial Singh [1984] 1 WLR 704, to which I will come in due course. These letters went unanswered. The judge described it as “shocking” that they were “simply ignored by the Secretary of State's minions”. On 19 May 2006 a bail application made by the claimant was refused. On 19 September 2006 his asylum application was refused. Two days later, on 21 September 2006, his appeals against the decision to deport and refusal of asylum (and also a refusal to grant him relief on human rights grounds) were heard in the Asylum Immigration Tribunal (the AIT), which declined to grant bail: Immigration Judge Chambers noted that the claimant had previously committed a Bail Act offence, his appeals appeared to be without merit, and “there is every likelihood that [the claimant] if granted bail, would abscond”, having no family ties in the United Kingdom.
On 4 October 2006 the AIT's decision dismissing all three of the claimant's appeals was promulgated. The AIT stated that “believing he had a poor case in resisting deportation he sought to bolster his prospects of success by inventing a false asylum claim”. The AIT accepted the Secretary of State's case as to the necessity for deportation in light of the gravity of the claimant's criminal offences. They stated that he was “assessed as presenting a medium risk of sexual or violent offending upon his release”.
A reconsideration of his appeals was ordered on 4 January 2007. However on 6 July 2007 the AIT held that there had been no material error of law in the original determination, which accordingly stood. On 24 August 2007 a deportation order was made (after which the relevant powers of detention was paragraph 2(3) of Schedule 3 to the Immigration Act 1971, but nothing turns on this).
At length on 12 November 2007, after letters before action went unanswered, judicial review papers were lodged alleging that the claimant's detention was unlawful, and seeking an order for his release together with a declaration and damages. Judicial review permission was granted on 20 November 2007, and the matter was duly heard by Munby J on 18 January 2008. He delivered judgment, as I have said, on 25 January 2008.
SUBMISSIONS BEFORE MUNBY J
In essence two submissions were advanced for the claimant before the judge. One was that whatever the position may have been when the claimant was first held in administrative detention under the Immigration Act, the time had long passed since the claimant was reasonably and properly detained, and so he was entitled to be released by force of the principles set out in Hardial Singh. The essential reasoning in that case is contained in Woolf J's judgment at page 706 as follows:
“Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained… pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.”
As Munby J noted (judgment paragraph 12) Lord Bingham observed in A & X v Secretary of State [2005] 2 AC 68 at paragraph 8 that this decision had never been questioned, and had been followed by the Privy Council in Tan Te Lam [1997] AC 97. In R (I) v Secretary of State [2003] INLR 196 at paragraph 46 Dyson LJ distilled what was said in Hardial Singh to these four propositions:
“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”
The other submission made to Munby J was that there had been a failure to carry out regular reviews as required by the Detention Centre Rules 2001 and a Home Office document called the Operations Enforcement Manual (“the Manual”). The Rules are subordinate legislation made under powers granted by the Immigration Act 1971. They include paragraph 9(1) as follows:
“Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.”
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