Zyad Alsaadon v The Secretary of State for the Home Department

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)

This claim has a long history: it was filed on 28 August 2008. It originally challenged a number of issues in relation to the Secretary of State's dealings with the claimant. Following amendments, the sole issue now relates to the legality of the claimant's detention under the Immigration Acts between 4 July 2007 and 14 August 2009.

The Claimant

Personal History

The claimant is a national of Iraq. He came to the United Kingdom on a student's visa in March 1973. His student leave was apparently extended twice. In January 1976 he married a British National. He claims that he subsequently sought, and was granted, indefinite leave to remain as a spouse: that is a matter to which I shall have to return. There were two children of the marriage. The claimant and his wife were divorced some time in 1986 or 1987. In 1989 he married again. The claimant has subsequently had another long-term relationship. It is not said that he is in contact with any of his previous partners or the children.

The claimant has a substantial criminal record. He has twenty convictions for thirty-five offences in the period from 1977 to 2004. His convictions include threats to kill, for which he was sentenced for four years imprisonment in 1990, various drug offences, fraud, forgery, theft and handling stolen goods. On 21 May 2004 he was convicted of supplying crack cocaine and was sentenced to five years imprisonment.

Immigration History

Whether or not he had indefinite leave to remain, the claimant came to the Secretary of State's attention following his conviction in 200There is an internal minute dated 5 March 2006, concluding that deportation action against him was not appropriate at that time. Soon after that, however, the claimant, still serving his prison sentence, claimed asylum. His claim was refused, and the defendant issued a decision to make a deportation order, no doubt in order to ensure that he had a right of appeal (there being, generally speaking, no statutory right of appeal against the refusal of asylum). The claimant did appeal. The Tribunal heard his appeal in October 2007. It concluded that the claimant had fabricated his account of his past in order to endeavour to remain in the United Kingdom. It regarded him as not credible in relation to his own history, his account of his relatives in Iraq, and his claim to have obtained indefinite leave to remain in the United Kingdom. The Tribunal dismissed his appeal, and following the expiry of his rights of appeal against the Tribunal's decision, the Secretary of State acted upon the decision to make a deportation order: the order was signed on 5 March 2008.

The present proceedings were begun nearly six months later. On 8 September 2008 the Secretary of State revoked the deportation order, being persuaded by decisions of the Tribunal and the Court of Appeal ( HH (Iraq) v SSHD[2009] EWCA Civ 727) that it perhaps ought not to have been made. There was further correspondence between the claimant's solicitors and the defendant on the substantive merits of the claimant's claim not to be subject to deportation action. The defendant was not persuaded, and on 10 November 2008 notified a new decision to make a deportation order against the claimant. That decision carried a right of appeal, which the claimant again exercised.

The appeal was heard by the Tribunal and in a determination issued on 1 April 2009, the Tribunal allowed the claimant's appeal. It declined to ignore the earlier Tribunal's findings as to the claimant's credibility, and accordingly concluded that he had not established that he was entitled to refugee status or humanitarian protection. Taking into account new evidence that had not been before the earlier Tribunal, however, it concluded on the balance of probabilities that the claimant had been granted indefinite leave to remain in the 1970s. It thus moved on to its consideration of Article 8 on the basis that the claimant's presence in the United Kingdom "has been lawful throughout". Its judgement on Article 8 was made, of course, on the basis of the facts as they were at the time of the hearing in the spring of 2009. By then the evidence was that the claimant had been drug-free for about five years, and there was character evidence from a number of individuals including some very strong support. The Tribunal concluded that deportation action against the claimant would not be proportionate and would thus breach his Article 8 right to continue the private life that he had had in the United Kingdom for so many years.

The Secretary of State sought reconsideration of that decision. An order for reconsideration was made, but in a determination sent out on 27 July 2009 Senior Immigration Judge Moulden found that the Tribunal had not made an error of law. It was entitled to follow the first Tribunal's assessment of the evidence as to the claimant's past in Iraq, but to reach its own conclusion on the matter on which there was new evidence; it had apparently taken into account all relevant factors in deciding the proportionality of deportation and although "the conclusion may have been finally balanced" the Tribunal was entitled to reach it.

That decision meant that the Secretary of State's notified intention to make a deportation order against the claimant was no longer effective. The claimant followed it up by issuing judicial review proceedings challenging the defendant's failure to "confirm" his indefinite leave to remain. The defendant responded by indicating an intention to revoke his indefinite leave to remain. The claim was settled by consent. The claimant was granted indefinite leave to remain on 23 February 2010 and, for the avoidance of doubt, on 27 September 2010 the Secretary of State indicated that there was on that date no longer any intention to revoke it.

Detention History

The custodial part of the claimant's sentence following his conviction of his most recent offence expired on 4 July 2007. Acting under the powers in the Immigration Act 1971, the defendant continued the claimant's detention. Thus, he was in immigration detention at the time of his two appeals, and the events between them. The claimant was released from immigration detention on 14 August 2009, following the endorsement of the allowing of his appeal against the second decision to make a deportation order.

During the period of his detention regular reviews appear to have taken place in accordance with the relevant guidance, save that there were no reviews in June, July or August 2008.

The Law

Although the Secretary of State's power of detention, derived from Schedules 2 and 3 to the Immigration Act 1971, is not subject to any express limitation in the Act itself, a number of well-known authorities show that it is circumscribed in a number of ways.

First, there are the "Hardial Singh" principles, now authoritatively stated in Lumba v SSHD [2011] UKSC 12 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 second constraint is that any decision to detain, or to maintain detention, must be one which can survive challenge on general public law grounds. If there is a published policy, the decision in question must be one which complies with that policy, as Lumba itself shows. Further, if there is a published policy dealing with the treatment of an individual whilst in immigration detention, his treatment must comply with that policy, otherwise the detention itself risks being unlawful. In Kambadzi v SSHD[2011] UKSC 23, there had been a departure from the Secretary of State's declared policy of conducting regular reviews by officers at prescribed levels. The departure from the practice laid out in the policy was described by the trial judge as "deeply disturbing and profoundly shocking". In those circumstances, the claimant could say that his detention was unlawful.

Unlawful detention in these circumstances amounts to the tort of false imprisonment, for which a claimant is entitled to damages. The damages will, however, be no more than nominal if the claimant would have been detained in any event.

In applying these principles, however, it is important to remember that each decision to detain, or to maintain detention, falls for assessment on the basis of the facts and the circumstances at the time the decision was made. Although a court is inevitably looking back on a...