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

THE DEPUTY: In this case the claimant seeks a declaration that his detention by the Home Secretary has become unlawful. He contends that his detention has now exceeded what may have been reasonable or justifiable. Permission to make this claim was given by Mr Keith Lindblom QC sitting as a Deputy High Court Judge on June 5th 2009.

The claimant has been detained by the Home Secretary pending his deportation to Somalia since June 20th 2006 under paragraph 2 of schedule 3 to the Immigration Act 1971. His appeal against the decision to deport him was dismissed by the Asylum and Immigration Tribunal on September 30th 2008 following a reconsideration of an earlier tribunal decision. His application for permission to appeal to the Court of Appeal against that decision has been stayed pending a determination by the Court of Appeal of another appeal against a country guidance case relating to Somalia, HH v Secretary of State for the Home Department.

This case is a sad reminder of the continuing difficulties in securing the removal of foreign nationals who commit criminal offences in this country which make their continued presence here undesirable.

There has had been little dispute in substance between the parties on the law which falls to be applied in this case. Paragraph 2(2) of schedule 3 to the Immigration Act 1971 provides that:

In paragraph 2(2), the word "pending" simply means "until". However, as Toulson LJ stated in R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [43]:

In considering whether, and to that extent, a risk of an individual absconding and/or offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure, as Toulson LJ put it in A at [43], there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or continued detention of the individual, having regard to all the circumstances, including the risk of absconding and the risk of danger to the public if he were at liberty. Toulson LJ also added:

Thus, as Dyson LJ concluded in R(M) v Secretary of State for the Home Department [2008] EWCA Civ 307 at [14]:

The function of this court is not limited to asking whether the Home Secretary's judgment was unreasonable. It is for the court to decide whether the period of detention is lawful. As Toulson LJ put it in A at [62]:

Detention for the purpose of deportation also engages, as is well-known, Article 5 of the European Convention and, as Keene LJ stated in the same case, at [75]:

The claimant was born in 1977. He arrived in the United Kingdom on August 2nd 1997 using a different name. He appeared to be a Somali national and he claimed asylum on arrival. His asylum claim was refused but he was granted exceptional leave to remain for one year on April 13th 1998. He applied for further leave to remain on May 25th 1999 but no decision was ever made on that application.

Meanwhile, the claimant embarked on a criminal career in this country. He was convicted for 18 offences between 1998 and 2004. These included robbery, for which he was sentenced to two years' imprisonment; assault occasioning actual bodily harm twice, including once on a prison officer whom he claims racially abused him; possession of an offensive weapon, an axe, in a public place without reasonable excuse; using threatening words or behaviour; seven burglaries, including four, for one of which he was for up to three years' imprisonment in 2001; theft; and two convictions for failing to surrender into custody. These offences were mainly committed in circumstances of drug and alcohol abuse and a number were committed whilst the claimant was on bail or subject to licence following release from imprisonment having served the custodial part of the sentence.

The claimant was served with a notice of liability for deportation on June 28th 2004. However, notwithstanding that, on October 13th 2004 he undertook a further non-dwelling house burglary in relation to which he was sentenced to two and a half years' imprisonment on May 4th 2005.

The claimant was due to be released from custody on June 20th 2006. But on that day he was served with a further notice of intention to deport him to Somalia and he was detained by the Home Secretary. He has been in detention since then. He was transferred to Colnbrook Immigration Removal Centre where he remained until February this year.

The claimant appealed against the decision to make the deportation order on June 26th 2006. Both the appeal and the decision to make a deportation order in respect of which it was made were subsequently withdrawn in circumstances which are not entirely clear but in respect of which Ms Weston, who appears on behalf of the claimant, made no criticism. However, following a further interview, a further notice of a decision to make a deportation order was served on the claimant on August 7th 2007. His appeal against that decision was heard by the Asylum and Immigration Tribunal on January 24th 2008 and dismissed on February 6th 2008.

On April 22nd 2008, however, the High Court ordered the Tribunal to reconsider its decision. It had arguably erred in law in its consideration of the issue of internal relocation within Somalia when dealing with the claimant's contention that his removal there would infringe his Convention rights as it would expose him to Article 3 ill-treatment. The Tribunal held a hearing as part of that reconsideration on August 3rd 2008. But it again dismissed the claimant's appeal on September 30th 2008 as, in the Tribunal's view, he would not to be exposed to a real risk of ill treatment in Somalia by reason of his clan status.

The claimant subsequently applied for permission to appeal to the Court of Appeal on October 9th 2008. That application has been stood out of the list awaiting the determination of a test case by the Court of Appeal about Somalia: HH v Secretary of State for the Home Department. The hearing of that test case was itself delayed pending judgment in two cases relating to Iraq concerning the criteria for the humanitarian protection under Article 15 of the Qualification Directive (Council Directive 2004/83/EC). The Court of Appeal delivered judgment in those two cases yesterday, June 24th 2009: see No 1 QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620.

There have been four other developments to which I should refer.

First, on August 7th 2005, the claimant's son was born. The claimant no longer has any relationship with his mother. Given his mother's alcohol problems, however, in June 2007 a guardianship order in respect of the claimant's son was made in favour of the claimant's aunt. He has lived with her and her daughter since then. The claimant apparently applied for a contact order as he thought that his aunt and his cousin did not want him to have contact with his son. On December 2nd 2008, Wells Street Family Court granted the claimant leave to withdraw that application. The claimant says that he did so as he had re-established contact with his aunt and that she had agreed to bring his son to Colnbrook more often. Moreover, he says that she was very old and he realised the prospect of a court appearance was putting her through "quite an ordeal". He says that he has spoken to his son over the phone regularly and his son has been to visit him in Colnbrook. Ms Weston has emphasised to me that his desire to have greater contact with his son means that the claimant would have a strong incentive not to abscond or reoffend if not detained. That is a matter to which I shall return.

Secondly, it appears that the claimant was involved in a number of incidents after he was detained at Colnbrook. I have seen records from the detention centre about that matter. These reported incidents include aggressive and abusive behaviour and alleged assaults against other detainees, as well as theft from them. Ms Weston told me that the claimant does not accept that he was involved in any criminal activity at Colnbrook but that he accepts that his behaviour was not as good as it should have been. In February 2009, he was moved to Brook Detention Centre. The reason recorded why that move was requested was that:

Thirdly, as will emerge from what I have already said, the claimant has already harmed himself whilst in detention, a matter to which I shall return. A number of occasions are recorded in the notes relating to his conduct at Colnbrook IRC.

Fourthly, the claimant has recently participated in a language analysis interview. The results suggest in the Home Secretary's view that he speaks a form of Swahili found in parts of Kenya, although he claims to have remained in Kenya only for five months. Whether he is in fact a Kenyan who can be deported to Kenya is a matter that the Secretary of State is currently investigating.

In any case, the reasonableness of detaining an individual pending deportation is inevitably sensitive to the particular facts of that case. There is therefore limited benefit in considering in detail how other judges have approached the circumstances in other cases. My attention has been drawn to a number of such other cases and I am grateful to have had my attention drawn to them and I have borne in mind what was said in them.

The starting point in this case, in my judgment, is the time which the claimant has already spent in detention. He has already been detained for three years. This is a very lengthy period indeed and it requires a clear justification. As I have mentioned, Ms Weston does not criticise what occurred between June 2006 and August 2007. But it did mean the decision to deport, against which proceedings are still continuing, was only made once the claimant had been in detention for over a year. The rest of the period has been consumed by the process of his appeal against that decision which is still outstanding. That does not require the lengthy period of detention which he has already undergone to be disregarded, indeed it cannot be ignored, but it is a factor that is not irrelevant in considering its reasonableness.

The second matter which in my judgment is of considerable significance, given the very considerable period already spent in detention, concerns the prospect of removing the claimant from this country.

The Secretary of State is investigating whether the claimant is a Kenyan and, if so, whether he can be deported there. The reason why this matter is only now being investigated is apparently because of a trial programme in which the claimant agreed to take part which led to his language interview. Whether the claimant may be deported to Kenya, however, is entirely speculative at this stage. The Home Secretary has not yet established to his own satisfaction that the claimant is a Kenyan. If he reaches that conclusion and, if a decision is taken to the deport him there, as Mr Fetto (who appeared for the Home Secretary) accepted, the claimant may have a right of appeal to the Asylum and Immigration Tribunal or he may be able to apply for judicial review. He may be expected to use whatever route of challenge he may then have in such circumstances as the Asylum and Immigration Tribunal has already found him to be a Somali of a particular clan on the basis of expert evidence. In my judgment the prospect of his being removed to Kenya in any reasonable period is thus wholly speculative and it is not one to which any significant weight can now be put on the basis of the material available to me. The Secretary of State is concurrently detaining him pending deportation to Somalia and it is to that prospect that the most consideration must be given.

The Secretary of State considers that there remains a real prospect of removal to Somalia. The Secretary of State notes, as the Immigration Appeal Tribunal has found, that he is a member of the Maheran sub-clan of the Darod clan, which is not a minority clan in Somalia, and that the Maheran clans dominate the Gedo region of southern Somalia where he could be safely located. That would involve a return to Somalia via Mogadishu.

The claimant contents, however, that there is no imminent prospect of his removal to Somalia and in my judgment that must be correct. The claimant's application for permission to the Court of Appeal was stayed until the Court of Appeal's decision on the country guidance case HH had been heard. That case was itself stayed until judgment had been delivered by the Court of Appeal, as it was yesterday, in No 1 QD (Iraq). The Court of Appeal there found that the approach which the Asylum and Immigration Tribunal has been adopting to the test for determining entitlement to humanitarian protection under Article 15 of the Qualification Directive was flawed and it remitted the cases involved to the Asylum and Immigration Tribunal for reconsideration. I am informed by Ms Weston that one of the grounds of the claimant's appeal relates to such protection.

Unsurprisingly, Mr Fetto could not tell me whether the Secretary of State intends to appeal against that decision. But, assuming that he does not, it appears that the Asylum and Immigration Tribunal adopted the same approach to humanitarian protection in HH (which was a country guidance case relating to Somalia). It is possible, therefore, that there would need to be a further country guidance case in respect of Somalia, taking into account not only a revised test for humanitarian protection but also the changed conditions in Somalia. Between the first country guidance case relating to Somalia, HH, and the judgment in the Court of Appeal in No 1 QD (Iraq), but notably after the Asylum and Immigration Tribunal's judgment in the claimant's case, the Asylum and Immigration Tribunal has reviewed its country guidance for Somalia in a further decision, AM and AM v Secretary of State for the Home Department [2008] UKAIT 00091, delivered on 27th January this year.

There may also be further litigation relating to Somalia that needs to be taken into account in assessing the prospects for the claimant's removal to Somalia. It appears from a letter from the Registrar to the European Court of Human Rights, dated March 2nd this year, that the European Court of Human Rights had been granting Rule 39 requests for interim measures to restrain removals to Mogadishu; that that court will give a judgement upon returns to Mogadishu once the Court of Appeal in this country has given judgment in HH v Secretary of State for the Home Department; and that the interim measures granted will not be lifted until then.

Plainly how all this may affect the claimant's case must be a matter for some speculation. Mr Fetto was unable to provide me with any estimate of the earliest realistic date by which the Home Secretary anticipated the claimant could be removed. But I should be surprised, given the likely nature of the further litigation to which the test of humanitarian protection gives rise and other cases involving the return of Somalia nationals, even leaving aside any prospect of future changes of conditions in Somalia, that there is any realistic possibility of the claimant being removed until well into next year, even if he cannot show in any new Asylum and Immigration Tribunal hearing, if one is required, that he satisfies the new test propounded by the Court of Appeal. Given the possibility of further appeals, that prospect of removal may itself be over optimistic. The position therefore, in my judgment, is that the claimant may be facing over four years' detention before he may be removed.

In that respect, I must take into account the evidence that I have heard about the effect of detention on the claimant. He claims that his continued detention is having a adverse effect on his mental health. In his witness statement, he asserts that he suffers from depression and some form of Post-Traumatic Stress Disorder. He said that he was diagnosed as being depressed while in Colnbrook and given counselling but that he stopped attending the sessions there. It appears from a record by Dr Hajioff, a consultant psychiatrist, who has been employed by the Home Office as a visiting psychiatrist at Pentonville prison for the past 15 years, that the claimant has been proscribed anti-depressant medication.

The claimant also says that he has felt suicidal. There have been incidents in which he has harmed himself recorded at Colnbrook. Dr Hajioff states:

Mr Hajioff did not confirm the claimant's suspicion that he has PTSD but he did find that he was depressed and he stated that:

I remind myself of what Dyson LJ said in R(M) v the Secretary of State for the Home Department [2008] EWCA Civ 307 at [39]:

The Secretary of State not unreasonably refers to the risk of the claimant reoffending and absconding if he is not detained. I have referred to the claimant's record of offending. It is continuous and serious. So far as threats to persons are concerned, he has been convicted of robbery (he received a sentence of two years) and assault occasioning actual bodily harm twice, for which the larger of the two sentences was four months, quite apart from being found in a public place with an axe without reasonable excuse. Moreover, the cause of his having been placed in HMP Bedford appears to have been a serious assault. Moreover, offences against the person are not the only serious offences of which he has been convicted. The claimant has been convicted of six dwelling house burglaries in addition to two non-dwelling house burglaries. As the Home Secretary rightly points out, when at liberty the claimant has demonstrated a pattern of repeated criminal behaviour and it appears that a probation service report before he was sentenced in May 2005 assessed the claimant as having a high risk of reoffending and as presenting a medium to high risk of harm to members of the public.

The Claimant points out, however, that the offences were committed over five years ago when he was younger and drug dependent. He says that he has addressed his problems of substance abuse and is now no longer addicted to alcohol and drugs and he has produced a negative test this month which he undertook in HMP Bedford. He says that the reason he offended previously after release was that he remained in contact with the group taking drugs and committing crimes, with whom he is no longer in contact. He complains that there has been no reassessment of the risk to the public following the completion of his custodial term and that his desire to maintain better contact with his son provides him with a powerful incentive not to reoffend.

The prospect of his reoffending was considered by the Asylum and Immigration Tribunal in February 2008. In their decision, the Tribunal stated:

The Home Secretary also refers to the record of the claimant's behaviour in the detention centres that ultimately led to his removal to HMP Bedford. I have already referred to what Dr Hajioff said about that. I am prepared to accept that his frustration in detention may have contributed to his behaviour there but in my view it is more likely than not that the incidents recorded did in fact take place and the claimant's concern to see his son more did not inhibit such behaviour which it was obvious would retard that prospect. In my view therefore, there is plainly a risk of him re-offending but the type of offences which he may commit are not in my judgment of the most grave sort, serious though they undoubtedly are.

I must also consider the risk of the claimant absconding. The claimant points out that he claimed asylum on arrival and did not seek to evade the attention of the immigration authorities before he was jailed in 2005, notwithstanding the fact that his exceptional leave to remain ran out in April 1999. The last occasion on which he was convicted of failing to surrender to custody was in 1998 and he says that that was a result of his then unsettled life. I have already referred to the strong incentive which he claims to have not to abscond in the shape of family ties, in particular his relationship with his son, which he wishes to develop. I am sceptical about this profession. The claimant has every incentive to abscond. He faces deportation to a country he now manifestly does not want to go on to. He has used, it would appear, some 13 aliases and has been convicted twice of failing to surrender to custody and he has convictions of offences for dishonesty. The Tribunal did not accept he had told them the truth about his departure from Somalia. He has also not always co-operated with the immigration authorities. The Home Secretary has made a number of requests for biographical data interviews, on September 13th 2007, September 29th 2007, December 26th 2007 and March 29th 2008, but the claimant refused to co-operate. Indeed, it is also reported that the claimant had told an immigration officer that "he would never do anything to help immigration". I note that some biographical data was received by fax on December 10th 2008 and that the claimant attended a language interview in March this year. He contends that he has been co-operating with the immigration authorities and providing them with data "for a few months now", although there is an issue about how full that the co-operation had been. In my judgment, therefore, the risk of his absconding cannot be dismissed as insignificant, even bearing in mind what he says about his desire to spend more time with his son.

In considering the position overall, there is clearly a tension between (a) the risk of the claimant re-offending and the risk of his absconding, which I do not minimise, and (b) the length of the Claimant's detention, the lack of any imminent prospect of his removal and the effect it is having on him. Nonetheless, I bear in mind, as Simon Brown LJ, as he then was, put it in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at paragraph 19:

MS WESTON: I am most grateful for the careful attention my Lord has given this case.

One matter arises from my Lord's suggestions regarding terms and conditions. I have had an opportunity to discuss them with my learned friend and we had discussed weekly reporting.

THE DEPUTY: Right.

MS WESTON: And there are some practical difficulties around being able to access reporting centres as frequently as that and also it would interfere with the claimant's attendance on drug support schemes, so --

THE DEPUTY: Could I ask, if you have had a discussion about it, is it likely that you may reach agreement about a set of conditions?

MS WESTON: It is likely that we will be able to reach a complete agreement, save in respect of stay in contact with some aunt's address and how that will be managed in the tagging framework. But I understand from my learned friend that the Secretary of State would require 48 hours to set up the framework of conditions in any event and I am wondering whether we might try and agree an order within a timeframe like that.

THE DEPUTY: Certainly. Could I suggest this as a practical way forward. Obviously it is desirable to try and agree the conditions. If you could draw up an agreed order granting bail and setting out the conditions and submit it to me, I suspect I would not need to come back into court to deal with it. If anything arises, or if you cannot agree, could I suggest that you consider whether the matter can be dealt on the basis of written submissions.

MS WESTON: Could I just raise one other technical point and that is that technically if the detention is unlawful the question of bail does not arise. It would be temporary admission on conditions, I think.

THE DEPUTY: I am simply doing what I think Mitting J did in another case called Bashir. I am not sitting next week. I am here tomorrow if you can agree anything. I shall be here in the building. But I can no doubt make himself available next week, if you cannot agree anything by tomorrow. What I suggest we do, therefore, is I will rise now, subject to anything else you may wish to raise with me, and if you could inform me about where you have got to and what you would like to do about it, I will arrange either to deal with it on paper or to come back to court to deal with it.

MS WESTON: My Lord yes. The only issue that I wanted to raise was costs.

THE DEPUTY: Yes.

MR FETTO: My Lord, I have not heard an application but, as I am assuming there is an application, I do not resist it, my Lord.

THE DEPUTY: The claimant will have his costs to be taxed if not agreed on the standard basis.

MS WESTON: I am grateful. I will put the wording detailed assessment of any publicly funded costs in the order, my Lord.

THE DEPUTY: Certainly.