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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> DM (Tanzania)), R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 2351 (Admin) (02 September 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/2351.html Cite as: [2019] EWHC 2351 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
____________________
THE QUEEN (on the application of DM (TANZANIA)) |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Ms Hafsah MAsood (instructed by Government Legal Dept.) for the Defendant
Hearing date: 19 June 2019
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Crown Copyright ©
Miss Alison Foster QC :
Introduction
More detailed Background
"The ETD was sent to the Tanzanian High Commission on 06 August 2018 and timescales dictate a window of 3 months to issue said document. The Case owner should now contact RL with a view to obtaining an update from the HC. As it has already been 3 months a document may already be available. I note that following the grant of Bail on 26 September 2018 we are now awaiting confirmation from the Probation Service that the address proposed by CCAT is appropriate. We were advised on 19 November 2018 that Probation have forwarded the request to Police whom he feels are in a better position to conduct an assessment."
The reviewer commented that the presence of an EDT might encourage a voluntary departure- "should he choose to withdraw any outstanding representations we could remove him imminently". The asylum decision together with judicial review were noted as still being barriers to removal and it was concluded "Consequently, I am content to authorise detention until a suitable address is available".
"The Defendant advises that there has been a delay in the provision of a decision to the asylum claim due to recent IT outages which significantly impacted the Defendant's ability to access his IT system and draft decisions for the period 11-14 December and 17 December 2018."
Legal Framework
Immigration Detention
"46.
(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 is 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 had 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 would abscond; and the danger that, if released, he will commit criminal offences."
"64. … there must be a 'sufficient prospect of removal' to warrant continued detention, having regard to all the other circumstances of the case … What is sufficient will necessarily depend on the weight of the other factors: It is a question of balance in each case.
65. … [there is no legal requirement] that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. … of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was "some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be" (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some 4 years when regard was had to other relevant factors, including in particular the high risk of absconding and of reoffending if A were released:
66…. "some" prospect in this context plainly means a realistic prospect."
"The risks of absconding and re-offending are always of paramount importance, since, if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one"
"[i]f there is simply no prospect of removal within a reasonable time, it seems to me these risks [of absconding and reoffending] are irrelevant. However, many cases occupy a grey area, and to my mind the concept of "sufficient prospect" must to some extent be a flexible one, accommodating all the circumstances of the case… these cases are all heavily fact sensitive … it [is] necessary to quantify the risks and to weigh them in the balance against everything else."
"12. The Hardial Singh principles, although approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first that compulsory detention must be properly justified, and, secondly that statutory powers must be used for the purpose for which they are given. To found a claim in damages for wrongful detention, it is not enough that in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure he would no longer have been detained."
Accommodation under the IAA 1999
"The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –
(a) He was (but is no longer) an asylum-seeker, and
(b) His claim for asylum was rejected."
"3. Eligibility for and provision of accommodation to a failed asylum- seeker
(1) … the criteria to be used in determining the matters referred to in … respect of a person falling within section 4(2) … of that Act are:
(a) that he appears to the Secretary of State to be destitute and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that –
…
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of the person's Convention rights, within the meaning of the Human Rights Act 1998."
"69. I … conclude that the statutory power in s.4(1)(c) is a power coupled with a duty. It is unnecessary to decide whether the duty extends to the existence of a policy of the kind I have been describing because there is one. The policy itself is not challenged as being unlawful. In my judgment, as [counsel for the SSHD] was inclined to accept, there is a duty to operate that policy fairly and rationally. That involves a duty to determine applications fairly and rationally and to apply the relevant policy. … This must extend to all the parts of the process for which the SSHD is responsible."
And further:
"76. Delay in processing an application whose outcome will affect the liberty of the applicant may require the intervention of the court. R v SSHD ex parte Phansopkar [1976] QC 606, 626B-G per Scarman LJ is authority for this, if any were needed. This is a principle of the common law. That was a case where the right to family life under Article 8 was engaged rather than the right to liberty, but the common law has always protected the right to liberty. Habeas corpus and bail are creations of domestic law in England and Wales. In R (Noorkoiv) v SSHD [2002] EWCA Civ 770; [2002] 1 WLR 3284 the Court of Appeal held that the obligation to avoid delay in determining a person's right to be released is a more intense obligation than the duty to try criminal within a reasonable time. Lack of resources and administrative necessity do not justify such delays. This was a decision framed in terms of Article 5. It is authority for the need for public authorities to have effective systems for taking steps which are designed to affect [sic] the release from detention of any person."
"25. In forming a judgment as to whether the second step in carrying out the defendant's duty of seeking potentially suitable addresses has been taken fairly, rationally and with reasonable expedition it is right to bear in mind that 'there is a very limited supply of Complex Bail Accommodation' as the policy guidance document explains. Also, to be borne in mind are the further stringent requirements for accommodation to be suitable for the claimant which stem from his offending history, the risk assessments that have been carried out on him and the conditions that have been set for his licence."
Guidance
"… the starting point in these cases remains that the person should be granted immigration bail unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attentions must be paid to their individual circumstances.
In any case in which the criteria for considering deportation action (the "Deportation Criteria") are met, the risk of reoffending and the particular risk of absconding should be weighed against the presumption in favour of immigration bail. 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 consequences 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 immigration bail is displaced after an assessment of the need to detain in the light of the risk of reoffending and/or the risk of absconding."
"… substantial weight should be given to the risk of further offending or harm to the public indicated by the subject's criminality. Or if the likelihood of the person re-offending and the seriousness of the harm if the person does reoffend, must be considered. Where the offence which has triggered deportation is more serious, 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 granting immigration bail.
In cases involving these serious offences, therefore, a decision to grant immigration bail is likely to be the proper conclusion only when the fact is in favour of release are particularly compelling. In practice, immigration bail is likely to be appropriate only in exceptional cases because of the seriousness of violent homosexual, drug related and similar offences. …"
"(a) The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation).
…
If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example removal, cannot be effected within that reasonable period, the power to detain should not be exercised …"
"Imminence
55.3.3.4 In all cases, case workers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks.
…
At risk of absconding
55.3.2.5 If removal is not imminent, the case worker should consider the risk of absconding. Where the person has been convicted of a more serious offence then this may indicate a high risk of absconding. An assessment of the risk of absconding will also include consideration of previous failures to comply with immigration bail.
Submissions of the Claimant
Hardial Singh Principle (ii) & (iii)
General public law grounds
Detention Contrary to Article 5 ECHR
"Padfield Purpose" of the exercise of the power to detain
"I note the case has been referred as appropriate, there is clear progression however given the recent bail grant I will authorise detention to enable probation services to obtain an address. We will need to continually chase this as detention powers are now up against the grant. We will also need to be mindful prior to release as we need to inform the tribunal as per the grant notice.
Nonetheless, I agree with C/O assessment above and detention should be maintained to mitigate risks and manage contact in the community. He has shown a blatant disregard for UK laws both criminal and immigration and therefore detention would remain appropriate."
"I agree that detention is warranted pending the procurement of a suitable address for which (sic) is an essential requirement for his release as per the grant of bail on principle. Once this is secured and agreed by the Offender Manager, we can facilitate release with clear mitigation of risk in place in line with the Judges (sic) request.
Whilst the section 4 accommodation is being sourced we have referred the case for consideration of the asylum further representations which are being prioritised at this time. We have responded to the PAP.
The risks associated with release have been fully considered and do outweigh the presumption to liberty at this time. He is not an adult at risk who engages the policy.
In light of the above, I am content to maintain detention whilst the accommodation is being proactively sourced."
SSHD's Submissions
Consideration
"Delay in processing an application whose outcome will affect the liberty of the applicant may require the intervention of the court. R v SSHD ex parte Phansopkar [1976] QC 606, 626B-G per Scarman LJ is authority for this, if any were needed. This is a principle of the common law. …
… In R (Noorkoiv) v SSHD [2002] EWCA Civ 770; [2002] 1 WLR 3284 the Court of Appeal held that the obligation to avoid delay in determining a person's right to be released is a more intense obligation than the duty to try criminal within a reasonable time. Lack of resources and administrative necessity do not justify such delays. This was a decision framed in terms of Article 5. It is authority for the need for public authorities to have effective systems for taking steps which are designed to affect [sic] the release from detention of any person."
"It is clear Woolf J was not saying that a person can be detained indefinitely provided the Secretary of State is doing all she reasonably can to effect removal."