The Secretary of State for the Home Department v JM (Zimbabwe)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Flaux,Lord Justice Underhill,Lord Justice McCombe
Judgment Date25 October 2017
Neutral Citation[2017] EWCA Civ 1669
Docket NumberCase No: C4/2016/3721/QBACF

[2017] EWCA Civ 1669

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE JAY) [2016] EWHC 1773 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice McCombe

Lord Justice Underhill

and

Lord Justice Flaux

Case No: C4/2016/3721/QBACF

Between:
The Secretary of State for the Home Department
Appellant
and
JM (Zimbabwe)
Respondent

Julie Anderson (instructed by the Government Legal Department) for the Appellant

Rory Dunlop (instructed by Duncan Lewis) for the Respondent

Hearing date: 11 October 2017

Approved Judgment

Lord Justice Flaux

Introduction

1

The Secretary of State appeals against the declarations made by Jay J on 15 July 2016 that (i) she cannot lawfully require the respondent JM under section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 ("the 2004 Act") to tell officials at the Zimbabwean Embassy that he agrees voluntarily to return to Zimbabwe; and (ii) that he is entitled to substantial damages against the Secretary of State for unlawful immigration detention between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015 when he was serving a sentence of imprisonment).

2

Jay J gave permission to appeal under CPR 52.6(1) (b), namely that there was some other compelling reason for the appeal to be heard. The Grounds of Appeal originally lodged by the Secretary of State were somewhat discursive and, on 2 November 2016, Underhill LJ ordered her to serve a more concise summary and to seek permission to appeal in relation to any Ground for which Jay J had not given permission. More concise Grounds of Appeal were served on 28 November 2016, although they still ran to 14 Grounds, many of which overlap with each other.

The factual background

3

JM is a national of Zimbabwe born on 10 October 1987. He has been HIV positive since birth. He came to the United Kingdom in July 2002 aged 14 at the suggestion of his aunt, a nurse who was living in the United Kingdom, with a view to seeking treatment. As the judge said at the outset of his judgment at [3], although the Secretary of State has made no formal decision declaring JM an illegal entrant, were she to do so, that decision could not be impugned.

4

On 5 November 2002, JM applied for indefinite leave to remain on medical grounds and as a dependant of his aunt. He provided his Zimbabwean passport. His application was refused on 12 July 2004. His appeal was dismissed by an Immigration Judge in 2005. Although the Immigration Judge accepted the medical evidence that JM had access to antiretroviral drugs in the United Kingdom to which he would be unlikely to have access in Zimbabwe, his condition was not such that removal to Zimbabwe was contrary to Article 3 of the European Convention on Human Rights. It has remained the constant response of the Secretary of State to JM's case that he needs to stay in the United Kingdom to have access to antiretroviral drugs, that he is not entitled to receive costly treatment at public expense given that he has no right to be here and his condition is not such as to engage Article 3.

5

In February 2006, JM applied for asylum. That claim was refused and his appeal against that decision was dismissed, his appeal rights becoming exhausted in October 2006. He had been granted temporary admission with a requirement to report. Apart from one excusable default, he reported as required from 2006 until his arrest in 2011.

6

On 4 May 2011, the Claimant was arrested for possession with intent to supply quantities of class A and class B drugs. On 20 May 2011, he told immigration officers, who were explaining the deportation process to him, that he did not want to return to Zimbabwe. On 26 August 2011, after his plea of guilty earlier that month, he was sentenced to a total of 4 years' imprisonment.

7

The automatic deportation regime prescribed by section 32 of the UK Borders Act 2007 ("the 2007 Act") was activated prior to the custodial element of his sentence coming to an end on 5 May 2013, so that upon his release from prison, JM was taken into immigration detention under section 36(1) of the 2007 Act, which provides for a power of detention whilst, in effect, the Secretary of State considers whether any of the exceptions to automatic deportation set out in section 33 apply. The Probation Service assessed him as posing a 4% risk of reoffending within one year and 8% within two years and a low risk of serious harm. Detention Reviews by the Border Agency also assessed him as a low risk of harm and a low risk of reoffending.

8

As soon after his detention as 28 June 2013, officials of the Border Agency were recommending his release in the light of the impossibility of effecting involuntary removal to Zimbabwe, the low risk of reoffending and harm and their assessment of the risk of absconding. That recommendation was overruled or, at least, any decision to release was deferred by more senior officials.

9

On 11 November 2013, he was served with a decision to make a deportation order under section 32(5) of the 2007 Act and with the deportation order. Thereafter he was held in detention pursuant to the powers in section 36(2) of the 2007 Act. He appealed against the decision to make a deportation order. Before his appeal was heard, Border Agency officials continued to have doubts as to whether his continued detention could be justified. On 9 January 2014, the Assistant Director wrote on the Detention Review:

"However, it seems unlikely that removal will take place within a reasonable time scale, considering his ill health and low risk of harm and reoffending it is becoming more difficult to justify ongoing detention. Therefore, although I authorise detention for a further 28 days, I recommend that a release referral should be drafted once suitable release arrangements have been put in place."

10

On 26 February 2014, the First-tier Tribunal dismissed JM's appeal, holding that his conviction excluded him from the protection of the Refugee Convention and that his Article 3 claim failed on the basis that his illness had not reached a critical stage where there were compelling humanitarian grounds for not removing him to Zimbabwe. His appeal rights became exhausted on 10 March 2014.

11

On 3 June 2014 JM was offered the opportunity of an assisted return to Zimbabwe under the Facilitated Returns Scheme, but he declined it. Given that his passport had expired, his deportation to Zimbabwe depended upon the grant to him by the Embassy of an Extraordinary Travel Document ("ETD"). It has been the settled policy of the Zimbabwean Government since 2002 that it will not grant ETDs to its nationals who do not wish to return. This is a particular feature of the present case.

12

As a preliminary step to the obtaining of an ETD, JM needed to complete a bio-data form. He was interviewed by immigration officers on 1 October 2014 who recorded him as being "polite and courteous throughout" but he explained that he did not want to return to Zimbabwe. He declined to sign the bio-data form although, after a lengthy discussion, he said he was getting close to making a decision about returning. Despite it being explained to him that continued non-compliance could lead to prosecution, he maintained the position that he did not wish to complete the bio-data form.

13

On 3 November 2014, JM was served with a notice under section 35 of the 2004 Act requiring that he attend an interview with immigration officers and complete a bio-data form. He refused to complete the form, although he said in answer to questions from the officers who served the notice that he was "on the fence right now" and when asked why he would not comply, said: "I'm still thinking about it. I'm still getting advice from people". On 15 December 2014, he was arrested for non-compliance with the requirements of the notice. He then agreed to complete the form, so the decision was taken not to charge him.

14

On 28 January 2015, JM was given a Disclaimer in a Deportation Case form. He ticked the box which stated that at Lincoln police station he had stated that he would now comply with the Zimbabwean ETD application but refused to tick another box which stated: "I state that I will comply with the [ETD] progress as I am will[ing] to go home to Zimbabwe". He explained to the officers that he was willing to comply and give the Secretary of State any information needed, but he did not want to return to Zimbabwe. He did not wish to sign the disclaimer because he did not wish to return.

15

On 4 February 2015, JM was served with a further section 35 notice requiring him to attend an interview at the Zimbabwean Embassy and, amongst other things: "to give your consent to return to Zimbabwe if requested to do so by an Embassy official". On 11 February 2015, JM attended the Embassy with immigration officers Mr Richard Barraclough and Ms Jo Ryan. He was asked by an Embassy official if he wanted to return to Zimbabwe and he replied that he did not want to go back to Zimbabwe. He said that he wasn't willing to go but would if he had to. The Embassy official then declined to issue a travel document.

16

On 21 April 2015, the same immigration officers arrested JM at the Morton Hall Immigration Centre for an offence under section 35, due to his failure on 11 February to comply with the section 35 notice. He was taken to Lincoln police station, where the officers interviewed him under caution. He repeated what he had said to the Embassy official as set out in the previous paragraph. He then said: "I don't see how it's my fault. The Zimbabwean Embassy could have issued it [the ETD] anyway" to which Ms Ryan responded: "No they couldn't". That was a clear recognition of the practical reality that the Zimbabwean authorities would not issue an ETD unless the individual in question...

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