R (A) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Longmore,Lord Justice Keene |
| Judgment Date | 30 July 2007 |
| Neutral Citation | [2007] EWCA Civ 804 |
| Docket Number | Case No: C4/2006/2680 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2007 |
[2007] EWCA Civ 804
Lord Justice Keene
Lord Justice Longmore and
Lord Justice Toulson
Case No: C4/2006/2680
C4/2006/2702
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Calvert-Smith J
C0/5328/2006
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Drabble QC and Graham Denholm (instructed by Community Law Clinic Solicitors) for the Appellant
Nigel Giffin QC (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 17–18 July 2007
Judgement
This case concerns the exercise by the Home Secretary of his power under the Immigration Act 1971, schedule 3, para 2(3) to make a detention order in support of a deportation order. On 7 December 2006 Calvert-Smith J gave judgment in judicial review proceedings brought by A. He held that A had been unlawfully detained from 4 December 2004 to 20 July 2006, but lawfully detained during the period between 21 July 2006 and the date of his judgment. He gave both parties leave to appeal. The Home Secretary contends that A's application for judicial review ought to have been dismissed. A contends that the judge ought to have held that his detention continued to be unlawful after 20 July 2006.
The facts
A was born in Mogadishu in Somalia on 8 December 1975. He left the area at the age of 16 and lived in Kenya for 2 years. In 1995 he entered the UK on a false Kenyan passport. His claimed date of entry was 7 May 1995.
On 24 May 1995 A claimed asylum. His application was rejected but he was granted exceptional leave to remain for an initial period of 12 months, which was later extended to 14 February 2000.
In February 1998 A raped and indecently assaulted a 13 year old girl. He was then aged 22. On 23 July 1998 he was convicted at Southwark Crown Court of rape and indecency with a child, for which he was sentenced to a total of 8 years' imprisonment.
The victim also came from the London Somalian community. The abuse happened at A's flat. According to the victim's statement, he told her that his friend downstairs had a gun and threatened to use it on her if she did not give him sex. He raped her anally. There was medical evidence of injuries which supported her account. He also forced her to perform oral sex on him by threatening her with a knife. It is some indication of the effect of A's crime on his victim that in March 2002 she expressed fears to a police officer for her future safety because she had heard rumours in the Somalian community that A had been released. She said that if that were true, she felt that she would have to leave the country. In fact, the rumour was incorrect.
On 17 December 1998 the Home Office served on A a notice to show cause why he should not be deported under s 3(5)(a). Under that provision a person who has no right of abode within the UK is liable to deportation if the Home Secretary deems his deportation to be conducive to the public good.
Home Office officials erroneously thought that A was due to be released from prison on 28 May 2002. In fact, that was the earliest date on which he could become eligible for consideration by the parole board for release on parole. From subsequent parole assessment reports it is plain that he had no realistic prospect of early release on parole.
On 21 May 2002 A was given notice that the Home Secretary had decided to make a deportation order against him, and on 27 May 2002 the Home Secretary ordered his detention under schedule 3, paragraph 2(2) pending the making of a deportation order.
On 2 July 2002 A appealed against the decision to make a deportation order and also made a fresh asylum claim.
In early 2003 A was interviewed, separately, by a probation officer at Maidstone prison and by a field probation officer for the purpose of parole assessment reports. Neither probation officer considered him to be suitable for parole. The prison probation officer noted that during his time in prison he had received 14 adjudications, 6 of which were for fighting. According to the Home Office Risk Matrix 2000, he was assessed as of high risk of sexual offending on release. Because he was continuing to deny guilt, he had not been on a sex offender treatment programme. The field probation officer recorded that throughout interview he continued to display values and attitudes which were entrenched and arrogant towards women generally, suggesting that he viewed his behaviour as “normalised” and “that all women would want to have sex with him”. He said that he did not know the victim's age and it never occurred to him to ask. The probation officer concluded that the attitudes A presented to him suggested that he would continue to pose a risk to women. He also boasted about being involved in fights with enemies he had made within the Somalian community. The probation officer expressed the opinion that if he were released on parole with few concrete plans, he would present a high a risk of sexual offending, and at least a medium risk of general offending, with a concordant high risk of potential physical harm to the public.
On 26 June 2003 A's outstanding asylum claim was refused. He appealed against the decision.
On 3 September 2003 A's sentence reached the point at which he would have been automatically entitled to release.
On 25 November 2003 A's appeals against the decision to make a deportation order and the refusal of his asylum and associated claims under Articles 2, 3 and 8 of the Human Rights Convention were dismissed by an Immigration Adjudicator. A's time for any further appeal expired on 4 December 2003.
On 5 April 2004 the Home Secretary made a deportation order under s 5(1). The order included a paragraph authorising A's detention under schedule 3, paragraph 2(3) until his removal. It was served on A on 19 April 2004.
Attempts were made to obtain from A the information necessary to obtain the travel documentation for arranging his removal, but those efforts were frustrated by A's refusal to cooperate. In November 2004 he refused a formal request to sign a document to the effect that he was prepared to return to Somalia voluntarily.
Calvert-Smith J found that until then A's detention was lawful, and there is no appeal against that finding. He found that A's detention became unlawful after 3 December 2004, that being the date of the first departmental review of his case after his formal refusal to cooperate in his removal.
Throughout the period of A's detention which the judge found to be unlawful, that is from 4 December 2004 to 20 July 2006, the Home Secretary was unable to enforce the deportation order because there was no carrier willing to take “enforced returns” to Somalia. Throughout the same period airlines would have been willing to carry A if he had signed a document expressing his consent. The situation changed in July 2006, when the government concluded an agreement with African Express Airlines which made enforced removals to Somalia once again possible. The judge found that A's detention became lawful once more from that time.
In recent years conditions in Somalia have been volatile. Carriers were willing to provide transport for enforced removals between February and August 2004. The evidence before the judge was that for some time after August 2004 the government considered it unrealistic to seek to persuade carriers to undertake enforced returns. It did not abandon hope of being able to re-establish a transport route, but it was not until around April 2006 that the prospects were thought sufficient to begin an active search for routes into Somalia.
On 3 occasions between November 2004 and October 2005 misleading statements were made on behalf of the Home Secretary about enforced removals to Somalia.
First, on 25 November 2004 the Minister of State wrote a letter to A's MP, stating that enforced removals to South Central Somalia were not currently taking place but that enforced removals to Somaliland remained practicable. This was no longer so. (Somaliland is an autonomous region in North West Somalia).
Secondly, in other litigation before Calvert-Smith J in 2005 a witness statement was filed on behalf of the Home Secretary which wrongly said that returns to Somaliland were taking place (and implied that this applied to enforced removals), and also wrongly said that the problems relating to removals to other areas of Somalia were in the process of being resolved through negotiations.
Thirdly, and of greatest concern in relation to A's detention, in September 2005 A applied to an immigration judge for bail. His application was refused by the judge on 11 October 2005 for reasons which included “Removal is imminent”. It is apparent from a note of the hearing that this information was given to the judge by the presenting officer. It was wrong.
On 28 June 2006 A issued the claim for judicial review which led to the judgment under appeal.
The statute
It is not disputed that A was liable to deportation under s 3(5) on the ground that the Home Secretary deemed his deportation to be conducive to the public good.
Section 5 (1) provides:
“Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom…”
The deportation order made against A on 5 April 2004...
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