R (Vovk) v Secretary of State for the Home Department; R (Datta) Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CALVERT SMITH |
| Judgment Date | 13 December 2006 |
| Neutral Citation | [2006] EWHC 3386 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 December 2006 |
| Docket Number | >CO/1602/2006 |
[2006] EWHC 3386 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Calvert Smith
>CO/1602/2006
CO/2687/2006
MR RICK SCANNELL (instructed by Messrs Irving & Co) appeared on behalf of the CLAIMANTS
MS JENNI RICHARDS (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT for the judgment. MR PARISHIL PATEL appeared at the hearing.
(As Approved by the Court
These two cases have been heard together since the claims involved similar considerations of law. Mr Vovk seeks a declaration that his detention by the defendant was unlawful and damages, following the grant of permission to bring the claim by the Single Judge. Mr Datta's application for permission to claim for judicial review was adjourned to be heard with the claim of Mr Vovk. He too seeks a declaration that his detention by the defendant was unlawful.
The history of the case is as follows. Mr Vovk is an Ukrainian national. He entered the United Kingdom on 14th July 2002 with an employment entry clearance visa valid until 30th November 2002. He took employment using a false identity. On 1st November 2005, whilst unlawfully in the United Kingdom, he was convicted of using a false instrument at Chichester Magistrates' Court and sentenced to 28 days' imprisonment. The court also recommended him for deportation. Soon after his arrival in prison, he was served with a Release Dates Notification Slip. This document, which the court was informed is handed to every prisoner on the day or the day after his arrival in at HMP Lewes, records the start of the sentence date, the expiry of the sentence date and, importantly from the point of view of these proceedings, the unconditional release date. In Mr Vovk's case this was set at 8th November 2005.
On 8th November 2005 Mr Vovk was not released and he continued to be held in prison until his eventual departure from this country in March 2006. On 22nd December 2005, six weeks later, the defendant sent the Governor at HMP Lewes a letter enclosing documents and asking the Governor to inform Mr Vovk of his decision to make a deportation, to authorise Mr Vovk's detention pending deportation and stating reasons for the detention, enclosing appeal papers, a blank disclaimer form and a blank confirmation of conveyance form.
On 16th January 2006, the documents reveal that the contents of the letter of 22nd December 2005 were conveyed to Mr Vovk and on that day Mr Vovk signed a disclaimer of his appeal rights against the notice of intention to deport and stated his intention to return to the Ukraine. On 15th February 2006 his detention was reviewed once again and the decision was made that he remain in detention. On 22nd February he issued proceedings for judicial review but since then he has in fact, as he has always wanted to, been deported to the Ukraine. That took place on 1st March 2006.
He submits that his detention at HMP Lewes between 8th November 2005 and 22nd December 2005 was unlawful. He alleges that the unlawfulness follows from the failure of the defendant to take a decision as to whether the claimant should be detained at or before the day on which that detention began. He submits that that unlawfulness is based upon the history disclosed by the documents, the defendant's admitted failure to follow his own policy, concessions made in cases indistinguishable on their facts from this case by the defendant in other cases, the domestic case law and Article 5 of the European Convention on Human Rights, in particular Article 5(1)(f).
Mr Datta is a national of Bangladesh. It is unclear and matters little for the purposes of this case when exactly he arrived in this country. It was either apparently August 2002 or January 2003. Whenever it was, he arrived illegally. On 19th June 2003 he was arrested during a visit to a restaurant where he was working illegally and served with illegal entrant papers. He then claimed asylum. His claim was refused on 25th June 2003 and his appeal against that refusal was dismissed on 10th November 2003. Thereafter he remained illegally in the United Kingdom.
On 30th October 2005, Mr Datta was arrested whilst attempting to leave the United Kingdom for Canada. He was using a false passport. He was charged and subsequently pleaded guilty to using a false instrument. On 15th December 2005, he was sentenced to a term of eight months' imprisonment and the court recommended his deportation. As in the previous case, although the original document has not survived, he would have been handed a Release Dates Notification Slip and the copy that has been generated for the purposes of these proceedings records that the start of his sentence date was 15th September 2005, that his sentence expiry date was 29th June 2006 but that his unconditional release date was 28th February 2006. That allowed for a number of days spent on remand or in police custody prior to his conviction.
At the hearing I enquired of counsel how it was, within the prison system, that a prisoner was informed that he was not to be released on the unconditional release date I have just referred to. I was informed that at HMP Lewes, having been served at the beginning of his sentence with the document to which I have referred, in cases like these, where there is a court recommendation for deportation in place, the prisoner is served with a copy of the same or perhaps a similar form stamped to the effect that he is now detained pursuant to that recommendation for deportation. Although neither form could be found in the cases of Mr Vovk or Mr Datta, I assumed for the purposes of the hearing, without objection, that that procedure had been followed in both their cases.
On 7th March, solicitors acting for Mr Datta wrote to the defendant, since they had heard that the defendant intended to make a deportation order, asking for the reasons for the continued detention of their client. Perhaps significantly, it was not until the following day that the defendant sent to Mr Datta a letter setting out his authority to detain him and giving reasons for that detention. There has since been an appeal against that intention to deport and that Mr Datta remains in this country and has since been granted bail by, as I understand it, an immigration judge as recently as 20th September 2006, so that, unlike Mr Vovk, he remains in this country. Mr Datta's claim is based on the period between 28th February 2006, when normally he would have been released from prison, and 8th March, when the Secretary of State issued his authority to detain and gave reasons for it.
As first presented in the claim forms and argued on both sides in the grounds for review and the summary grounds for opposing the claim, the point at issue seemed to concern the alleged failure of the defendant to give reasons for the detention or to explain the mechanisms by which the claimant could challenge the decision to detain him. However, as presented before the court, the principal, and really the only, issue was the question of whether the fact that the defendant had not, as was conceded, taken any decision prior to the detention of the two claimants meant that that detention prior to that decision was necessarily, at least in the case of those two claimants, unlawful. The failures to give reasons or to inform the claimants of their rights to legal recourse were relied on to prove that indeed there had been no decision, rather than as free standing grounds themselves. It may have been difficult to argue in either case that the claimants, both of whom were illegally in the country and had very recently been recommended for deportation by a criminal court, would not actually know why they were being detained or, since they both had the benefit of legal representation, of their right to challenge that decision.
I now turn to the relevant law. Paragraph 2(1) of Schedule 3 to the Immigration Act 1971, reads, so far as is relevant:
"Where a recommendation for deportation made by a court is in force in respect of any person, and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him, he shall, unless the court by which the recommendation is made otherwise directs … be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case."
The way in which the Secretary of State approached his task was the subject matter of a declaration and order in the case of Sedrati, Buitrago-Lopex and Anaghatu v Secretary of State for the Home Department [2001] EWHC Admin 418 by, as he then was, Moses J on 17th May 2001. Until the decision in that case, and until the case was argued in court, there had been a presumption that those recommended for deportation by a criminal court would remain in custody unless and until the Secretary of State said so so that there was no need for any decision to be made, at about the time of the end of the sentence, whether or not to detain him or to release him on bail. That presumption was conceded by the defendant to be in error. As Moses J said in the short judgment on this point:
"2. At one stage during the course of consideration of the detention of these claimants, it had become apparent that officials were taking the...
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