Raed Salah Mahajna v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 30 September 2011 |
| Neutral Citation | [2011] EWHC 2481 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6474/2011 |
| Date | 30 September 2011 |
[2011] EWHC 2481 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Nicol
Case No: CO/6474/2011
Raza Husain QC and Duran Seddon (instructed by Irvine Thanvi Natas) for the Claimant
Neil Sheldon (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 14th and 15th September 2011
Approved Judgment
The Claimant is an Israeli citizen. He was elected three times to be mayor of his town of Umm al-Fahm. He is a strong supporter of the Palestinian cause and the rights of Arab Israeli citizens. He is an outspoken critic of some of the policies of the government of Israel.
On 25th June 2011 he was given leave to enter the UK as a visitor for 6 months. It is not suggested that he obtained this leave unlawfully or that it was invalid. However, unknown to the Claimant at the time (and, it would seem, unknown to the Immigration Officer who granted him this leave) the Secretary of State had on 23rd June 2011 taken the decision that he should be excluded from the UK on the grounds that his presence was not conducive to the public good. When it was realised that he was in the UK, a further decision was taken that he should be deported, again on the grounds that his presence in the UK was not conducive to the public good. The Claimant vigorously objects to the Secretary of State's conclusion that his presence is inimical to the public good. He has exercised his right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) and it will be for the Tribunal to resolve that dispute. The present proceedings do not involve that issue. What they do involve is the Claimant's detention following the decision to deport him. He was arrested at about 11.00pm on 28th June 2011. He remained in detention until he was released on bail subject to stringent conditions on 18th July 2011. This followed a hearing before Stadlen J. on 15th July 2011. Stadlen J. also ordered that permission to apply for judicial review and the substantive application (if permission was granted) should be considered at a rolled up expedited hearing. It was this hearing which took place before me on 14th and 15th September 2011. Because of the restrictive conditions of his bail, the Claimant asked me to provide a judgment as expeditiously as possible.
Factual background
The letter of 23rd June 2011 was written on behalf of the Home Secretary and said that she personally had directed that the Claimant should be excluded from the UK because he had publicly expressed views that fostered hatred which might lead to inter-community violence in the UK. She noted that he was the leader of the Northern branch of the Islamic Movement in Israel, a group which the Home Secretary said was linked to Hamas. Quotations were given from what were said to be public statements by the Claimant which could be interpreted as anti-semitic and/or supportive of violence. The Claimant takes issue with the accuracy of the material attributed to him and rejects the allegation of anti-semitism or support for unlawful violence.
The letter was addressed to the Claimant and efforts were made to serve him in Israel, but these had not succeeded before he flew from Tel Aviv to Heathrow. As an Israeli national he did not require a visa to come to the UK. His visit was due to be a short one. He had a return ticket for 5th July 2011.
The Claimant had arranged to attend a number of meetings during his stay and addressed a meeting at the House of Lords on Monday 27th June 2011. On Tuesday 28th June the decision was taken to arrest the Claimant and deport him to Israel. A group of 5 Immigration Officers went to the Claimant's hotel, the Crowne Plaza, at Hanger Lane, Western Avenue London W5. One of the officers was Mr Nicholas Church. His witness statement says that at 11.03pm he and the other officers went up to the Claimant and he said "I am now arresting you as a person liable to detention under section 2(4) of Schedule 3 of the 1971 Immigration Act". This was in English and one of the men with the Claimant said that the Claimant did not speak English. One of them then spoke to the Claimant in a language which Mr Church said he could not understand. The Claimant was handcuffed and taken to Paddington Green Police Station.
The Claimant has provided a witness statement and, with qualifications which I shall come to, Mr Sheldon on the Defendant's behalf, was prepared to accept it as accurate. The Claimant says that when approached by 5 people at his hotel on 28th June, he was accompanied by his interpreter and his body-guard. He was shown an identity card which he could not read because it was in English. His interpreter tried to speak to them and (as the interpreter later told the Claimant) tell them that the Claimant could not speak or understand English. The interpreter said he wanted to interpret for the Claimant but the officers would not engage or speak with the interpreter at all. The officers prevented the Claimant's associates from going with him into his room or communicating with him at all. The Claimant did recognise the word "passport" and he handed his over. He could understand nothing further.
During the journey Mr Church used a translation application on his iPhone to communicate in Arabic the following, "Mr Salah, you have been arrested for immigration offences and we will arrange an Arabic interpreter when we get to the police station." The Claimant agrees that he was shown the screen of a mobile phone with something on these lines.
At the police station a custody record sheet was opened at 23.47 by a Sergeant Fellowes. Mr Church says that he explained the facts of the arrest to the Sergeant who authorised the Claimant's continuing detention. The Custody record says under the standard entry "Offences" the following "Immigration. Other (2(4) of Schedule 3 to the 1971 Act cross applying to Schedule 2 to the 1971 Act) in respect of those who would be liable to detention upon receipt of a notice of intention to deport (whereafter they are detained under para 292) [this is an error for para 2(2)] of Schedule 3)". Under the standard heading "Reasons to arrest" the following was entered "To allow the prompt and effective investigation of the offence or of the conduct of the detained person. To prevent any prosecution for the offence from being hindered by the disappearance of the detained person." The place of arrest is recorded as the Crowne Plaza Hotel and under "circumstances" it is said, "UKBA staff have attended location to arrest and detain d/p for immigration offence." The custody sheet records that detention was authorised and the reason given was "Other (Immigration offences)" and the "grounds for detention" were given as "for UKBA to detain for immigration offence".
Mr Church's evidence continues that after being booked into custody, via language line on the telephone he explained to the Claimant that he was being detained under the Immigration Act as a person on whom a notice of intention to make a deportation order had been served. He dated and timed the letter as 29th June 2011 at 00.10. Mr Church served this, the appeal papers and a Form IS91R on the Claimant. The Notice of Intention to make a Deportation Order explained, in similar terms to the letter of 23rd June 2011 why the Secretary of State personally considered the Claimant's presence in the UK not to be conducive to the public good. It explained that the Claimant had a right of appeal and this could be exercised from within the UK.
The Form IS91R is headed "Notice to Detainee: reasons for Detention and Bail Rights". Two reasons are given as to why it had been decided that the Claimant should remain in detention: "Your removal from the United Kingdom is imminent"; and "you need to be detained while arrangements are made for your care". Mr Husain QC, on behalf of the Claimant, observes that a further alternative "Your release is not conducive to the public good" was not ticked. The form then lists a number of possible factors on the basis of which the decision to detain had been reached. The only one ticked in this case was "You are excluded from the UK at the personal direction of the Secretary of State." A further box which was ticked on the front of the sheet cross refers to a footnote on the second page which (in very small font size) says that the detention of the person concerned was authorised by the Secretary of State. The final section of the form has two alternatives. The one which was not ticked says "The contents of this notice have been explained to you in English by me". The alternative (which was ticked) said, "The contents of this notice have been explained to you in ….language." No language has been filled in. The signature is not legible and Mr Sheldon was not able to help me identify whose it was.
Despite the last box on the form IS91R being ticked, Mr Church does not say that any more was translated to the Claimant than I have indicated.
In his statement the Claimant says that on arrival at the police station Mr Church spoke to him using a translator on the telephone. He says he was told in terms very similar to what he had been shown on the screen of the phone in the car that "I was being detained for immigration offences (or for having broken immigration laws). He also said that I would be deported from the UK." The Claimant says that this was the first that he was told that he would be deported. He said through the telephone translator that he would speak to his lawyers to resist this. He was told that he had a right of appeal. The Claimant says he told Mr Church that he would indeed appeal against the decision. The Claimant agrees that...
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R Shoaib v Secretary of State for the Home Department
...should be given on when someone is arrested or detained. Counsel also drew attention to a decision of Nicol J in Mahajna (Salah) v Secretary of State for the Home Department [2011] EWHC 2481 (Admin), which is to much same effect, where Nicol J said it dealt with the problem that the detaine......