R (Walumba Lumba and another) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMR JUSTICE COLLINS,Mr Justice Davis:
Judgment Date19 December 2008
Neutral Citation[2008] EWHC 2090 (Admin),[2008] EWHC 3166 (Admin)
Docket NumberCO/922/2007,Case No: CO/2508/2008 CO/10083/2006 CO/5104/2008 CO/9222/2007
CourtQueen's Bench Division (Administrative Court)
Date19 December 2008

[2008] EWHC 2090 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Collins

CO/922/2007

Between
The Queen On The Application Of Walumba Lumba
Claimant
and
Secretary Of State For The Home Department
Defendant

Alex Goodman (instructed by Fisher Meredith LLP) appeared on behalf of the Claimant

Rory Dunlop (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

(Approved by the court)

MR JUSTICE COLLINS
1

The claimant in this case is a national of the Democratic Republic of the Congo (“the DRC”). He entered the United Kingdom unlawfully in April 1994 and claimed asylum. It was not until February 2000 that the Secretary of State refused his asylum claim. However, he was granted exceptional leave to remain until 20th February 2004. Then on 13th April 2004 he was granted indefinite leave to remain. In the meantime, he committed a number of offences, mainly of violence, which led to prison sentences of varying lengths.

2

Finally, in May 2003, he committed a very serious assault, striking a man, who had objected to him urinating in the garden of a house, with a brick, and causing what could have been, but fortunately were not, life-threatening injuries. However, they were serious enough to convict him of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. That conviction took place in January 2004 and led to a sentence of 4 years imprisonment. His release date, subject to any chance of parole, was 23rd June 2006, which would be after he had served two-thirds of the 4-year sentence.

3

A probation officer's report to the Parole Board showed that he was minimising his responsibility. He had suggested that he had acted in self-defence and he had not pleaded guilty to the offence. He recognised that he had difficulties in controlling his temper, there were mental health problems, which were being controlled by medication, and it was assessed then that there was a medium risk of his reoffending and causing harm. A psychiatric report diagnosed post-traumatic stress disorder, overlapped by depression and paranoid psychotic episodes. This was said to have been because he had witnessed the violent death of his father, and had himself been detained and tortured in the DRC. That was his background.

4

On 17th May 2006 he was served with the intention to make a deportation order. This followed a decision letter of 3rd April 2006, which told him that it had been concluded that, following his conviction for wounding with intent, his deportation would be conducive to the public good, and then set out his background, which I have already indicated. It concluded that he would be able to access adequate mental healthcare facilities on his return and, although he had been resident in the United Kingdom for a number of years, he had spent his youth and formative years in the DRC and it was not considered unreasonable to expect him to be able to readjust to life in the DRC.

5

The letter continued:

“We are also aware that you have a wife and child in the United Kingdom. In considering whether it would be right to deport you the effect that deportation is likely to have upon them, your family and the wider community has been taken into account, as well as whether any disruption to your family and private life is justified in light of your criminal convictions.”

The conclusion was that, on balancing his rights to a family life and the legitimate aim to ensure the prevention of disorder or crime, his deportation would not be a breach of Article 8.

6

In those circumstances, he was told that there was a right of appeal against that decision. He had to be released from custody on 23rd June 2006. On 22nd June 2006 he was given a letter from the Home Office which, so far as material, stated as follows:

“As you are aware, on 17 May 2006 you were served with a notice of intention to make a deportation order. As the subject of deportation action you are liable to detention under Schedule 3 to the Immigration Act 1971 (as amended).

However, detention is only used where there is no reasonable alternative available and there is reason to believe that you would not comply with any restrictions attached to your release.

Having considered the particulars of your case, your detention is deemed to be justified under the powers contained in Schedule 3 of the Immigration Act 1971.

It has been decided that you should be detained because:

There is insufficient reliable information to decide whether to grant you temporary admission or release.

The decision to detain you has been reached on the basis of the following factors:

You have propensity to behave violently and on the commission of your last offence you failed to show any remorse. It is considered that maintaining your detention is in the interests of public protection.

Your removal is deemed likely to be effected within a reasonable time scale and therefore that you should be detained with a view to effecting your deportation.

In reaching this decision Articles 5 and 8 of the European Convention on Human Rights have been taken into account.”

7

It was then asserted in relation to Article 5 that all reasonable expedition was being exercised to ensure that the necessary steps were taken for his deportation within a reasonable time. It was considered that his removal remained a realistic prospect within a reasonable period.

8

Then there was reference to Article 8. It was asserted that the detention was not in breach because it was proportionate within the terms of Article 8.2. It will be noted, as I have indicated in citing it, that in that letter it was stated that detention was being used because there was no reasonable alternative available. That is to say, the approach was that detention was in effect a matter of last resort. In due course I will come to the problems which subsequent evidence has created in relation to that.

9

He remains in custody. By this claim he seeks a declaration that that custody is now unlawful, and has (before now) been unlawful. In addition, he seeks an order for his immediate release and he claims damages.

10

The appeal against the decision to make a deportation order was heard on 5th December 2006, and was dismissed by a decision promulgated on 15th December 2006. Because, albeit his asylum claim had been rejected, he had been granted exceptional leave to remain, followed by indefinite leave to remain, there had been no appeal against the refusal of asylum. So the appeal against the decision to make a deportation order was the first opportunity that he had to raise issues of asylum, should he wish to do so; and he did because, he asserted, his return would be contrary to the Refugee Convention and Article 3 of the European Convention on Human Rights, because he would be persecuted and suffer relevant ill-treatment on his return to the DRC.

11

At the appeal he was represented by counsel. In his statement, which was produced in his appeal, he said this:

“24. I plea to the Secretary of State to accord me with the protection of the 1951 United Nations Convention relating to the test of refugees. I am an asylum seeker… I cannot return to the country from which I fled persecution… I will not be protected by the Congolese authorities should I be returned there, I fear that I would be killed, in the same manner in which my father was killed.”

He then said that he had learnt his lesson and would not further offend.

12

Putting it very briefly, his account of what had led to him leaving the DRC was the killing of his father by soldiers, his father having been a founding member of the Union Democratic Progress Social Political Party in the DRC. He said that he demonstrated in order to find out what had happened to his father. That led to his being detained and seriously beaten by soldiers. He was kept in detention for some 11 days. He said he was eventually released but was still wanted by the authorities and, because his life was in danger, his mother arranged for him to leave the DRC and travel to the United Kingdom.

13

In his determination, the Immigration Judge said this:

“5. The Appellant has previously applied for asylum, which had been refused. It was no part of the Appellant's case that his removal involved the United Kingdom in a breach of its obligations under the 1951 Refugee Convention and there was no suggestion that his removal would expose him to a risk of unlawful killing or of inhuman or degrading treatment or punishment in the DRC.”

14

On the face of it, that observation conflicts with the statement produced by the claimant, to which I have already referred. Indeed, in paragraph 6 of his determination the Immigration Judge, in summarising the appellant's evidence, said that he confirmed the witness statement, and that it would not be safe for him and his family to return to the Congo, as there would not be adequate protection for them. It is said that there is thus an obvious internal inconsistency in the Immigration Judge's decision.

15

On the face of it, one sees the force of that submission, but the reality is that he was represented by counsel. We do not know what, in the end, his evidence amounted to, because he may well have backtracked in cross-examination. It may be that in the end it was not asserted that he would be at risk of persecution or ill-treatment on return. Furthermore, it is to be noted that there was no appeal sought. If his case had remained the same, that inconsistency, on the face of the Immigration Judge's decision, would, one would...

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