SA (Holland) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWHC 2570 (Admin) |
| Date | 31 July 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6924/2011 |
[2014] EWHC 2570 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/6924/2011
The Queen on the application of
Mr Tim Buley (instructed by Bhatt Murphy Solicitors) for the Claimant
Ms Julie Anderson QC and Mr Andrew Byass (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 1 and 2 April 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
In these proceedings the claimant SA challenges his detention by the defendant under immigration powers. He was detained from 26 January 2011 to 22 March 2012. Permission was granted by Nicol J on 19 January 2012, on what were then grounds 1 and 3 of the grounds of claim: that the defendant made public law errors in the application of her policy for detention of the mentally ill (ground 1) and that the claimant's detention was in breach of the Hardial Singh principles ( R v SSHDex parte Hardial Singh [1984] 1 WLR 704) (ground 3). Ground 2 claimed that the policy on the detention of the mentally ill was itself unlawful. Nicol J reserved the question of permission on that ground because of litigation then pending; but in the light of the decision of the Court of Appeal in R (Das) v SSHD [2014] EWCA Civ 45, the claimant no longer pursues that ground.
The basic facts
The claimant is from Somalia, where he was born in 1969. He travelled to the Netherlands in 1991 and eventually obtained Dutch nationality. In the mean time some other members of his family, including his mother and some of his ten siblings, had travelled to the United Kingdom and successfully claimed asylum. He joined them here in August 2000. In April 2010 he attacked a member of staff at a hospital. He was arrested and remanded in custody. At his trial in the autumn of the same year he was sentenced to 18 months imprisonment following his plea of guilty to assault occasioning actual bodily harm. Towards the end of the period he was required to spend in custody as a result of that sentence the Secretary of State considered that he should be deported and invited reasons why he should not be subject to automatic deportation under the UK Borders Act 2007. Solicitors responded that he was a Dutch national, had a right under Article 8 of the European Convention on Human Rights not to be removed, and was mentally ill.
His nationality was investigated and the authorities in the Netherlands eventually accepted that his passport was genuine and had been issued to him. The Secretary of State then considered that he should be subject to (non-automatic) deportation because of his criminal offence, and issued a notice to that effect. He appealed against that decision and his appeal was allowed by the Upper Tribunal in February 2013, a previous determination by the First-tier Tribunal having been wholly set aside for error of law. From the end of the custodial part of his sentence he had been in immigration custody until released in March 2012.
The law
A. Immigration detention in general
The Secretary of State's powers to detain those whose deportation or removal is envisaged are contained in Schedules 2 and 3 to the Immigration Act 1971 (as amended) and in s 36 of the UK Borders Act 2007. They are not there subject to any limitations, but common law limitations are recognised following the decision of Woolf J (as he then was) in R v Governor of Durham Prisonex parte Hardial Singh [1984] 1 WLR 704. The principles were encapsulated by Dyson LJ (as he then was) in R (I) v SSHD [2002] EWCA Civ 888 and endorsed by him in Lumba v SSHD [2011] UKSC 12 ('WL') at [22]:
(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
The Secretary of State has issued guidance indicating that detention with a view to deportation will be the normal practice (for that phrase see WL at [42]) when the criteria for deportation are met. The guidance, in her 'Enforcement Instructions and Guidance', is as follows:
" 55.1.3. Use of detention
General
Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable.
Criminal casework cases
As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding should be weighed against the presumption in favour of temporary admission or temporary release in cases where the deportation criteria are met. In criminal casework cases concerning foreign national offenders (FNOs), if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale.
If detention is appropriate, an FNO will be detained until either deportation occurs, the FNO wins their appeal against deportation (see 55.12.2. for decisions which we are challenging), bail is granted by the Immigration and Asylum Chamber, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5 below).
In looking at the types of factors which might make further detention unlawful, case owners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list here, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release.
In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.
55.3.2. Further guidance on deciding to detain in criminal casework cases.
55.3.2.1 This section provides further guidance on assessing whether detention is or continues to be within a reasonable period in criminal casework cases where the individual has completed their custodial sentence and is detained following a court recommendation or decision to deport, pending deportation, or under the automatic deportation provisions of the UK Borders Act 2007. It should be read in conjunction with the guidance in 55.3.1 above, with substantial weight being given to the risk of further offending and the risk of harm to the public.
Whilst as a matter of practice, the need to protect the public has the consequence that criminal casework cases may well be detained pending removal, caseworkers must still carefully consider all relevant factors in each individual case to ensure that there is a realistic prospect of removal within a reasonable period of time.
In family cases, each individual must be considered to see if there is interference with their Article 8 rights and, if so, whether it is proportionate. For example, thought should be given to whether it is appropriate to detain family members due to be deported or removed with the foreign national offender and, if so, when – please see chapter 45 for cases where one or more family member(s) is under the age of 18. An up to date record of convictions must be obtained from the police national computer (PNC) in order to inform decisions to detain or maintain detention in criminal casework cases. Please also see 55.8 regarding detention reviews and 55.20.5 for instructions on managing contact where a criminal casework case is released on restrictions. Where a time served foreign national offender has a conviction for an offence on this list, particularly substantial weight should be given to the public protection criterion in 55.3.1 above when considering whether release on restrictions is appropriate.
In cases involving these serious offences, therefore, a...
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