R Tawanda Gibbs Mhlanga v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Singh |
| Judgment Date | 12 June 2012 |
| Neutral Citation | [2012] EWHC 1587 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 June 2012 |
| Docket Number | Case No: CO/7124/2011 |
[2012] EWHC 1587 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Singh
Case No: CO/7124/2011
Stephanie Harrison and Anthony Vaughan (instructed by Leigh Day & Co) for the Claimant
Colin Thomann (instructed by Treasury Solicitor) for the Defendant
Hearing date: 20th December 2011
Introduction
I heard the first part of this claim for judicial review on 20 December 2011. By agreement between the parties, as reflected in paragraph 3 of the agreed directions of 7 November 2011, that hearing was concerned only with the question whether the claimant's application for mandatory relief, requiring his release from detention, should be granted.
The claimant had been in detention since 15 October 2006. Thus by the time of the hearing the claimant had been in detention for over 5 years and 2 months.
At the end of the hearing I gave my decision that the claimant should be released from detention subject to certain conditions that I invited the Secretary of State to consider imposing on that release. I indicated that I would give my reasons for that order at the same time as giving my judgment in this case more generally. The adjourned hearing was listed for 13 June 2012. However, that hearing has become unnecessary in the light of a consent order dated 25 May 2012, to which I will return at the end of this judgment. Accordingly, I now set out in brief my reasons for granting the application for the claimant's release on 20 December 2011.
Factual Background
The claimant, who is a national of Zimbabwe, was born on 23 October 1978. He arrived in the United Kingdom on 10 May 2002 with his sister, Cleopatra Mhlanga. He told an immigration officer at Heathrow airport that he was transiting to Malaysia as an employee of a clothing company. Shortly after his port interview he claimed asylum. He was granted temporary admission and was given a screening interview date for the following day.
In fact the claimant decided not to attend that interview. He was listed as an absconder on 11 May 2002. His application for asylum was rejected by virtue of his non-compliance on 22 July 2003.
On 20 February 2005 the claimant was arrested on suspicion of wounding with intent to cause grievous bodily harm under section 18 of the Offences Against the Person Act 1861. The claimant had been out drinking with a friend and, on the way home, had become involved in a fight, which resulted in the claimant stabbing his victim in the thigh with a knife, which he said he had picked up shortly before the incident and which he had forgotten was still in his hand when he tackled his victim.
On 2 December 2005 he was acquitted by a jury of the charge under section 18. However he was convicted of the lesser offence of unlawful wounding under section 20 of the 1861 Act. He had earlier indicated a willingness to plead guilty to that lesser offence and he was given appropriate credit by the sentencing judge as a result.
On 12 January 2006 the claimant was sentenced to 21 months imprisonment. The sentencing judge had before him a pre-sentence report dated 30 December 2005, which assessed the claimant as posing a low likelihood of further offending although he did pose "some potential for harm". The OASyS report assessed the claimant as posing a medium to low risk. The sentencing judge unsurprisingly regarded the fact that the claimant was carrying a knife as a serious aggravating feature of his offence. However the judge also accepted that the claimant had not intended to use the knife; had not intended to cause the injuries which in fact occurred; was a man of previously good character; and had expressed remorse and contrition for his actions.
Following service of a decision to deport the claimant on 12 October 2006 he lodged an appeal against that decision on 18 December 2006. After a hearing before a panel of the then Asylum and Immigration Tribunal on 23 January 2007, the claimant's appeal was dismissed in a determination promulgated on 29 January 2007. The panel found that the claimant had sought to fabricate an account of events to seek to convince the tribunal that he should not be returned to Zimbabwe but that the claimant was not of any adverse interest to the authorities in Zimbabwe.
On 6 February 2007 the claimant's appeal rights were deemed to have been exhausted. The signed deportation order was served on the claimant on 22 March 2007.
On 15 October 2006 the claimant was detained under immigration powers to which I will refer later. On 22 March 2007 the claimant's detention was maintained on the basis that there was no reliable address for release; no known family to offer support; and the claimant was unlikely to comply with restrictions, as he had previously failed to report back to complete his asylum interview when given temporary admission, so that he was regarded as likely to abscond.
In September 2006, the Secretary of State undertook temporarily to defer further involuntary removals of failed asylum seekers to Zimbabwe.
At numerous points in time the claimant was offered the option of returning to Zimbabwe voluntarily, for example through the Facilitated Returns Scheme (FRS), which he refused to do. On 10 May 2010 the claimant's Zimbabwean passport expired.
On 14 October 2010 the new Minister for Immigration, Mr Damien Green MP, told Parliament that he was announcing on that day the Government's intention to end the suspension of enforced returns of failed asylum claimants to Zimbabwe.
On 11 March 2011 the claimant was seen in order to complete a bio-data form for an emergency travel document application. He was not happy to complete that form and took it away with him. On 15 April 2011 he was again seen by the UK Border Agency but refused to complete the bio-data form or assist with the emergency travel document process. He stated that he did not want to return to Zimbabwe.
Relevant Legislation
The claimant was detained under paragraph 2(3) of schedule 3 to the Immigration Act 1971, which provides:
"Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure...
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