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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 >> Babbage, R (on the application of) v Secretary of State for the Home Department  EWHC 148 (Admin) (01 February 2016)
Cite as:  EWHC 148 (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 Babbage
|- and -
|Secretary of State for the Home Department
S. Skinner (instructed by GLD) for the Defendant
Hearing dates: 9th – 15th December 2015
Crown Copyright ©
Mr Justice Garnham:
The Secretary of State's Evidence and Disclosure
"21. Dealing first with the issue of disclosure, the Defendant notes that the Claimant has submitted a large amount of documentation in support of his claim which has originated from the Defendant. Indeed, not withstanding that the Claimant is represented by experienced immigration specialist legal representatives, he has failed to identify any specific documents or even class of documents that it is alleged the Defendant has failed to disclose."
"By 4pm on 13th November 2015, the Defendant shall (i) file and serve detailed grounds for contesting the claim and any written evidence, and (ii) disclose all documents relevant to the reasons for the Claimant's detention (in particular, but not limited to, all reviews of the Claimant's detention and all documents relevant to the prospects of removing him to Zimbabwe) or file and serve an explanation in respect of any such documents which cannot be disclosed."
80. … [The SSHD] … urged the court not to punish the Secretary of State for not filing evidence, and referred to the scarcity of resources, the heavy litigation burden on the Secretary of State, and the need to prioritise resources on those currently detained. The latter submission may reflect the position in which this part of the public services finds itself, but it was not and could not have been an invitation to the court to give the Secretary of State a privileged position in litigation. There is equally no question of the court punishing the Secretary of State or treating her less favourably than other litigants. The judge stated the correct position clearly. He observed (at ) that:
'Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk'. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party … The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthrope in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment  UKPC 6 at ] 'to co-operate and to make candid disclosure by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings…'. "
"My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War. For the reasons given by my noble and learned friend, Lord Woolf, and on principle, I am satisfied that injunctions and contempt proceedings may be brought against the minister in his official capacity and that in the present case the Home Office for which the Secretary of State was responsible was in contempt."
"It was an unpleasant robbery of a person using a personal connection… The aggravating features, of course, are that this was the home of the Complainant. There is… an element of planning and background here. Going to somebody's home, then threatening them and letting in a boyfriend, in my view is an element of planning. There was a weapon waved about, albeit it not one that was actually brought to the premises. There was violence. There was more than one person. All aggravating features…
As far as Mr Babbage is concerned, he is in a worse position because he was on an order at the time for a similar kind of dishonest behaviour: snatching of a necklace… He was on a community order at the time when this offence was committed, making it more serious…
I have considered the question of dangerousness but I do not think that arises. I agree with the Probation Service that it does not arise in this case. In the round, a nasty robbery against a person who was in his own home and who had very little opportunity to escape from the attack and the action of these two confident defendants."
"Not possible to give a reasonable timescale for removal. Mr Babbage does not wish to return to Zimbabwe. An emergency travel document was to be applied for at the Zimbabwean High Commission on 21st August 2013 however his passport has expired and for him to have a face to face interview with the Zimbabwean authorities he must first sign a disclaimer."
The Competing Arguments
"(i) The Secretary of State must intend to deport the person and can only use the powers to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all 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."
"If there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful."
Discussion and Conclusions
The Legal Framework
"1. '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'. (Paragraph 121)
2. Whilst periods of detention during which the detainee seeks to exhaust appeals or other legal proceedings against his removal cannot be entirely discounted, 'if a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his deportation during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances'. (Paragraph 121)
3. A refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. Other than in relation to the question of whether there is a risk of absconding, a refusal of voluntary return may still be taken into account but must be regarded as having limited relevance (Paragraphs 123 and 128)."
"In considering whether at any stage there is a reasonable prospect of removal, the relevant question is whether there is a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors, including any risk of absconding and any risk of danger to the public if the detainee were at liberty."
i) During the period since the start of administrative detention, what was the risk of the Claimant absconding if released from detention and what would be that risk now?
ii) During the same period, what was the risk of the Claimant reoffending if released, and what is that risk now?
iii) Were there other bars to removal?
iv) Did the Claimant ever consent to removal?
v) What is the significance of the Claimant's refusal voluntarily to return? and critically;
vi) Is there at present a reasonable prospect of removing the Claimant?
The Risk of Absconding
Risk of Reoffending
Bars to Removal
"We are continuing to make arrangements to obtain a travel document for your removal from the United Kingdom. However this is taking longer than we would like because you fail to sign a voluntary disclaimer…"
"The official asked me if I was 'ready to go back', to which I replied 'no'. He said that there are currently no enforced removals to Zimbabwe, only voluntary returns. At the end of the interview the official said that they would not be providing me with a travel document."
"You attended an ETD interview at the Zimbabwean Embassy on 5 August 2015, however, you were non compliant with the process and an ETD was not issued."
"(1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that –
(a) the action will or may enable a travel document to be obtained by or for the person, and
(b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom.
(2) In particular, the Secretary of State may require a person to
(a) provide information or documents to the Secretary of State or to any other person;
(b) obtain information or documents;
[(c) provide biometric information (within the meaning of section 15 of the UK Borders Act 2007), or submit to a process by means of which such information is obtained or recorded;]
(d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom;
(e) cooperate with the process designed to enable determination of an application;
(f) complete a form accurately and completely;
(g) attend an interview and answer questions accurately and completely;
(h) make an appointment.
(3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1)."
Did the Claimant Ever Consent to Removal?
"We have had a request from the caseowner to proceed with the asylum interview, although Mr Babbage… has stated that he wants to return home. However, he has refused to sign the IS 101PA to withdraw his asylum claim until he has spoken to his solicitor, therefore an interview cannot be arranged at the ZWE High Commission"
The Significance of the Claimant's Refusal Voluntarily to Return
"50. … I too consider that [refusal of voluntary repatriation] is a relevant circumstance, but in my judgment it is of little weight. (Counsel for the Secretary of State) submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention.
51. I cannot accept that the first of (the Secretary of State's) reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable. If (the Secretary of State) were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.
52. I turn to [the Secretary of State's] second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance namely the likelihood that the detained person will abscond if released.
53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.
54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case… In my judgment, the most that can be said [of the appellant I] is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases…"
"128. … The fact that the detained person has refused voluntary return should not be regarded as a trump card which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at paragraph 51 of my judgment in I's case, 'The refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided the Secretary of State was doing its best to effect the deportation'."
A Reasonable Prospect of Removing the Claimant?
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made…"