|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> IS, R (on the application of) v Secretary of State for the Home Department  EWHC 1623 (Admin) (11 July 2016)
Cite as:  EWHC 1623 (Admin)
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
|- and -
SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Amelia Walker (instructed by the Government Legal Department) for the Defendant
Hearing dates: 23 February, 6 April & 7 June 2016
Crown Copyright ©
Mrs Justice Lang :
"[The Claimant] explains that prior to the day she was arrested with her co-defendants at the Registry Office in Leeds, she had not met Joseph ... [the groom]. She describes that although a financial payment had been mentioned, no specific amount had been identified and she 'simply' believed that she was going to be looked after. It is not clear whether this was as a result of financial reward or whether [the Claimant] felt she would be looked after by her new husband. …. [The Claimant] is adamant she has not received a penny for her role in the offence…"
i) The Claimant had not established a well-founded fear of persecution so she did not qualify for asylum under paragraph 336 of HC395 (as amended). Her alleged fear of mistreatment on return was based upon threats of persecution from non-state agents and the authorities in Slovakia would be able and willing to provide her with effective protection. In addition, it was reasonable to expect her to relocate within Slovakia and there was no evidence that the people she feared would be able to trace her.
ii) The Claimant had not shown that there were substantial grounds for believing that she faced a real risk of suffering serious harm on return from the UK and so she was not entitled to humanitarian protection under paragraph 339F of the Immigration Rules ("IR"). She was also excluded from a grant of humanitarian protection under paragraph 339D IR because she had been convicted of a 'serious crime', defined as one for which a custodial sentence of at least 12 months has been imposed.
iii) The Claimant had not established that deportation from the UK would breach Articles 3 or 8 ECHR. It was not accepted that there was a real risk that she would commit suicide if removed to Slovakia but should such a risk exist, she could receive appropriate mental health support in Slovakia.
"24(1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3)(b), that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation, and paragraphs 17 and 18 of Schedule 2 to the 1971 Act shall apply in relation to the detention of such a person as those paragraphs apply in relation to a person who may be detained under paragraph 16 of that Schedule."
"(3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provisions as to deportation) are to apply accordingly."
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Le Tam v Tai A Chau Detention Centre  AC 97, 111A-D … . In my judgment, Mr Robb correctly submitted that the following four principles emerge:
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 that 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.
47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.
48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation, the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"22. It is common ground that my statement in R (I) v Secretary of State for the Home Department  INLR 196, para 46 correctly encapsulates the principles …
24. As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J. said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."
"45. ….a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
"55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the UK and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
"107 I have some difficulty in understanding why the risk of reoffending is a relevant factor in a case where there is a risk of absconding, but not otherwise. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department  EWCA Civ 804, Toulson LJ said, at para 55: [he then quotes the passage I have set out above]
Para 78 of Keene LJ's judgment is to similar effect.
108 I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in A's case to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in I's case at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is "an obviously relevant circumstance".
109 But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his reoffending will impede his deportation.
110 The risk of reoffending is, therefore, a relevant factor."
The Defendant's detention policy
"the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding."
Rule 35 Detention Centre Rules 2001
"Because each case will be different, it is not possible to provide definitive guidance on when a Rule 35 report will constitute independent evidence of torture. However, it must have some corroborative potential (it must "tend to show") that a detainee has been tortured, but it need not definitively prove the alleged torture. The following pointers may assist:
- A report which simply repeats an allegation of torture will not be independent evidence of torture.
- A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious cause is unlikely to constitute independent evidence of torture;
- A report which details clear physical or mental evidence of injuries which would normally only arise as a result of torture (e.g. numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scares), and which records a credible account of torture, is likely to constitute independent evidence of torture."
"82. … the word "torture" in the detention policy means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind."
Grounds for judicial review
i) by detaining the Claimant when her offending behaviour was not serious and the risk of absconding and re-offending was, in reality, low; and
ii) continuing to detain her after receipt of the Rule 35 reports.
"It is not uncommon in systematic domestic violence for the victim to withhold information due to fear and denial and I have no concerns regarding the validity of this account which is backed up by her obvious injuries. These are unlikely to be accidental in nature and her explanation is feasible."