This application is a renewed application for permission to appeal made by Mr Gideon Tawonezwi in person. He has been produced from custody for that purpose. He is a Zimbabwean national who entered this country in February 2000 on a valid visitor’s visa but who remained here illegally until in September 2005 he was arrested and found to be working illegally. Thereafter he was sentenced to 18 months’ imprisonment for offences which were all in one way or another connected with his illegal overstay: having a forged stamp in his passport purporting to grant him leave to remain and using that passport to obtain employment. He pleaded guilty and was sentenced in October 2005 to 18 months’ imprisonment, in the course of which a notice of intention to deport him on release was served upon him. By the time of his release in June 2006 he had initiated an asylum claim which was later refused by the Secretary of State and was rejected also on appeal. Since his release from his prison sentence, however, Mr Tawonezwi has been held in administrative custody pending removal.

Now removals to Zimbabwe, for well-known political reasons, have been suspended for a considerable period of time, and the options which are ordinarily open in such a case are accordingly limited. They are, in effect, that either Mr Tawonezwi must accept voluntary repatriation (and the asylum decision shows that he has nothing to fear from voluntary repatriation) or he has to remain in custody in this country unless it is decided that he is entitled to bail. Both of those options in the present case have been closed down; in the first instance by Mr Tawonezwi’s refusal to accept voluntary repatriation and in the second by the refusal of bail by courts and tribunals in whose power the grant of bail lies.

What has brought the case first into the Administrative Court and now to this court has been an application, made until now with the assistance with competent lawyers, for judicial review in the form of a mandatory order requiring Mr Tawonezwi’s release forthwith from detention together with a declaration that his detention has been unlawful, and damages.

At every stage this application has failed. Hodge J refused permission to apply on sight of the papers, on the ground that the situation was of Mr Tawonezwi’s own making because of his refusal to return voluntarily. A renewed application for permission to apply for judicial review was heard and rejected by Mr Michael Supperstone QC sitting as a Deputy High Court Judge in December 2007. This is the decision which it is now sought to appeal.

On consideration of the papers in this court, however, Keene LJ refused permission and wrote:

The grounds on which it is said on Mr Tawonezwi’s behalf, and now by Mr Tawonezwi himself, that the decision of Mr Supperstone is mistaken in law are these: first of all that the availability of voluntary return, while a relevant fact, is not a decisive or fundamental fact, and that there is a division of judicial opinion in the decided cases about its importance; secondly that Mr Tawonezwi, if returned, would be returned, even if voluntarily, as a failed asylum seeker and might be at risk on that score since it is not yet conclusively decided by the Asylum and Immigration Tribunal whether such people are generically at risk; thirdly it is said that while there is undoubtedly a history of breach of immigration controls and fraud in aid of the breaches, Mr Tawonezwi had the benefit of good conduct while in prison, had pleaded guilty and, it is said though not proved, has a sister in the United Kingdom who will give him some anchorage here if bailed.

I think the first two things that need to be distinguished are the grant of bail, which is always a matter of judgment and always capable of fresh consideration -- I say that to distinguish it from reconsideration -- and on the other hand the lawfulness of somebody’s detention. A person who might have been or even arguably should have been bailed, and has not been, is not by that token falsely imprisoned. There is, it seems to me, a confusion in the case that has been advanced on Mr Tawonezwi’s behalf between the two things. The fundamental question seems to me necessarily to be a question of the lawfulness of his detention, and the attack upon it cannot depend upon the refusal of bail; the refusal of bail is simply what makes the detention continue. What is said to make it unlawful is that Mr Tawonezwi is in effect being punished by imprisonment for refusing to return to Zimbabwe voluntarily at a time when the United Kingdom government itself is not returning people compulsorily.

As to this, it is true that in the decisions referred to by Ms Ward, Mr Tawonezwi’s former counsel, there are differences of emphasis. The decision of this court in the case of R (A) v SSHD [2007] EWCA Civ 804 was a majority decision, that of Longmore and Toulson LJJ, which placed central emphasis upon the view that a person who was resisting deportation by refusing to go voluntarily was the author of his own misfortune if instead he was held here in prison. Keene LJ preferred a different emphasis. He said, and accept this as cogent, that the refusal of the detainee to return voluntarily is not some kind of a trump card. What it relates to principally, in the view of Keene LJ and in an earlier case of Dyson LJ, is the likelihood of absconding if instead of being held in prison here the detainee is released on bail.

That is a distinction which therefore does not bear upon the lawfulness of detention. What ultimately I think is capable of bearing on it is the possibility that the sheer length of detention may at some stage become such that it outweighs in proportionality the reasons for it. The difficulty that is faced, however, in any such case is that the length of detention is only a response, however long it is, to the refusal of the detainee to be removed voluntarily.

It seems to me in the present case that this is a point of time which has not arguably been passed. I know that it is now two years since Mr Tawonezwi moved out of penal detention and into administrative detention, and that is an uncomfortable and unhappy situation for any state to find itself in or for any individual to find himself in. But I am not able to accept that there can have arisen, in the situation I have described, any change in the legality of Mr Tawonezwi’s detention. He remains in prison here because, and only because, he will not accept voluntary repatriation. As I have said, there is no reason in terms of a legitimate fear of persecution or violation of human rights for him to fear repatriation. The matter remains one of his choice.

I would urge him now to accept, as I am afraid he must do, that there is no further recourse at the present stage to the courts in this country, because it seems to me that I am unable to give him permission to appeal. What he must do is face his situation squarely and accept that his only way out of prison is by voluntary repatriation to Zimbabwe. That, rather than any legal recourse, is the solution to his continued imprisonment.

I am afraid for these reasons, Mr Tawonezwi, I have to refuse you permission to appeal. I hope you will understand in the light of what I have said that there is a hard but realistic choice that you must now make.