MB v Secretary of State for the Home Department

This is an application for permission to appeal against the order of Mitting J, by which he quashed a decision of the Secretary of State to continue the detention of the applicant pending his removal from the jurisdiction pursuant to an order for his deportation to Iraq. The fact that the applicant succeeded before the judge makes this application a little unusual, but the reasons for it will become apparent in a moment.

The applicant is a national of Iraq. He entered this country illegally on 3 June 2002 and claimed asylum the next day. His claim was rejected, but he was granted exceptional leave to remain until 10 July 2006. On 22 December 2003 he was convicted of street robbery before the Crown Court in Coventry, for which he was sentenced to a period of three-and-a-half years’ detention and recommended for deportation. On 25 January 2005 he was served with a notice of the decision of the Secretary of State to make a deportation order against him and did not appeal against that decision. The applicant completed the custodial part of his sentence on 25 March 2005 and was released, but on 22 March 2005 a deportation order had been made against him and he was therefore immediately detained in the exercise of the Secretary of State’s powers under the Immigration Act.

The deportation order itself was served on him on 1 April. The applicant appealed against the deportation order out of time, but his appeal was dismissed by the Asylum and Immigration Tribunal in December 2005. He was then kept in detention until Mitting J ordered his release on bail in November 2007. The reason for the applicant’s detention lay partly in the fact that he was unwilling to leave the country voluntarily. Although he is of Kurdish ethnicity, he had not been living in the Kurdish region of Iraq and could not therefore be returned to that part of the country, since the authorities there are not willing to accept the return of those who were not previously living in that region. It is possible to travel to Baghdad by scheduled flights, however, and deportees to Iraq who are willing to leave this country are returned by that means, but those who are not willing to leave, and who therefore have to be forcibly returned, must be escorted and therein lies the problem. Baghdad is regarded as an unsafe destination for United Kingdom nationals, and the Home Office currently takes the view that it cannot ask those who would escort deportees to Iran to undertake that task, having regard to the risks to their safety. One consequence of all this is that, since the applicant is unwilling to return to Iraq, he cannot be deported until the situation improves and there appears to be no prospect of its doing so in the foreseeable future.

By the time the matter came before the judge the applicant had been in administrative custody for about twenty-three months. The judge recognised that there was a risk that he would abscond if released and that there was a risk that he would commit further offences, but he held that by the date of his decision his detention had become unlawful and that he should therefore be granted bail. The judge made an order accordingly, attaching some stringent conditions to his bail designed to minimise those risks. In reaching that conclusion he did not express any view as to when the applicant’s detention had become unlawful; he simply held that it had become unlawful by the date of the hearing and granted him bail.

The Secretary of State sought and obtained from the judge permission to appeal against his order. The grounds on which such an appeal would have been made are not entirely clear, but it appears that she wanted the right to challenge the judge’s conclusion that detention for a period of twenty-three months in this case was too long, even though the main reason for its continuation was the applicant’s refusal to leave the country voluntarily. However, in the end the Secretary of State decided not to pursue the matter and did not file a notice of appeal. Time for filing a notice of appeal expired on 21 December 2007, and on that day the applicant filed his own notice seeking to vary the judge’s order to include both a declaration that he had been unlawfully detained from 19 April 2006 and an order for damages.

The grounds of appeal are that the judge failed to decide at what date the applicant’s detention became unlawful. It is said that he should have found that by 19 April 2006 the applicant had made it clear that he would not leave voluntarily, that there was no realistic prospect of the Secretary of State’s removal of him forcibly because of the situation in Baghdad and that she did not intend to do so. The real complaint in this case, as appears clearly from the appellant’s skeleton argument, is not that the judge’s order was wrong, so far as it went, but that he failed to deal with the whole of the claim before him which included a claim for damages for wrongful detention in respect of the period between 19 April 2006 and the date of his release on bail.

Mr Jones says that those questions were addressed in argument before the judge and that various dates were canvassed as being the point at which the applicant’s detention became unlawful. That may be so, but in order to identify what the issues were before the judge and what issues it was necessary for him to decide one must look at the claim form, the particulars of claim and the submissions made to the judge at the hearing. The claim form itself seeks judicial review of the Secretary of State’s decision to detain the applicant and his continuing detention pursuant to that decision. One of the remedies sought in the claim form was an award of damages in respect of that detention, but that part of the claim does not appear to have been pursued, because one finds no reference to a claim for damages anywhere in the particulars of claim. Nor, more importantly, do the particulars of claim identify a date on which the applicant alleges that his detention became unlawful, which would be essential to support such a claim. On the contrary, the case as there set out was directed solely to obtaining his release. The applicant set out the facts which he alleged rendered his detention unlawful, but, since no particular dates are identified, the only rational way of reading the particulars of claim is as containing an assertion that his detention was unlawful as from 25 March 2005, and remained unlawful at all material times thereafter. The thrust of the case was that he was entitled to be released and, in support of that, he indicated his willingness to comply with whatever conditions might be imposed on him.

The matter does not end there, however. A party’s skeleton argument for the hearing ought in any event to deal fully with all the issues before the court. As such, it should identify the relief which the claimant seeks and the facts which he says entitle him to obtain it, and it should do so in a way that makes his case clear to the court. In paragraph 6 of his written submissions, the applicant put forward the argument that his detention had become unlawful, the implication being that the position was being viewed at the date of the hearing. The culmination of the argument was that the decision to continue the applicant’s detention was incompatible with the Secretary of State’s policy and was therefore unlawful. One finds no reference to any date prior to the date of the hearing by which it was said that his detention had become unlawful, nor any hint of a claim for damages.

At the conclusion of the hearing, and following the delivery of the judgment, there were some exchanges between the judge and counsel in the course of which the judge made it clear that he had not made any finding about the date upon which the applicant’s detention had become unlawful because he did not think it necessary to do so. No one suggested that it was necessary for him to deal with that question, or that he had failed to deal with an important part of the applicant’s claim, as is now said to have been the case. I do not find it at all surprising that in the course of argument counsel canvassed with the judge various dates upon which it might be said that the applicant’s detention had become unlawful, since that was almost an inevitable part of putting forward the argument that by the date of the hearing he was entitled to his release. It does not follow that the applicant was putting before the court and maintaining a substantive claim for damages based on an allegation that his detention from a particular date had been unlawful. The judge’s function is to decide the issues before the court, and these may undergo a certain amount of development between the issue of the claim form and the hearing itself. Whatever may have been the position when the claim form was issued, by the time of the hearing the precise date on which the applicant’s detention had become unlawful – if indeed it had – was not an issue. In order for him to obtain the relief he was seeking, namely his release, it was sufficient for him to persuade the court that his detention had become unlawful by the date of the hearing. That is all the judge had to decide in order to dispose of the application as it stood before him and that is all that he did decide. I can see no grounds for saying that he ought to have decided other issues which, at that stage, were irrelevant in the case as it was being put before him. In my view there is no prospect of this court holding that the judge failed to deal with part of the case before him and I would therefore refuse permission to appeal.

I agree.