R v Abdi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Davis |
| Judgment Date | 22 May 2009 |
| Neutral Citation | [2009] EWHC 1324 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 May 2009 |
| Docket Number | Case No: CO/2508/2008 |
[2009] EWHC 1324 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Honourable Mr Justice Davis
Case No: CO/2508/2008
Ms Laura Dubinsky (instructed by Birnberg Pierce Solicitors) appeared on behalf of the Claimant (Mr M Henderson for judgment)
Mr Robin Tam QC and Mr Jeremy Johnson (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
Hearing dates: 6 and 7 May 2009
Approved Judgment
Mr Justice Davis
Introduction
This case is the aftermath of a decision which I handed down on 19 December 2008 [2008] EWHC 3166 (Admin). By that decision I decided that a policy introduced by the Secretary of State for the Home Department in April 2006 with regard to the detention of foreign national prisoners was unlawful, but that such unlawful policy had not been causative of the detention or continued detention of the various claimants: whose detention I decided had been lawful. There is an appeal and proposed cross-appeal with regard to my previous decision. Having reaching my conclusion as to that policy, I dealt with the individual cases then before me on the facts. However the case of the claimant, Mr Abdi, was expressly adjourned for further argument on the facts and I heard the matter on 6 th and 7 th May 2009, an earlier substantive hearing date for various reasons not having proved practicable.
As before, Mr Tam QC and Mr Johnson appeared on behalf of the Secretary of State for the Home Department. Ms Dubinsky appeared for Mr Abdi.
In the interim period certain matters had come to light which caused Ms Dubinsky to seek to add to her grounds of claim, as I will come on to mention, and I gave her leave to do so. Further, in the light of my previous decision, the Secretary of State has since revised her policy as set out in Chapter 55 of the current Enforcement Instructions and Guidance, in order to meet the criticisms which I had made in my previous judgment. Ms Dubinsky claims that the new revised policy is still unlawful.
I will not repeat the background facts and matters to this case, as they are set out in my previous judgment.
The principal issues arising for decision now are these:
(1) Was the claimant, Mr Abdi, unlawfully detained by reason of the policy introduced in April 2006 and subsequently by reason of the revised policy introduced in 2009?
(2) Is the revised policy itself unlawful?
(3) In any event has the detention of the claimant, Mr Abdi, been (or alternatively is it at all events by now) unlawful, as contravening the principles set out in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704?
The New Policy
It is I think convenient to deal first with the validity of the revised policy. A description of the policies previously in place can be found in my earlier judgment, to which reference can be made.
At first sight, and indeed at second sight, the revised policy (which was revised on 22nd January 2009 and again on 9th March 2009) meets the criticisms which I had made of the policy as stated at 9th September 2008. I had found it objectionable in law that that policy in places stated with regard to foreign national prisoners that the starting presumption in favour of temporary admission or temporary release did not apply: see in particular paragraphs 117 and 210 of my previous judgment. Those offending passages are now all removed. Paragraph 55.1.1 and paragraph 55.1.2 and other places of the revised Enforcement Instructions Guidance expressly refer to the presumption in favour of early admission or release as applicable. The need for individual consideration and the essential elements of the Hardial Singh criteria are also all fully set out in substance and repeated at various stages in the revised Enforcement and Instructions Guidance.
Ms Dubinsky nevertheless submits that the latest revised policy still remains objectionable. She draws attention, for example, to paragraph 55.3.A which says that conviction for one or more of the more serious offences is:
“strongly indicative of the greatest risk of harm to the public and a high risk of absconding … and that in practice it is likely the conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate.”
Likewise, for example, in paragraph 55.3.2.11 it is stated:
“In cases involving serious offences on the list … a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling.”
The appended list itself (as revised) is now headed:
“Cases where release from immigration detention or at the end of custody would be unlikely.”
The list is a long one, ranging from offences of murder, serious sexual offences, robbery and drug dealing, but also, for example, extending to cases of harassment and to cruelty to or neglect of children. She also referred to other passages in the revised chapter.
I can see no valid basis for these criticisms of the revised policy. It is not illegitimate by way of guidance contained in the Enforcement and Instructions Guidance to give a steer towards a particular outcome in certain specified circumstances, and to advise on the weight to be given to certain factors. Indeed, to do so can promote consistency in decision-making. The point remains that the revised Enforcement and Instructions Guidance repeatedly stress the starting presumption in favour of early release, and that all reasonable alternatives to detention must be considered and that each case must be considered on its own merits: see, by way of example paragraphs 55.3.2.1, 55.3.2.6. I therefore reject this particular argument, which in fairness to Ms Dubinsky, was by no means at the forefront of her overall argument. I reject her submission that in reality the revised Enforcement and Instructions Guidance has the effect of precluding individual consideration in individual cases or that it is unduly prescriptive so as in effect to reintroduce a rebuttable presumption in favour of detention.
Ms Dubinsky also submitted that the revised chapter 55 of the Enforcement and Instructions Guidance was, in her words “an extraordinarily convoluted document”, which was so unclear, she said, as not to have the quality of law. I can accept that it is perhaps over detailed and repetitious in places and no doubt could, with profit, be more concise and more precise. But it is, in my view, of sufficient clarity to be valid and effective.
I should in any event add that the continuing detention reviews relating to Mr Abdi and made after the revised Enforcement and Instructions Guidance was introduced in 2009 clearly show that a presumption in favour of release was applied to him and that careful individual consideration was given to his case before the decisions to continue detention were made. So in causative terms the revised policy did not dictate the outcome.
Unlawful detention
The next question is whether the detention of Mr Abdi from November 2006 and continuing to the present-day was and is unlawful. That period is now some 30 months: on any view, a very long time indeed to be held in immigration detention.
The overall background is, as set out in my previous judgment, that Mr Abdi has a long history of criminal offending. His convictions variously include two counts of indecent assault, robbery, burglary, assault on a police officer and a drugs offence. A number of his offences were committed whilst he was on bail or on licence. It seems that for at least part of the time he had become addicted to crack cocaine. In the circumstances he was, as it seems to me, properly assessed both as posing a high risk of offending and also as posing a high risk of absconding. Further, bail applications in the interim had been refused by immigration judges.
Ms Dubinsky, for the purposes of her argument divided the detention into five separate periods: although obviously I also have to consider the totality. But her essential submissions were these:
(1) That in reality Mr Abdi was never likely to be removed to Somalia within a reasonable time;
(2) That detention now amounting to some 30 months is too long to be justifiable;
(3) That the Secretary of State had wrongly misstated or overstated alleged lack of co-operation on the part of Mr Abdi with a view to his being removed to Somalia;
(4) That Mr Abdi's detention was caused by the unlawful former policy or alternatively by a failure to follow the correct policy; in particular, in that other alternatives, such as tagging, were not properly explored or in that the Secretary of State did not direct herself that it was necessary that the claimant be kept in detention for the shortest period necessary.
The first period identified by Ms Dubinsky was 30th November 2006, the date of initial detention, to 31st March 2007, when a second and valid notice of intention to deport was served. The second period of detention was 1st April 2007 to 14th November 2007, when an application for reconsideration was granted. The third period was 15th November 2007 to 20th April 2008, when it was established that return to Somaliland within Somalia, which up until then the Home Office had been proposing, was not feasible. The fourth period was 21st April 2008 to 22nd January 2009, when the new revised policy was introduced. The final period was 23rd January 2009 to the present.
It is important for the purposes of aspects of the overall argument to note the litigation history. Notice of intention to deport (expressly referring to a court recommendation for...
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