ZA (Iraq), R (on the application of) v Secretary of State for the Home Department

The Deputy Judge’s conclusion that the Respondent was at all times entitled to take the view that the Appellant might co-operate in the removal process in due course was a conclusion which was not reasonably open to him upon the basis of the Respondent’s own case. While the Respondent did not file any evidence as to what were the views of those officials who were acting on her behalf between July 2007 and August 2009, an Acknowledgement of Service dated 8^th September 2008 was filed in response to the Appellant’s application for permission to claim Judicial Review. Section C of that Acknowledgement of Service cross-referred to attached Summary Grounds of Defence. Section E contained a statement that “The defendant believes the facts stated in this form are true.” The Summary Grounds identified a number of factors which the Respondent submitted were relevant for the purpose of applying the Hardial Singh principles. One of those factors was said to be “The Claimant’s refusal to repatriate voluntarily.” Under this heading, paragraph 25 of the Respondent’s Summary Grounds said:

“As well as being evidence of a risk of absconding, this is a very significant factor in itself because there is a big difference between detention when there is no prospect of removal and detention when the Claimant could return voluntarily (per Toulson LJ at §54 of A). In this case, the Claimant was repeatedly offered the chance to return voluntarily (for example in each of the monthly progress reports from November 2007 to May 2008), together with a cash incentive of up to £500 to reintegrate, and yet he did not take up the offer. The fact that he no longer has an Iraqi passport is of no significance as the necessary travel documents could easily have been obtained, if he had expressed a willingness to return.”

The Appellant’s continued unwillingness to return voluntarily to Iraq was repeated in paragraph 63 of the Respondent’s Detailed Grounds of Defence dated March 2013:

“The detention review of 15 July 2009 notes that he “was offered FRS [Facilitated Return Scheme] on 5 December 2007, and has been offered FRS with every monthly detention review but to date he has not elected to submit an application on this basis.”

The Deputy Judge’s conclusion in paragraph 36 of the judgment appears to have been based on a submission made in the Respondent’s Skeleton Argument, but that submission was contrary to the Respondent’s own pleaded case: that the Appellant was unwilling to take up the Respondent’s repeated offer of the opportunity to return voluntarily under the FRS. Given that the Appellant had been in the United Kingdom since 1973 that unwillingness was not in the least surprising, and was reflected in the representations that had been submitted by the Appellant’s Solicitors on the 18^th September 2008 which explained why he wished to remain in the UK, and which included the following statement:

“Furthermore in the light of the current situation in Iraq our client could not voluntarily return and obtain entry clearance…This would be impossible…..”

Mr. Staker accepted that his Skeleton Argument for the hearing before the Deputy Judge had been in error in submitting that:

“There is nothing to suggest that the Appellant in this case has ever made it clear that he would not leave voluntarily.”

The Respondent’s submission, which the Deputy Judge accepted in paragraph 41 of the judgment, that the cases listed in paragraph 40 of the judgment demonstrated that over the period of six and a half years from March 2005 to September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful is, to put it charitably, oversimplistic. Six cases are listed in paragraph 40 of the judgment, as follows:

“(1)

25 March 2005 to 30 November: R (Bashir) v SSHD [2007] EWHC 3017 (Admin)

(2)

31 July 2006 to 7 September 2007 (and continuing): Claimant 1 in R (MMH) v SSHD [2007] EWHC 2134 (Admin)

(3)

30 October 2006 to 7 September 2007 (and continuing) Claimant 2 in MMH

(4)

6 December 2006 to 8 January 2008: Claimant 2 in Ibrahim v SSHD [2010] EWHC 764 (Admin)

(5)

3 August 2007 to 1 July 2008: Claimant 1 in Ibrahim

(6)

11 November 2007 to 8 January 2009: R (Murad) v SSHD [2012] EWHC 1112 (Admin)

(7)

18 May 2008 to 19 February 2010: R (A) v SSHD [2010] EWHC 625 (Admin)

(8)

May 2008 to September 2011: R (Mahmoud) v SSHD [2012] EWHC 2201 (Admin).”

In two of those cases, Bashir and A (Iraq) the Court merely decided that the Claimant’s detention had become unlawful by the date of the hearing and said nothing, either by omission (Bashir) or expressly (A (Iraq)) about whether his detention prior to that date had been unlawful. In MMH, which was decided on 7^th September 2007 Beatson J (as he then was) was considering the lawfulness of the continued detention of two claimants who had been detained for 13 and 9 months respectively (paragraph 40). He had the benefit of evidence which had been filed on behalf of the Secretary of State which explained the Secretary of State’s view as to the prospects for enforced returns to Iraq in September 2007 (paragraph 18). In the light of the evidence before him Beatson J concluded that, despite its length, the period of detention of the two Claimants was not unlawful. The evidence led him to conclude in paragraph 37 of the judgment that:

“In the present case, there are arrangements in the form of an agreement between the British and Iraqi governments as to the reception of returnees and available routes. I do not accept Mr Southey's submission that the fact that there had been enforced removals to Somalia prior to August 2004 provides a significant distinction. Since the decision to institute a programme of enforced removals to Iraq in 2004, arrangements have been put in place for all parts of the country. The only inhibiting factor in relation to southern Iraq is the Foreign Office's advice. If the lack of a viable route into Somalia between August 2004 and July 2006, and the failure until April 2006 to take any positive steps with commercial carriers did not prevent there being a realistic prospect, neither does the Foreign Office advice in the present case, where all the other arrangements are in place.”

Beatson J’s conclusion in MMH that there was still a realistic prospect of removal to Iraq in September 2007, notwithstanding the fact that there had been no enforced removals to Iraq since a decision had been taken to commence an enforced removals programme in February 2004” (see R (MMH) v SSHD [2007] EWHC 2134 (Admin at [18], [30] and [37]), must be considered in the light of the subsequent conclusion of Burnett J (as he then was) in MI Iraq and AO Iraq (referred to as Ibrahim in the list of decisions) on 13^th April 2010. Having considered the Respondent’s evidence which had been before Beatson J in MMH (above), Burnett J referred to other evidence in paragraph 57 of his judgment:

“The Country Policy Bulletin 1/2007, dated 27 February 2007, pre-dates the evidence of Ms Honeyman just referred to, but confirms the position she described. An Operational Guidance Note of October 2008 noted that the security position in Iraq remained poor. There had been a marked improvement in the second half of 2007 and into the beginning of 2008 but the position had then reversed. As noted in paragraph 2.8 of that document there had been an outbreak of serious fighting between government forces and Shia militia in Baghdad in March, April and May 2008. In October 2008 a planned announcement by the Iraqi Prime Minister that the security situation in Southern Iraq had changed to the extent that British troops were no longer needed, was not made. This summary explanation of the security position no doubt explains why forced removals remained unachievable throughout 2008. The 2009 Operational Guidance Note from June 2009 is also before the court. With the advantage of a broad review of all material available from 2008, it noted an overall improvement with significant stabilisation in Southern and Central Iraq during 2007 and 2008 (paragraph 3.6.3).”

Burnett J noted that the detention reviews of both claimants had said that there were “no current plans to commence returns” to the claimants’ area of Iraq (paragraphs 59 and 60). His conclusions in respect of MI are contained in paragraphs 61-63:

“61.

I have noted that the Secretary of State has not filed evidence in this case directed towards this aspect of the Hardial Singh limitations. That creates an evidential difficulty. As Laws LJ emphasised in SK (Zimbabwe) it is for the Secretary of State to demonstrate by evidence that the Hardial Singh principles have been adhered to. I have little doubt that there was a hope that the security position in Southern and Central Iraq would improve sufficiently to allow enforced removals to commence. As the documents to which I have referred demonstrate there was what turned out to be a temporary improvement in late 2007 but the position soon reversed. Leaving aside any delays that might be generated by the need for bilateral discussions with the Iraqi authorities and other practical arrangements, it is clear that an improvement in the security position sufficient to allow escorts to travel with those being returned would need to be sustained before arrangements could be put in hand for enforced returns. It is a matter for concern that there is no information before the court which explains the Secretary of State's view during 2008 of when realistically enforced returns to Southern Iraq might be achieved. There is no evidence of the potential obstacles to commencing such removals or of the steps being taken to overcome them.

62.

I am obliged to evaluate whether this aspect of the Hardial Singh limitations was respected, by reference to the material that is before the court, and decide whether the Secretary of State has shown that removal could be achieved within the reasonable time I have identified in Mr Ibrahim's case.

63.

My conclusion is that it was apparent in Mr Ibrahim's case in the Summer of 2008 that it would not be possible for the Secretary of State to effect deportation within the reasonable period of 16 months overall detention that I have identified. No enforced removal was taking place because the security position in Iraq did not allow it. That security situation had not improved overall in the first half of 2008. None had taken place for five years, or thereabouts. By the summer of 2008 there appeared to have been a reversal of some of the improvements that had been noted in 2007. In the absence of a significant improvement no enforced returns would be achievable for many months, at the least. That improvement would have to be sustained before returns could be organised and even then it would inevitably take time to make the necessary arrangements. In the July Detention Review in Mr Omer's case it was noted as before that there were no current plans to commence enforced returns. There was a Detention Review undertaken in Mr Ibrahim's case on 30 June 2008. In my judgment it should have been apparent at that time that an enforced removal could not be effected within a reasonable time. There were no plans for enforced removal at all. At that point Mr Ibrahim should have been released, albeit with conditions attached. In consequence I hold that Mr Ibrahim's detention from 1 July 2008 was unlawful.”

He reached a similar conclusion in respect of AO in paragraphs 77 and 78 of his judgment:

“77.

That finding would lead to the conclusion that his detention was unlawful from 6 June 2008. Was it unlawful before that date on the basis that it was apparent that removal could not be achieved within a reasonable time? I am satisfied that it was. The comment quoted in paragraph [70] above from January 2008 amounts to a recognition that Mr Omer's enforced removal could not be achieved within a reasonable period. He had already made clear that he would not leave voluntarily. The FRS scheme, which as already noted provides someone departing the United Kingdom with a valuable financial inducement, was all that was left to the Secretary of State to achieve Mr Omer's departure. Mr Omer knew of that scheme. He had been 'reminded' of it. He had expressed no interest. There was no realistic prospect of his being removed by early summer.

78.

The January Detention review was signed off on 8 January 2008. On this aspect of the matter my conclusion is that from that date that it was apparent that he could not be forcibly removed within a reasonable time and he had made it abundantly clear that he would not go otherwise. Thus, to use the language of Hardial Singh, it was apparent from mid-January that the Secretary of State was not going to be able to operate the machinery of removal within a reasonable time.”

In Murad which was decided on 27^th April 2012 Elisabeth Laing QC (as she then was) endorsed Burnett J’s conclusions as to the prospects in 2008 for removal to Iraq of a deportee who had been detained since 11^th November 2007:

“113.

It is true that initially there was an improvement in conditions in Iraq during late 2007 to early 2008. It was only clear with hindsight that this was to be a temporary improvement; and even after conditions worsened, the Secretary of State might reasonably have thought, for a time, that they would improve again. But they did not, and the Secretary of State must have known, that even if they did improve again, making arrangements for the removal of Iraqi Kurds other than to the KRG would be bound to take time, as Burnett J pointed out in MI.

114.

As Burnett J said, there is a limit to the length of time for which the prospects of removal to an unstable country can be permitted to rest on little more than a hope. It is conceivable that if the Secretary of State had served some evidence in this case explaining her thought processes from Summer 2008 onwards, I might have been persuaded otherwise. For example, the Secretary of State might have referred to negotiations with the Iraqi Government following the MOU as grounds for a belief that there was a reasonable prospect of removing Kurds to Central and Southern Iraq within a reasonable time. But there is no such evidence. Nor is there any material in the detention reviews to support a suggestion that removal was likely within a matter of months, or that anybody thought that it was. The formula that there is "a reasonable prospect of removal within a reasonable time" is repeated many times, but no objective grounds for that view are evident.

115.

In all the circumstances I conclude that it should have been clear to the Secretary of State by 8 January 2009, when the deportation order was revoked, that removal was not going to be possible within a reasonable time. There is no evidence that there was any prospect of removing the Claimant, or that anyone considered, on reasonable grounds, that there was such a prospect.”

In paragraph 61 of his judgment in MI and AO Burnett J pointed out the evidential difficulty that is created when the Secretary of State does not file evidence in cases such as this, where compliance with Hardial Singh principles is in issue. It is for the Secretary of State to demonstrate by evidence that the principles have been adhered to (ibid). The Appellant’s detention reviews in March – May 2008 recognised that he was “only suitable for removal to Iraq on a voluntary basis.” Mr. Staker confirmed, in answer to a question from the Court, that he was not relying on any of the Appellant’s detention reviews as evidence that the Respondent had formed the view in 2008 that the removal of the Appellant to Iraq would be possible within a reasonable time.

That leaves the decisions of the Administrative Court relied upon by the Respondent (paragraph 13 above). I will deal with Mahmoud below (paragraphs 20 et seq). I accept Miss Lieven’s submission that insofar as the decisions other than Mahmoud do provide an evidential basis for a conclusion as to the prospect of an enforced removal of this Appellant to Iraq within a reasonable time in early – late 2008 (by which time he had been in detention for between eight to sixteen months), they lead to the conclusion that there was no such prospect. By the summer of 2008 there appeared to have been a reversal of some of the improvements that had been noted in 2007. In the absence of a significant improvement no enforced returns would be achievable for many months at least: see paragraph 63 of MI and AO and paragraph 113 of Murad (above). Does the decision in Mahmoud alter this position?

Mahmoud was decided by Mr. Nicholas Paines QC (sitting as a Deputy Judge of the High Court) on 27^th July 2012 following a hearing on 30^th March 2012. Mr. Mahmoud had been detained from May 2008 until he was granted bail in September 2011 (paragraph 23). The Deputy Judge found that the prospects for removal had greatly improved by September 2009 and that thereafter Mr. Mahmoud’s detention was lawful (paragraph 57). When considering the lawfulness of Mr. Mahmoud’s detention from May 2008 to October 2009 the Deputy Judge referred to the findings of Langstaff J who had heard oral evidence in A Iraq. Langstaff J found that a senior civil servant in the Foreign and Commonwealth Office had gone to Baghdad in March 2009. Other meetings followed, and the first enforced charter flight took place on 15^th October 2009 (paragraphs 24 and 25). The Deputy Judge concluded that Mr. Mahmoud’s detention from May 2008 to September 2009 was lawful (paragraph 54).

There are two reasons why the Deputy Judge’s conclusion that Mr. Mahmoud’s detention from May 2008 to September 2009 was lawful does not provide any support for Mr. Staker’s submission that the Appellant’s detention throughout 2008 was lawful. First, it is a matter of some concern that the Deputy Judge does not appear to have been referred to Burnett J’s decision in MI and AO which dealt with the position in the Summer of 2008. MI and AO is not referred to in the Deputy Judge’s judgment. Insofar as there was any evidence before Deputy Judge in Mahmoud it did not cast any doubt on Burnett J’s conclusion in MI and AO. Although the evidence referred to by Mr. Paines QC did not deal with the position in 2008, it did confirm that the initial meeting which eventually paved the way for the first enforced returns flight on 15^th October 2009 did not take place until March 2009.

The second reason why Mahmoud is of no assistance to the Respondent is that the Respondent’s submissions overlook the fact that Mr. Mahmoud’s detention began in May 2008. Initially, two mistaken beliefs were held by the Secretary of State: that Mr. Mahmoud could be returned to the KRG and that he could return voluntarily (paragraph 52). The fact that, in due course, both of these beliefs were shown to be mistaken (paragraphs 55 and 56) would not mean that the early months of Mr. Mahmoud’s detention after May 2008 were unlawful. What is a “reasonable period” for effecting return in any particular case will depend on all the circumstances, but one of the factors which will be highly relevant will be the length of time that the detainee has already spent in detention. A belief that it may be possible to effect removal within a reasonable time of someone who has just been detained may be justified even if it is based on little more that a hope that the security situation in the receiving country may improve (as appears to have been the basis for the Secretary of State’s view in Mahmoud), but it does not follow that the position will be the same if the person whose removal must be effected within a “reasonable time” has already been in detention for a long time: see paragraph 52 of MI and AO. By 4^th May 2008 when Mr. Mahmoud was detained the Appellant in the present case had been detained for ten months.

This illustrates the fallacy at the heart of the Respondent’s submission which the Deputy Judge accepted in this case: that the cases listed in paragraph 40 of his judgment demonstrated that for the period of six and a half years from March 2005 to September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful. A conclusion in any particular case that removal could be effected within a “reasonable time” would depend on the individual circumstances of that case, including the time already spent in detention, the prospects for voluntary removal etc. Insofar as the decisions relied upon by the Respondent are of any evidential value for the purposes of the present case they demonstrate that by, at the very latest, 10^th November 2008 it would have been apparent to the Secretary of State (if she had considered the matter, as to which there is no evidence) that there was no prospect of effecting an enforced removal to Iraq of this Appellant, who had by then been in detention for eighteen months, within a reasonable time. The Deputy Judge’s conclusion to the contrary was one which was not reasonably open to him on a proper analysis of the only the material (the decisions listed in paragraph 40 of the judgment) relied upon by the Respondent.

In an attempt to overcome the lack of any evidence to support the Respondent’s case as to the prospects of enforced removal to Iraq in 2008, Mr. Staker submitted that the correct test was not whether the Secretary of State had any reason to believe that removal could be effected within a reasonable time, but whether the Secretary of State had any reason to believe that removal could not be effected within a reasonable time, and there was no evidence of any such reason in the present case. This submission is flawed for two reasons:

As a matter of principle, the onus is on the Secretary of State to justify the lawfulness of continued detention (see paragraph 61 of MI and AO above).

As a matter of fact, there was good reason to believe in 2008 that the enforced removal to Iraq of this Appellant would not be possible within a reasonable time. Since enforced removals had not been possible since 2004 it would have been obvious in 2008 that in the absence of a significant and sustained improvement enforced removal would not be achievable for many months: see paragraph 63 of MI and AO.

For these reasons, the Deputy Judge’s conclusion that for the whole of the period between 4^th July 2007 and 14^th August 2009 there was no point at which the Respondent was not entitled to the view that the Appellant could be removed within a reasonable time was one which was not open to him on the evidence as to the prospect of voluntary removal and the prospect of enforced removal in 2008. Fixing a particular date in 2008 is necessarily a somewhat arbitrary exercise, but it seems to me that whatever hopes the Respondent might have entertained earlier in 2008 could not reasonably have been entertained by the time of her decision on 10^th November 2008. There is no evidence to support the Respondent’s submission that the Appellant’s continued detention after that date until 14^th August 2009 was lawful. Such evidence as there is in this case is capable of leading to only one conclusion: that his continued detention after 10^th November 2008 was unlawful. I would allow his appeal to that extent.