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

This is a claim for judicial review in which the judgment can be concise. After being extradited to face trial in this jurisdiction, on 27^th February 2012 the claimant James Ibori, a Nigerian national, pleaded guilty to ten serious criminal charges arising from the appropriation of massive amounts of public funds during his two terms as Governor of Delta State, Nigeria. A Notice pursuant to s.71(1)(a) Criminal Justice Act 1988 as to the initiation of proceedings to confiscate the benefit of his criminal conduct was served that day. His assets are subject to a restraint order.

On 17^th April 2012 he was sentenced at Southwark Crown Court to 13 years’ imprisonment. He was informed of his liability for automatic deportation as a foreign criminal by application of section 32 UK Borders Act 2007 and, in May 2013 confirmed in writing that he did not wish to challenge deportation. Having indicated that he would like to leave voluntarily he was told by letter in June 2013 the Facilitated Return Scheme may be available but its application would be considered closer to his date of release from prison. An order for his deportation as a foreign criminal as defined by s32(1) UK Borders Act 2007 was made on 8^th May 2015.

As a result of the time Mr Ibori had spent in custody in the United Arab Emirates while his extradition to the United Kingdom was achieved, he was due to be released from prison in England (on conditional release on licence) on 20^th December 2016. In anticipation, a letter was written by Mr Macdonald QC, on instructions, on 7^th December 2016 reminding the Secretary of State for the Home Department (SSHD) that Mr Ibori wished to be deported pursuant to the 2015 deportation order as soon as he was released from prison. He asked the SSHD to ‘begin the necessary arrangements so that our client can leave the United Kingdom on or as near as possible to the 20^th December date.’ Although it appears that by then he was seeking permission to appeal against his conviction and the confiscation proceedings had not been resolved, neither of these required Mr Ibori’s presence and it is common ground that the criminal courts have no power to compel his attendance at an appeal or confiscation hearing. However, in response by email on 8^th December 2016, the SSHD stated ‘we cannot deport Mr Ibori until the confiscation matter has been resolved.’ The email also made reference to the possibility of a bail application.

An order for immigration detention under the deportation order (IS91R) was made on 9^th December 2016. A “Minute of a decision to detain a person under immigration powers”, ICD/3079 of the same date noted that Mr Ibori’s risk of absconding was high and stated that the only outstanding barrier to deportation was,

“Confiscation hearing – This is scheduled for 3 February 2017”.

The trial bundle documentation (including the contents of the Minute), sets out the SSHD’s rationale. On 29^th November 2016 the relevant case-worker had submitted a ‘release referral’ in connection with Mr Ibori’s anticipated release from his prison sentence. This document summarised the claimant’s extradition, conviction and his history in custody and suggested that although there was an extant deportation order, outstanding proceedings presented a barrier to removal. It proposed release on immigration bail pending resolution of the confiscation matters. The caseworker observed,

“Mr Ibori’s removal is not considered to be likely within a reasonable period of time as the confiscation hearing has been ongoing for over a year and could be ongoing after the confiscation hearing on 3^rd February 2017”

The proposal was rejected by an Assistant Director, David Hervey who provided a witness statement for the hearing. Mr Hervey was aware that Mr Ibori wished to leave the United Kingdom but he was informed by the Unit Head of the Central Pre-Enforcement Unit at the Crown Prosecution Service on 2^nd December 2016 that a confiscation order in a substantial sum was expected to be made in due course by the Crown Court. If Mr Ibori did not pay the confiscation order he would have to serve a term of imprisonment which would have been fixed in default. In the unusual circumstances of the case Mr Hervey had sought information from both the CPS and other Home Office officials and it is clear from the relevant emails that he had in mind the requirement that if Mr Ibori was held in immigration detention after release from his prison sentence removal would have to be anticipated within a reasonable period of time. Although Mr Ibori didn’t possess a valid passport the ETD process had been completed and the Nigerian High Commission was ready to issue a travel document within 24 hours of receipt of removal directions from the SSHD.

It is not necessary to delve into the reasons for the failure to hold effective confiscation proceedings between 27^th February 2012 and 20^th December 2016. But an email sent by Mr Hervey on 5^th December 2016 indicates that it was in the context of awaiting the making of the order, and likely subsequent efforts by the prosecuting authorities to ‘recoup’ a sum estimated to be at least £57 million from the claimant, that the decision to detain the claimant without intending imminent removal was made. In the same email he states,

“The confiscation process is clearly complicated as set out below [a reference to an email from the CPS] but should be clearer by the beginning of February [2017]. Mr I has indicated a wish to leave the UK and the risk of absconding and fleeing the UK must be high. Whilst we could impose various restrictions, including placing him on a no fly list, there would be very little we could do to stop him leaving the UK via clandestine means. I therefore feel that the best course of action at present is to place him in immigration detention and review the position in February or when we know more about the confiscation process. If, of course the confiscation matters are dropped then removal could take place immediately……. Mr Ibori will of course be free to apply for IAC Bail.”

In a witness statement prepared for the review hearing Mr Hervey explained that had the decision not been taken to detain Mr Ibori pending clarification of the status of the confiscation proceedings, he would have been subject to enforced removal which would have been effected by his remaining in detention until he was placed on a direct flight to Nigeria. The first possible flight flew at 22.40hrs on 21^st December 2016.

By email on 14^th December Mr John Turner, a Case Owner in the SSHD’s Immigration Enforcement section, informed Mr Ibori’s solicitors of his understanding that confiscation proceedings against the claimant were due to be heard on 3^rd February 2017. This communication carried the implicit message that the defendant anticipated the resolution of the proceedings and the claimant’s removal within a short period of months. The claimant’s solicitor replied notifying Mr Turner that the listing in the Crown Court on 3^rd February 2017 was to be merely a mention rather than a substantive hearing. The claimant lodged an application for bail at the First Tier Tribunal (Immigration and Asylum) and was informed it would not be listed for hearing until 2017.

A claim for judicial review of the decision not to deport him and the decision to detain him was lodged prior to Mr Ibori’s release from prison together with an application for urgent consideration. The Crown Prosecution Service was asked by Mr Ibori’s solicitors to indicate whether they had any objection to him being removed to Nigeria upon conditional release from prison. The response was,

“Any decision regarding the deportation is a matter for the Secretary of State for the Home Department.”

On 21^st December 2016 the application for urgent consideration was heard before May J. who ordered Mr Ibori’s immediate release on reporting and residence conditions. He had been moved from HMP Huntercombe on 21^st December and taken to HMP Wandsworth where he was told at 3.30pm that the High Court had ordered his release from immigration detention.

May J. also granted permission for the claim to proceed, required the defendant to file detailed grounds of resistance to the claim and ordered that a substantive hearing should be listed by 31^st January 2017 unless the defendant issued directions for the claimant’s removal by 4pm on 6^th January 2017. The claimant was released as ordered on the evening of 21^st December 2016, after a day and some eighteen hours of immigration detention (albeit held in prison). The conditions of his release from his prison sentence on licence (which were issued to him at 18.10hrs) included a condition that he remained within the jurisdiction, (“5 vii Not to travel outside the United Kingdom…..except ….for the purposes of immigration deportation or removal.”). Accordingly, if, as he consistently indicated he intended to, Mr Ibori had left the jurisdiction himself upon release from detention he would have been in breach of his licence.

On 30^th December the claimant’s solicitors wrote to the defendant seeking her acquiescence to his voluntary departure to Nigeria upon a passport issued to him by the Nigerian High Commission two days earlier. That was not forthcoming. They wrote again on 5^th January 2017. The day after receipt of the claimant’s solicitors letter the defendant made an application to the Court requesting a further seven days in which to make a decision on the claimant’s request for voluntary departure before the substantive judicial review claim was set down for hearing. On 13^th January 2017 the defendant decided to allow Mr Ibori to depart the United Kingdom voluntarily.

Attempts were made by the parties to settle this claim by consent but the defendant would not concede that she had unlawfully detained the claimant over 20^th and 21^st December 2016 or pay damages of £4,000 claimed. The claim came before Garnham J for directions on 31^st January 2017 by which time the judge had already directed that the conditions requiring Mr Ibori to reside at an address in London and report regularly were lifted. The SSHD agreed that Mr Ibori could leave the jurisdiction and he did so on 3^rd February 2017 under his own steam.

So much for the necessary factual context. Mr Ibori seeks a declaration that the defendant unlawfully detained him until his conditional release from detention on 21^st December 2016 and damages for the tort of false imprisonment and breach of Article 5 ECHR under the Human Rights Act 1998, including for the period until he was released from the reporting and residence conditions. I have now heard the substantive claim and the defence.

Although the law in the field of immigration is constantly being considered by the courts and evolving, the particular circumstances raised in this case have not previously achieved a substantive hearing of a claim for judicial review. A similar situation arose in R (oao Peter De Smet) v SSHD [2013] EWHC 4527 (Admin) in which permission for judicial review was granted by Males J but the claim proceeded no further.

Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 is the source of the Secretary of State’s power to detain a person subject to a deportation order:

“(2)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom….”

(Emphasis added.)

In the present case Mr Ibori’s liability to deportation arose under s.32(5) of the UK Borders Act 2007. It is not disputed that the SSHD had to make a deportation order nor is it contended that it should have been revoked at any time in his case. Section 36 of that Act deals with detention where s.32(5) applies and reads as follows:

“36.

Detention

(1)

A person who has served a period of imprisonment may be detained under the authority of the Secretary of State –

(a)

while the Secretary of State considers whether section 32(5) applies, and

(b)

where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.

(2)

Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.

(3)

A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).

(4)

Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).

(5)

Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1).

(Emphasis in subsection (2) added.)

In the case of a foreign convicted criminal before a deportation order is made, there may be detention under subsection (1). After a deportation order has been made, the authority to detain is still that under the 1971 Act, but detention is presumed by the wording of section 36(2). Thus, in subsection (3) there is a reference to detention under subsection (2), because subsection (3) gives the Court, in essence, power to override the presumption of detention imposed by subsection (2). As the remaining subsections make clear, however, the detention itself is that authorised by the 1971 Act. The Act indicates a clear policy in favour of deportation of foreign criminals.

The criteria set out by Woolf J (as he then was) in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 were restated authoritatively by Lord Dyson (for the majority) in Lumba v SSHD [2011] UKSC 12 at [22], confirming his own statement in R(I) v SSHD [2012] EWCA Civ 888, that the principles are:

“(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

The deportee may only be detained for a period that is reasonable in all the 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 a 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”.

The provisions of the 2007 Act were not considered in Lumba as they were not in force at the time of the events which gave rise to those appeals [294]. In Lumba there was no challenge to the lawfulness of the deportation orders and the lawfulness of the decisions to detain were challenged because those decisions were taken pursuant to the operation between April 2006 and September 2008 of an unpublished policy of blanket detention of all foreign national prisoners on completion of their sentences. Whether made by exercise of discretion or in carrying out a duty, any detention decision of the defendant is subject to challenge on general public law grounds. It is for the court to determine whether the decision to detain or maintain detention meets the requirements of the Hardial Singh principles; the burden of establishing the legality of the detention falls on the Secretary of State.

Within the limits imposed by the Hardial Singh principles, the question whether to exercise the power of detention is in general terms a matter for the discretion of the Secretary of State. Where, as in this case, there is in force a deportation order made under s.32(5) of the UK Borders Act 2007 the position is different from other cases because s.36(2) replaces the general discretion under the 1971 Act with a duty to exercise the power of detention “unless in the circumstances the Secretary of State thinks it inappropriate”.

In order for a detention decision to be lawful, there is no requirement that removal be immediate or imminent, or even “reasonably imminent”: so long as the Secretary of State intends to remove the person, and that there is a prospect of doing so within a reasonable period, the principles are not breached: Khadir v SSHD [2005] UKHL 39. In R (oao Krasniq) v SSHD [2011] EWCA Civ 1549 Carnwath LJ explained that the principles are not statutory rules and sight must not be lost of the underlying propositions of law, namely that the power under paragraph 2(3) Schedule 3 Immigration Act 1971 as modified to reflect the UK Borders Act 2007 should not be exercised in a perverse way or in a manner inimical to the objects of the statute.

“[I]mmigration detention powers need to be transparently identified through formulated policy statements” observed Lord Dyson in Lumba [34]. The published policy on the use of immigration detention found in chapter 55 of the Secretary of State’s Enforcement and Instructions Guidance (EIG) does not contain any specific reference to the class of convicted foreign criminals into which the Claimant fell ie those in respect of whom a confiscation order is sought but has not been made by the expiry of the period after which his release from prison must take place. The policy does set out the purposes for which detention is appropriate, including a reference to the presumption against detention and the use of detention where there is reason to believe that the person in question will fail to comply with conditions if released. The next two sections assert that when a decision on detention is being made, the possibility of a convicted criminal absconding or committing further offences needs to be weighed against the presumption against detention. At 55.1.4 of EIG the following appears under the heading ‘Implied Limitations on the Statutory Powers to Detain’

“In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitation implied by domestic and ECHR case law. Detention must also be in accordance with stated policy on the use of detention…..”

At EIG 55.1.4.1 the Guidance is that Article 5 ECHR (the right to liberty and security of the person) and domestic case law is complied with when immigration detention decisions are made by bearing in mind:

“a)

The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting the removal of the individual concerned, is not compatible with Article 5 and would be unlawful in domestic law……;

b)

The detention may only continue for a period that is reasonable in all the circumstances for the specific purpose;

c)

If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised;

d)

The detaining authority (be it the immigration officer or the Secretary of State) should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is.)”

Mr Macdonald Q.C. put the claimant’s case transparently on statute and established principle: the defendant ignored the limits of her power to detain the claimant. Immigration detention must only be for the purpose allowed by the statute: Mr Ibori was detained by the defendant not for deportation within a reasonable period but to defeat the possibility of his escaping potential consequences of the making of a confiscation order and that is not within the statutory purpose. The question of the reasonableness of the period of detention anticipated or the imminence of removal does not even arise. In any event, the defendant had been made aware, at least by 20^th December 2016, that the confiscation proceedings were far from resolved and the hearing due to take place in February 2017 was not a substantive hearing.

On behalf of the defendant Mr Birdling’s written submissions were that the SSHD did intend to effect Mr Ibori’s removal once the status of the confiscation proceedings had been clarified and that his detention from 20^th December was authorised was because “at the time it was not clear whether the Claimant’s presence in the United Kingdom was necessary for the purpose of the confiscation proceedings.” He adds that “..it is reasonable, in general for the defendant to await clarification as to the status of confiscation proceedings before deporting criminals..” reasoning that someone who is outside the jurisdiction may more easily dispose of or conceal his assets and escape any sanction imposed by the court for failing to meet a confiscation order. He maintained in oral submissions that the detention of Mr Ibori for a short period until his release was ordered by the court, was a lawful use of the SSHD’s powers under the 1971 Act.

The law is crystal clear and the defendant’s own guidance reflects the law.

In this case the SSHD has been wrong-footed by the failure of the prosecution to achieve determination of its confiscation proceedings against Mr Ibori prior to his release from prison on licence. On the face of it there is a clear public interest in achieving satisfaction of a confiscation order if and when one is made but the SSHD’s focus has been wrong throughout her dealings with Mr Ibori over the weeks leading to his release on licence in December 2016. A deportation order was in place. Deportation was possible within a reasonable period of time. There were no barriers to his removal under the deportation order. He had waived his right to appeal against it years before and had not indicated any intention to do so in 2016.

In the circumstances there should have been no question of release on conditional immigration bail to try to maintain his presence in the United Kingdom. Removal could have been performed potentially as early as the night of 21^st December 2016 but instead of fixing eyes on that course, release on immigration bail was contemplated because the confiscation proceedings were outstanding. The defendant has not pointed to any power allowing conditions to be attached to immigration bail on the basis of outstanding confiscation proceedings. As the correspondence from his lawyers shows their expectation was that Mr Ibori would not have been allowed to simply depart of his own volition, he would have been taken into immigration detention in order for his removal to be directed and effected swiftly. Removal by way of deportation order (rather than voluntary departure) has important consequences touching the ability of the deportee to return lawfully.

I have no doubt that the SSHD intended to deport Mr Ibori. I am also sure that he wanted to go back to Nigeria immediately on conditional release from his term of imprisonment and certainly before any confiscation order was made against him. But I am driven to the conclusion that the SSHD failed to have regard to the limits on her power to detain. The principle of public law that statutory powers must be used for the purpose for which they were conferred and not for some other purpose has been breached: Lumba [22 & 30] Lord Dyson and [199] Baroness Hale. Mr Ibori was detained under the deportation order for a purpose not permitted by the Act and therefore unlawfully.

In addition, although unnecessary to dispose of this claim, it is clear that the SSHD had ample opportunity to inform herself of the status of the confiscation proceedings prior to the making of the detention order on 9^th December 2016. And by the time Mr Ibori reached his conditional release date the SSHD had been told in the clearest terms that the next hearing for that purpose on 3^rd February 2017 was merely to mention the case and it should have been obvious on a rational analysis that detention from 20^th December 2016 pending the resolution of the financial proceedings would not be detention for a reasonable period in all the circumstances.

The result of misdirected focus in this case has been that Mr Ibori achieved a disposal that any other potential deportee might have preferred: he has been allowed to leave the United Kingdom but without being deported.

In the circumstances I will grant Mr Ibori a declaration that he was unlawfully detained for 1 day and 18 hours, 10 minutes between 20^th and 21^st December 2016.

Mr Macdonald Q.C.’s submissions as to damages are that I should assess the damages as beyond nominal because the contents of Mr Hervey’s statement as to the SSHD’s likely lawful actions upon Mr Ibori’s conditional release from prison should be rejected. He asserts that this is not a case in which the claimant has suffered no loss or damage as a result of the unlawful exercise of the power to detain. For this contention he relies on the fact that the claimant had made his intention to leave voluntarily clear in correspondence with the defendant over the years since his imprisonment. He asserts that absent the unlawful detention Mr Ibori would have been allowed to buy his own ticket upon release from prison and he had made contact with the Nigerian authorities to ensure there would be no difficulty with his proposed travel (although it is not claimed that a ticket had already been purchased by 20^th December 2016). The decision to detain the claimant was always and only for the purpose of confiscation because, says Mr Macdonald, the defendant had previously agreed that Mr Ibori could leave voluntarily. Consequently, says Mr Macdonald Q.C., in line with the reasoning of Lord Dyson in Lumba [90-96] the claimant should obtain compensatory damages and he seeks an assessment of £4,000.

I find Mr Macdonald Q.C.’s submissions less convincing on this topic. It is clear from the correspondence I have been referred to, not least the letter dated 8^th December 2016 drafted by counsel himself, that when the date of his release from prison was approaching in late 2016 the claimant anticipated that the defendant would arrange his deportation to Nigeria under the existing deportation order. Although Mr Ibori had indicated a wish to remove himself in earlier correspondence and there had been no outright rejection of that proposal (and some welcome to it), there is no evidence of an agreement from the defendant to any particular course of action leading up to the conditional release date and Mr Ibori had no travel document himself. I do not accept that Mr Ibori ever believed he would be released from the prison gate after serving the necessary part of his sentence and allowed to go on his way. In my judgment the SSHD intended to detain because she was under a duty to do so unless it was inappropriate and I am simply not persuaded that the Defendant had agreed to allow Mr Ibori to voluntarily remove himself from the jurisdiction in the sense of leaving the United Kingdom without being taken into immigration detention at all.

As Mr Birdling argues for the SSHD, the purpose of damages in this context, is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused Lumba [95] Lord Dyson. In Mr Ibori’s case it is highly pertinent that there was a deportation order in existence and Mr Ibori had no travel document. If Mr Ibori had not been detained unlawfully, as I have found he was, then, I am quite sure that he would have been detained for lawful purposes, ie pending his removal or departure which are 1971 Act lawful purposes of immigration detention. The shortest period of legitimate immigration detention in the circumstances, would have been that which enabled him travel on the 22.40hrs flight to Nigeria on 21^st December 2016, presuming that a seat was available. He was released before that time.

In the circumstances there is no compensatory loss to Mr Ibori and I fix nominal damages at £1.

If costs cannot be agreed between the parties I will make a determination on written representations (of no more than 3 sides in length) provided within 21 days of this judgment.