Secretary of State for the Home Department v Arben Draga
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Kitchin,Lord Justice Pill |
| Judgment Date | 21 June 2012 |
| Neutral Citation | [2012] EWCA Civ 842 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2011/2107 |
| Date | 21 June 2012 |
[2012] EWCA Civ 842
Lord Justice Pill
Lord Justice Sullivan
and
Lord Justice Kitchin
Case No: C4/2011/2107
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR NEIL GARNHAM QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
CO/6024/2008
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Johnson QC (instructed by The Treasury Solicitor) for the Appellant
Manjit Gill QC and Gordon Lee (instructed by Messrs Sutovic & Hartigan) for the Respondent
Hearing dates: 15 th & 16 th May 2012
Introduction
This is the Secretary of State's appeal against the order dated 15 th July 2011 of Mr. Neil Garnham QC sitting as a Deputy Judge of the High Court granting the Claimant, Arben Draga, a declaration that he was unlawfully detained by the Secretary of State between 2 nd August 2006 and 27 th March 2007, and between 30 th November 2007 and 30 th September 2010.
The facts
The facts are set out in some detail in paragraphs 3–19 of the judgment below [2011] EWHC 1825 (Admin). Additional documents were produced by the Secretary of State during the course of the Appeal: see paragraph 7 below.
Mr. Draga is a Kosovan national who arrived in the UK as an unaccompanied minor in 2001. He claimed asylum on the ground that he feared persecution on account of his Gorani ethnic origin if he was returned to Kosovo. He was recognised as a refugee and granted indefinite leave to remain on 6 th December 2001.
In 2005 he was convicted of a number of offences: criminal damage, possession of heroin with intent to supply, and possession of a knife in a public place. In respect of the second of those offences he was sentenced to 18 months detention in a Young Offender Institution. The sentencing judge did not recommend deportation.
Mr. Draga was released on licence on 15 th December 2005. While on licence he was arrested for possession of an imitation firearm, was released on bail subject to reporting conditions, and breached those conditions by failing to report on 22 nd May 2006.
Consideration was then given by the Secretary of State to whether Mr. Draga should be deported. It is an unsatisfactory feature of this case that there is no witness statement on behalf of the Secretary of State which deals with the decision making process within the Home Office. The Judge had to draw inferences as to the process – what matters were, or were not, considered, when and by whom – from the documents disclosed by the Home Office.
The key documents before the Judge were a memorandum from the Secretary of State's "CCT Crash Team" dated 26 th June 2006, and a handwritten note dated 29 th June 2006: see paragraphs 8 and 9 of the judgment. During the course of the appeal we gave Mr. Johnson QC permission to produce the additional documents referred to in paragraphs 8, 9, and 12 below.
Deportation was first considered by the CCT in a minute dated 7 th May 2006. Having summarised the history and considered the factors listed in paragraph 364 of HC 395, the author of the minute said:
"Having taken all the above into consideration I am of the opinion that deportation would not be appropriate in this case. Please advice (sic) on the way forward."
That is followed by a handwritten note dated 14 th May 2006:
"…having read the previous minute I am of the opinion that this should go to a SCW [Senior Case Worker] at CCT to confirm a DO [Deportation Order] is not being pursued."
The memorandum dated 26 th June 2006 is, presumably, the presentation of the case to the Senior Case Worker:
"Subject was granted asylum/ILR on 5/12/01. As a Gorani it was accepted that he had a well-founded fear of persecution. Subject came to CCT notice following his conviction on 18/5/05 for possession of drugs with intent, he was sentenced to 18 months detention in a YOI, not recommended [for deportation]….the subject was fined in April 2005 for criminal damage and sentenced to 3 months YOI for having a blade in a public place in June 2005. The subject, a person with refugee status has been sentenced for less than 2 [years] as such we would not pursue deportation action."
Beneath the typed memorandum someone, presumably the Senior Case Worker, added a manuscript note. The note is dated 29 th June 2006, and states:
"Even though this subject has been sentenced to less than two years, this case should be pursued under s.72(4) of the 2002 NIA Act. His offence (possession of class A with intent to supply) has been specified as serious enough by the Secretary of State to attempt to revoke his refugee status and initiate deportation action. His offence is listed in schedules 1 to 6 of the order made by the Secretary of State in relation to the specification of serious crimes. File to require further casework action in relation to s.72 rebuttal etc."
The case was pursued in a memorandum dated 28 th July 2006 from the "Taskforce Team". The "Summary" in this memorandum referred to Mr. Draga's conviction for possession of drugs with intent to supply and said:
"In light of his conviction it has been decided to revoke his refugee status and serve deportation notices on him."
Consideration was then given to the factors listed in paragraph 364 of HC 395, and the memorandum concluded:
"Mr. Draga has been convicted of a serious offence and there are no known compassionate or compelling circumstances in this case. He has resided in the United Kingdom for 4 years and 9 months, but has spent his youth and formative years in Yugoslavia. His continued presence in the United Kingdom is not considered conducive to the public good.
Therefore
ICD 1070
Reasons for Deportation letter
Appeal form ….."
On the 2 nd August 2006 Mr. Draga was served with notice of a decision to make a deportation order against him (Form ICD 1070). The notice said that:
"On 18 May 2005 at Isleworth Crown Court, you were convicted of Possession of Drugs – with intent to supply. In view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999)."
The notice informed Mr. Draga of his right to appeal against the decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), enclosed a notice of appeal, and set out the grounds on which he could appeal. Those grounds included the ground that his removal from the UK as a result of the decision would breach the UK's obligations under the 1951 Refugee Convention, and the ground "that the decision is otherwise not in accordance with the law."
Mr. Draga was detained on 2 nd August 2006. For completeness, it should be noted that the notice dated 2 nd August 2006 said that Mr. Draga would be removed to Somalia. That was plainly an error, and it was corrected in a new Notice served on 22 nd January 2007, which substituted Serbia for Somalia as the country to which Mr. Draga would be removed. Neither party suggested that anything turned on this error.
On 18 th September 2006 Mr. Draga appealed against the decision to make a deportation order against him. In a determination promulgated on 15 th February 2007 the Asylum and Immigration Tribunal dismissed his appeal. The Tribunal noted that the letter from the Home Office giving the Secretary of State's reasons for the decision to make a deportation order had erroneously referred to section 72(2) of the 2002 Act. The Home Office Presenting Officer confirmed that no reliance was placed on section 72(2) of the 2002 Act, but did rely on section 74(4) of the Act: see paragraph 9 of the Tribunal's determination.
It was conceded on behalf of Mr. Draga, who was represented by Counsel (not Mr. Gill QC or Mr. Lee) before the Tribunal, that the offence of which he had been convicted was one specified by order of the Secretary of State. The Tribunal stated that the consequence of this was that subsections 72(6), (9) and (10) of the Act came into play. In paragraph 20 the Tribunal concluded that:
"Although the appellant has not re-offended between his release from custody in December 2005 and his immigration detention on 2 nd August 2006, we find it impossible to say that he has rebutted the presumption that his was a particularly serious crime, or that he no longer constitutes a danger to the community."
Mr. Draga applied for reconsideration of the Tribunal's decision. He was granted bail on 29 th March 2007. Reconsideration of the Tribunal's determination was ordered on 31 st May 2007. We do not have the grounds for reconsideration, but the Court of Appeal subsequently said that he had packaged an error of fact as an error of law: see [2008] EWCA Civ 319, paragraph 4. In a determination promulgated on 10 th October 2007 the appeal was dismissed on reconsideration. The time for applying to the Court of Appeal for permission to appeal against this decision expired on 26 th October 2007, ibid, paragraph 5. On 6 th November 2007 the Secretary of State signed a deportation order against Mr. Draga. He was served with the order and re-detained on 30 th November 2007.
On 18 th February 2008 Mr. Draga filed an out-of-time application for permission to appeal to the Court of Appeal. At that stage, the sole ground of appeal was that the Secretary of State should have considered deportation under Article 32 of the Refugee Convention, not...
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