R (SM) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 23 February 2011 |
| Neutral Citation | [2011] EWHC 338 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7410/2010 |
| Date | 23 February 2011 |
[2011] EWHC 338 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Before : THE HONOURABLE MR JUSTICE BEATSON
Case No: CO/7410/2010
Mr de Mello (instructed by JM Wilson Solicitors) for the Claimant
Miss Candlin (instructed by The Treasury Solicitor) for the Defendant
Mr Muman (instructed by JM Wilson Solicitors) for the Interested Party
Hearing dates: 13 January 2011
February 2011
Mr Justice BeatsonMr Justice Beatson:
Introduction:
In this application for judicial review and habeas corpus lodged on 7 July 2010 the Claimant challenges the legality of his ongoing detention. He now does so on three grounds. The first is that no removal directions can be issued under paragraph 1(1)(a) of Schedule 3 to the Immigration Act 1971 (the "1971 Act"). This is because the evidence is that Bosnia and Herzegovina will not accept the Claimant, who is a Roma, as its national, and because the defendant has not established that there is reason to believe that he will be admitted to Bosnia and Herzegovina. Secondly, it is submitted on his behalf that the defendant is unable to show with a high degree of certainty that the Claimant will abscond or re-offend if he is bailed to reside with his family.
The third ground concerns the Claimant's eleven year old son FM, an Interested Party to these proceedings. It is submitted on behalf of both the Claimant and FM that the monthly reviews of the Claimant's detention were defective after FM was granted British citizenship on 8 May 2010 because they failed to have regard to the fact that the family would no longer be deported as one unit. It is also submitted that the defendant has failed to take into account or attach appropriate weight pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009 (the "2009 Act") to the issue of whether the Claimant's detention would safeguard or promote FM's welfare and best interests.
Procedural history and evidence:
The history of these proceedings is as follows. On 8 July 2010 I adjourned an application for urgent interim relief to enable the defendant to provide an update. On 30 July Foskett J refused that application but ordered the matter to be listed for a rolled-up hearing on the first available date after 1 October.
The matter came before me on 11 November 2010 but the parties had not prepared the papers and material as though for a full substantive hearing whereas they should do where a rolled-up hearing is ordered. Those representing the Claimant prepared the bundle very shortly before the hearing without consulting the defendant. The documentation was incomplete and there were other difficulties. I concluded that it was not possible to deal with the substantive application but granted permission, save on a ground based on Directive 2008/115/EC, "the Return Directive", (on which see [75] – [78]). I made directions about the documentary material and evidence to be put before the court by the defendant and adjourned the substantive hearing.
At the resumed hearing on 13 January 2011 the evidence before me consisted of the statements of: the Claimant, dated 7 July 2010 and 10 January 2011; Sanjeev Sharma of JM Wilson Solicitors, and Valentina Crvenskovska, a Bosnian interpreter, both dated 29 July 2010; FM, the Interested Party, dated 13 July 2010; and MM, the Claimant's wife, dated 10 January 2011. There are also reports by Lisa Davies, a forensic psychologist (dated 4 and 6 January 2011) and by Sarah Robbins, an Independent Social Worker (4 January 2011). The Claimant's solicitors informed the Treasury Solicitors that they had instructed two experts in a letter dated 15 December 2010 because of the defendant's failure to investigate the issues on which the Claimant had instructed the experts. The Claimant also relied on an initial assessment record dated 30 September 2010 by Dudley Social Services and Parole Assessment Reports dated 21 September 2007 and 7 August 2008.
On behalf of the defendant there is a statement of Timothy Afolabi, an Executive Officer in the United Kingdom Border Agency's Criminal Casework Directorate (hereafter "the Criminal Casework Directorate") responsible for securing travel documents from the authorities of other countries for foreign nationals in the United Kingdom dated 22 December 2010. There are also copies of the United Kingdom Border Agency's (the "UK Border Agency") monthly reviews and progress reports of the Claimant's detention between 23 June 2009 and 7 January 2011.
After the hearing, on 1 February, the Supreme Court gave its judgment in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. That case involved the effect of a removal of a non-citizen parent where a child who is a citizen of the United Kingdom would also have to leave. I was asked by the solicitors acting for the Claimant and the Interested Party whether I required submissions in the light of the decision. I gave the parties permission to make submissions but did not require them. Only Mr Muman, on behalf of the Interested Party, made submissions.
A letter dated 9 February 2011 from the Treasury Solicitor's Department stated that the defendant "has not yet had time to consider the full implications of the judgment and how it is likely to impact on current decision-making processes" and that in the circumstances she did "not believe it would be helpful to put together a hasty response to the Interested Party's submissions". The letter also stated that if the Claimant and his family wish to make submissions in relation to their cases in the light of ZH (Tanzania) the proper approach would be for them to make written submissions asking for a revocation of the deportation orders and that the Secretary of State would then consider them.
Factual background
The Claimant claims to be a national of Bosnia and Herzegovina of Roma origin. He entered the United Kingdom on 6 November 1998 using a false Slovenian passport and claimed asylum. His son FM was born on 10 July 1999 and is now a British citizen. On 20 November 1999 the Claimant's application for asylum was refused, and on 31 May 2000 his appeal against that refusal was dismissed. Between 2000 and 2004 he and his wife had four other children.
On 14 May 2004 the Claimant was convicted at Snaresbrook Crown Court of wounding with intent to cause grievous bodily harm and threatening to kill. He had attacked his victim with a knife, cut his throat causing a wound of over 10 centimetres which was deep at the centre. The sentencing judge stated that it was only good fortune which saved his victim's life. He sentenced the Claimant to a total of 8 years imprisonment. On 20 June 2006 the Claimant's wife, MM, applied for Indefinite Leave to Remain ("ILR") for herself and the children. That application was refused on 23 August 2006 because she had an unspent conviction for theft.
A notice of a decision to make a deportation order was issued to the Claimant on 30 April 2007 but withdrawn on 21 January 2008 because not all relevant factors had been considered when the notice was issued. The Claimant's conduct on 16 September 2008 when he smashed up his cell at HMP Mount and tried to set fire to it was ascribed by prison staff to frustration by the immigration decision hanging over him.
The defendant issued a fresh notice of a decision to make a deportation order in respect of the Claimant on 8 October 2008. On 13 October the Claimant lodged an appeal against that notice. On 20 October a notice of a decision to make a deportation order was issued to the Claimant's wife and children. The Claimant's period of imprisonment for the offences for which he was convicted ended on 16 April 2009. He had previously applied for and (on 20 October 2008) been refused parole.
(i) Efforts to obtain documents
Before the end of his period of imprisonment the defendant started to put in place arrangements to deport the Claimant. Arrangements were made for an emergency travel document interview with the Bosnian authorities on 5 December 2008 but the interview did not occur because the application forms were not completed by the Claimant. He did not do so until 27 January 2009. Before then, on 19 January, his and his family's appeals against deportation were dismissed. The application for an emergency travel document was submitted to the Bosnian authorities on 3 February.
It was submitted that this application did not comply with Article 7 of the EU Returns Agreement with Bosnia and Herzegovina, 2007/820/EU. That agreement requires Bosnia and Herzegovina to readmit persons who are proved or may be validly assumed on the basis of prima facie evidence furnished to be nationals of Bosnia and Herzegovina. Article 7 requires the application to contain "to the extent possible" the names, date of birth, and where possible the place of birth, and the last place of residence, and, where appropriate particulars of minor unmarried children and spouses, an indication of the means with which proof or prima facie evidence of nationality or transit will be provided, and a photograph of the person to be readmitted.
After the Claimant's period of imprisonment ended on 16 April 2009 he was detained under the 1971 Act and remained at HMP The Mount. Deportation orders in respect of him and his family were signed on 15 June. During the summer of 2009 two applications for bail were refused. On the second...
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