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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ismail, R (on the application of) v Secretary of State for the Home Department  EWHC 3921 (Admin) (13 December 2013)
Cite as:  EWHC 3921 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
ABDI ABDILAHI ISMAIL
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
J Thelen (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 5th November & 2nd December 2013
Crown Copyright ©
Mrs Justice Lang:
i) his detention is in breach of the Hardial Singh principles;
ii) the Secretary of State has failed to consider the best interests of the Claimant's children, under her own policy and under section 55;
iii) his detention is in breach of Art. 5 ECHR.
"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."
"21. It is time to come to a line of cases which have considered the exercise of the power of detention, not in fact in the context of removing those refused leave to enter under Schedule 2 but rather in relation to those whom it is intended to deport under Schedule 3. The first of these cases was R v Governor of Durham Prison, Ex p. Hardial Singh  1 WLE 704 where, following a two-year prison sentence for burglary, the applicant was served with a deportation order and detained for five months under paragraph 2(3) of Schedule 3 to the 1971 Act whilst the Home Office attempted to obtain for him a travel document from the Indian High Commission.....[Lord Brown then sets out the passage from Hardial Singh which is cited above]
22. That approach was followed by Laws J in In re Mahmod (Wasfi Suleman)  Imm AR 311 and by the Court of Appeal in R (I) v Secretary of State for the Home Department  INLR 196, both similarly concerned with applicants who had been detained for long periods under paragraph 2(3) of Schedule 2. Laws J in Mahmod said this, at p 314:
"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has [ten months] while nothing but fruitless negotiations have been carried on."
Laws J expressed himself "entirely satisfied" that whatever would have been "a reasonable period for this man's continued detention ... has certainly now been exceeded" and ordered his immediate release.
23. In I, giving my reasons (as part of the majority of the Court of Appeal) for having released the applicant from detention at the hearing of the appeal the previous month, I said this, at p 206, paras 37-38:
"Given ... that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period ... In short, I came to the clear conclusion that ... it was simply not justifiable to detain the appellant a day longer; the legal limits of the power had by then been exhausted."
"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 United Kingdom 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."
"52. The focus of this case is upon the period of detention and the administrative activity, or inactivity, that took place during this time. It is, however, necessary to stress that the assessment of what is a "reasonable" time needs to reflect the overall context. That context is of a foreign national, who has no right to remain in this jurisdiction, who has been convicted of serious criminal offences, in relation to whom the criminal court has made a recommendation for deportation and in respect of whom, as a matter of law, the Secretary of State is required to implement deportation unless the individual is seen to fall within one of the narrow statutory exceptions. Moreover the determination by the Secretary of State of whether, despite the strong policy and statutory impetus favouring deportation, such an individual should, exceptionally, be given leave to remain is a serious and important matter requiring proper and careful evaluation which, of necessity, will occupy a period of time. Any evaluation of that period of time, must, therefore, reflect the gravity of the decision that is to be taken.
53. Again, looking at aspects of reasonableness in this context, it will be the case that the individual has committed a serious criminal offence. The individual will however, only be in criminal detention because he has already served the full term of the sentence imposed by the criminal court. His past criminal offending, of itself, cannot be any justification for implementing or extending his time in immigration detention.
54. A further factor in the context of reasonableness is that the individual will have no statutory right to challenge the Secretary of State's decision, if it is to proceed with deportation, until that decision has been made ."
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."
"Substantial weight must 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 at page 63, 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."
i) 18.5.00: convicted of a Theft Act 1968 offence, and fined.
ii) 29.9.00: convicted of theft, possession of cannabis and failing to surrender to bail and given a probation order and concurrent community sentence.
iii) 3.4.02: convicted on 3 charges of failing to surrender to custody, and sentenced to 1 day's imprisonment.
iv) 08.3.06: convicted of handling stolen goods and sentenced to 28 days imprisonment.
v) 29.6.06: convicted of assault on a constable and fined £50 plus compensation and costs.
vi) 27.2.07: convicted of three charges of racially aggravated threatening behaviour, and failure to surrender to bail. He received a community work requirement and was fined (which order was subsequently varied due to poor compliance).
vii) 17.3.08: breach of a community order.
viii) 9.5.08: breach of a community order.
ix) 6.10.11: at Harrow Crown Court, after a trial by jury, he was convicted of assault occasioning actual bodily harm. On 28.11.11, he was sentenced to 15 months imprisonment.
Length of detention
"Whether the current situation in Mogadishu is such as to entitle a national of Somalia whose home area is Mogadishu to succeed in their claims for refugee status, humanitarian protection or protection against refoulment under Articles 2 and 3 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection."
Typically, country guidance decisions from UTIAC are reserved for several months because of the complexity of the issues and the volume of expert evidence. Of course, if the Somaliland authorities agree that the Claimant is a citizen of Somaliland and consent to entry, the alternative option of removal to Mogadishu is unlikely to be in play any longer.
Deportation to Mogadishu, Somalia
"1) Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the majority of the population, does not apply. The significance of this category should not, however, be overstated "
"2 The armed conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect of any person in that city, regardless of circumstances. The humanitarian crisis in southern and central Somalia has led to a declaration of famine in IDP [internally displaced persons] camps in Mogadishu; but a returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in such a camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability."
Deportation to Somaliland
"In 2010, the FCO reported that the authorities in Somaliland and Puntland will only admit failed asylum seekers returning from European countries who originate from their territory or those who have close affiliations to the territory through clan membership. In the case of majority clan affiliates, this means those associated with the Isaaq in Somaliland The Tribunal in AMM and Others concluded that there is no evidential basis for departing from the conclusion in NM and Others, that Somaliland and Puntland in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans "
The diligence, speed and effectiveness with which the Secretary of State has progressed the Claimant's proposed deportation to Somalia or Somaliland
"In order to give further consideration to the above, I would be grateful if you would ask [the Claimant] the following questions. The replies may be faxed, with the confirmation of conveyance slip to [number]"
"|I cannot confirm that we did not have the full completed questionnaire."
"[The Claimant] is from Somalia, he states he does not know the name of the clan he belongs as he came to the United Kingdom when he was a child. He further states his father is deceased and he does not know the whereabouts of his mother in Somalia. He has not claimed asylum or indicated that he cannot return to Somalia. When [he] is served with a deportation order he will have an in-country right of appeal against our decision to deport him. Once his appeal rights become exhausted we will be able to obtain an EU letter and set removal directions to return him to Somalia within a reasonable time scale"
"It is not yet known where in Somalia [the Claimant] is from and his clan. Further checks is (sic) necessary to establish whether there is a realistic prospect in his removal from the UK"
"We are continuing to make arrangements to obtain a travel document for your clients removal from the United Kingdom. However, your client has not provided us with any evidence to prove his identity."
"Note for CO: We need to establish full immigration history, clan and his place of birth to assess prospects of removal. This should be done before the next DR."
" He has been convicted of a serious ofence of assault occasioning actual bodily harm..The PO told me that a deportation decision would be made and served on A in the next few days. I have seen no evidence of the level of risk he may present of causing harm to members of the community. He admits having used aliases but there is no evidence of the circumstances in which he did so. He appears to have no close relationships with a partner or other relatives in the UK. He has offered no sureties. There is no evidence to show that he would be willing to return voluntarily to Somalia. Having considered all the above factors I am satisfied that, if granted bail, he is likely to abscond." (emphasis added).
i) On 22nd May 2013, a pre-action protocol letter from new solicitors, Leigh Day & Co., threatening to commence judicial review proceedings in respect of unlawful detention on 5th June 2013.
ii) On 4th June 2013, Ms Howell's discovery of the missing questionnaire pages with the claim to an exception from deportation on human rights and refugee convention grounds, which prompted her to write to the Claimant and his solicitors asking for the reasons in support of his claim.
iii) In response to Ms Howell, on 5th June 2013, a detailed letter from Freemans, his immigration solicitors, setting out the Claimant's case under the Refugee Convention and Art. 3 and Art. 8 ECHR.
The diligence, speed and effectiveness with which the Secretary of State has progressed the Claimant's case in respect of his family
"It is now accepted that both of your children do hold British nationality"
Lawfulness of detention