R (SK (Zimbabwe)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 26 January 2008 |
| Neutral Citation | [2008] EWHC 98 (Admin) |
| Docket Number | Case No: CO/10025/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 January 2008 |
[2008] EWHC 98 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE MUNBY
Case No: CO/10025/2007
Mr Alex Goodman (instructed by Lawrence Lupin) for the Claimant
Mr Martin Chamberlain (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 18 January 2008
Mr Alex Goodman moves for the discharge from custody of SK. He asserts on behalf of the prisoner that he has been unlawfully detained by the Secretary of State for the Home Department for the best part of twenty-two months. I agree that SK has indeed been unlawfully detained for substantial periods. But he is at present lawfully detained. SK is accordingly entitled to damages for false imprisonment in the past but he is not entitled to be released.
I must return to this in due course but I have to say that the melancholy facts that have been exposed as a result of these proceedings are both shocking and scandalous. They are shocking even to those who still live in the shadow of the damning admission by a former Secretary of State that a great Department of State is 'unfit for purpose'. They are scandalous for what they expose as the seeming inability of that Department to comply not merely with the law but with the very rule of law itself.
None of this can in any way be extenuated – and very properly Mr Martin Chamberlain, who had the unenviable task of representing the Secretary of State, did not for a moment suggest otherwise – by the fact that SK is a foreign national, a convicted sex offender (the reason why he is being deported) and a failed asylum seeker whose claim to the protection of the Geneva Convention was properly found by the Secretary of State, upheld by an Immigration Judge on appeal, to be false.
SK will evoke sympathy in few hearts but everyone is protected by the law, by the rule of law. It matters not what a person has done. Outlawry has long been abolished. As Lord Scarman said in R v Secretary of State for the Home Department ex p Khawaja [1984] AC 74 at page 111:
“Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed “the black” in Sommersett's Case (1772) 20 StTr 1.”
The legal framework
The Secretary of State admits that she is detaining SK; indeed, she asserts the right to do so. It follows that the burden of justifying his detention lies upon the Secretary of State. As Lord Atkin said in Liversidge v Anderson [1942] AC 206 at page 245, in a passage cited with approval by Lord Scarman in Khawaja at page 110,
“in English law every imprisonment is prima facie unlawful and … it is for a person directing imprisonment to justify his act.”
The Secretary of State is not merely subject to the common law: Entick v Carrington (1765) 19 StTr 1029. She is also, by virtue of section 6 of the Human Rights Act 1998, bound to act in a manner compatible with SK's rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 5(1) of the Convention provides, so far as material for present purposes, as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
Mr Goodman places particular emphasis upon the phrases I have highlighted.
The Secretary of State's power to detain someone in SK's position is conferred by paragraph 2 of Schedule 3 to the Immigration Act 1971. Paragraph 2(2) permits such a person to be “detained under the authority of the Secretary of State pending the making of the deportation order” and paragraph 2(3) provides that once the deportation order is in force against such a person
“he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained … when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise.”
There are corresponding provisions in Schedule 2 relating to failed asylum seekers.
The powers conferred on the Secretary of State by Schedule 3 are not unfettered. As Davis J said in R (D) v Secretary of State for the Home Department, R (K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin) at para [32]:
“The power to detain asylum seekers is conferred, in wide terms, on the [Secretary of State] by the provisions of the Immigration Act 1971 and, in particular, the provisions of Schedule 2 of that Act. The width of the primary statutory provisions has, however, been limited by pronouncements of policy by the Government and by secondary legislation, in the form of the Detention Centre Rules 2001.”
The same applies to the powers conferred on the Secretary of State by Schedule 3 in relation to those liable to deportation.
Rule 9 of the Detention Centre Rules 2001, SI 2001/238, is headed 'Detention reviews and update of claim.' Rule 9(1) provides that:
“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.”
The Detention Centre Rules 2001 are supplemented, so far as is material for present purposes, by Chapter 38 of the Home Office's 'Operations Enforcement Manual', which is headed 'Detention and Temporary Release.' For present purposes the relevant provisions are as follows:
i) Paragraph 38.1 provides so far as material that:
“To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy” (emphasis added).
ii) Paragraph 38.3 provides so far as material that:
“Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.”
iii) Paragraph 38.5 provides that:
“Although the power in law to detain an illegal entrant rests with the IO, or the relevant non-warranted immigration caseworker under the authority of the Secretary of State, in practice, an officer of at least CIO rank, or a senior caseworker, must give authority. Detention must then be reviewed at regular intervals (see 38.8).”
iv) Paragraph 38.6 provides so far as material that:
“The Government stated in the 1998 White Paper that written reasons for detention should be given in all cases at the time of detention and thereafter at monthly intervals” (emphasis in original).
v) Paragraph 38.6.3 provides so far as material that:
“It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure that they are always justified and correctly stated. A copy of the form must be retained on the caseworking file” (emphasis in original).
vi) Paragraph 38.8 provides so far as material that:
“Continued detention … must be subject to administrative review at regular intervals. At each review robust and formally documented consideration should be given to the removability of the detainee.
… A formal and documented review of detention should be made after 24 hours by an Inspector and thereafter as directed at the 7, 14, 21 and 28 day points.
At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review (emphasis in original).
… In CCD an HEO reviews detention up to 2 months. An SEO/HMI reviews detention up to 4 months, the Assistant Director/Grade 7 up to 8 months, the Deputy Director up to 11 months and the Director at 12 months and over.”
The CCD, I should explain, is the Criminal Casework Directorate, which has had responsibility throughout for SK's case.
The legal framework – the case-law
I take as my starting point what Lord Bingham of Cornhill said in A v Secretary of State for the Home Department, X v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 at para [8]. Having referred to paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971, Lord Bingham continued:
“In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 it was held, in a decision which has never been questioned (and which was followed by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97), that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out. Thus there was no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wished to remove.”
Having observed that this ruling was wholly consistent with the obligations undertaken by the United Kingdom in the Convention (not of course at that time part of our domestic law), and having referred to Article 5, Lord Bingham continued:
“Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.”
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