ASD v Secretary of State for the Home Department

The claimant is an Algerian national who has been resident in the UK since 1999 and was granted refugee status in 2001. He embarked on a criminal career, which culminated in him being convicted in February 2009 of attempting to contaminate goods offered for sale to the public for which he was sentenced to a total of nine years imprisonment. He was served with a notice of liability to deport on 7 September 2010. He was notified of the cessation of his refugee status on 28 December 2012. He did not challenge that decision. A deportation order was signed on 20 February 2013 and served on 1 March 2013. He did not appeal against the decision to deport him. He has been in detention since his release from the custodial part of his sentence of imprisonment on 16 January 2013, a period of 54 months.

The first attempt the claimant made to challenge his deportation was on 29 December 2015, almost three years after the deportation order had been made. The defendant rejected the claimant’s further submissions and removal directions were set. The claimant applied for judicial review on 15 February 2016. The Upper Tribunal rejected the claimant's application for judicial review on 27 April 2016 and certified the claim as being totally without merit. He made further representations on 9 June 2016, which were subsequently rejected. His removal directions were re-set for 9 July 2016, later altered to 26 June 2016 because of the availability of a flight to Algiers. The removal was cancelled following a second judicial review, challenging the defendant’s decision of 23 June 2016. Removal directions were re-set for after 16 September 2016. The Upper Tribunal ordered a stay and the directions were cancelled.

At the hearings before Thirlwall J on 6 and 14 October 2016 the claimant sought permission to challenge the lawfulness of his detention and applied for bail. She granted permission for judicial review but refused bail. She found that the claimant’s risk of reoffending was high and whilst the risk of absconding was not a high risk she could not ignore it altogether. On 13 December 2016 Collins J quashed the exercise of the defendant’s certification power in section 96 of the Nationality, Immigration and Asylum Act 2002; that decision is now subject to an appeal. The defendant, however, permitted a further immigration appeal, which was to be heard on 13 March 2017. Following late service of the claimant’s expert evidence, the hearing was adjourned to 8 May and then subsequently adjourned to 20 June 2017. On 11 May 2017, the defendant made a further decision maintaining the claimant’s detention.

This matter came before me on 1 March 2017 when I adjourned the substantive hearing to allow the hearing at the First-tier Tribunal on 13 March 2017 to take place. The adjourned hearing before me took place on 19 May 2017.

The detention powers set out in paragraph 2 (3) of schedule 3 of the Immigration Act 1971 are subject to the restraining principles set down in Hardial Singh [1984] 1 WLR 704, subsequently upheld in I v SSHD [2002] EWCA Civ 888 and Lumba & Mighty [2011] UKSC 12. They are that (a) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose, (b) the deportee may only be detained for a period that is reasonable in all the circumstances, (c) if before the expiry of the reasonable period, it becomes apparent that the secretary of state will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention, and (d) the Secretary of State should act with reasonable diligence and expedition to effect removal.

The essential question for this court is whether there is now an insufficient prospect of removal to warrant continued detention. I have been referred to authorities which establish that there is no need for a finite time in which removal can reasonably be expected to be effected, Fardous v SSHD [2015] EWCA Civ 931, and to other authorities where judicial comments have been made as to the length of the detention, Bashir [2007] EWHC 3017, Wang [2009] EWHC 1578, MH v SSHD [2010] EWCA Civ 112 and DZ [2017] EWCA Civ 14. I have also been referred to authorities that make it clear that the risk of harm to the public and of absconding are relevant in the determination of that question, Lumba & Mighty [2011] UKSC 12, A v SSHD [2007] EWCA Civ 804.

I have been greatly assisted by Mr Armstrong’s submissions on behalf of the claimant and by Ms Smyth and Ms Anderson who appeared, respectively, on the first and second hearing dates, on behalf of the defendant.

The claimant’s submission is that the period of detention, now 54 months, far exceeds what is a reasonable period in which to effect the claimant’s removal. The defendant's submission is that the only barrier to the claimant's removal is the outcome of the claimant's appeal to the First-tier Tribunal. Balanced in the scales against release are the risks of serious harm to the public and absconding if the claimant is released.

The claimant committed a series of serious offences in May 2008. He used a mixture of his own faeces, urine and chemicals such as bleach to contaminate goods sold to the public, including at Tesco and Morrisons. The sentencing judge said:

"There are in my view no mitigating circumstances whatsoever in relation to these offences. They were separate instances, pre-meditated and planned by you. Your action showed a callous disregard for public safety and you caused contamination of good amounting to over £700,000. Not only that, you caused considerable alarm and anxiety in the minds of those that were present. … You insisted on all the witnesses attending, despite the strength of the evidence against you, which was on any view, overwhelming. Of course, you have expressed no remorse; hardly surprising since you continue to deny [that you are] guilty. I find you to be arrogant and inflexible in your thinking. You are regarded as posing a high risk of harm to the public. You were the subject of a community order for earlier offences in 2007, and I quote directly from the pre-sentence report: “Managing his risk to the general public proved unmanageable. He has not engaged well with supervision and denies guilt in face of all the evidence. Based on his past behavior, attitude and his poor response to supervision the likelihood of re-offending is assessed as imminent. [His] risk of harm to the public is assessed as very high and he is currently managed at MATHA (sic) level 3 and is a critical public protection case.” I have taken the view that the appropriate sentence in this case is one of an indeterminate nature; in other words you would be kept in prison until it is regarded as safe to release you. My hands, however, are tied."

I have been referred to the claimant’s OASys report of 8 November 2016, part of which I have set out below. The report states that:

This claimant’s case is concerned with the application of the Hardial Singh principles set out above. Mr Armstrong submits that this case fails the second, third and fourth Hardial Singh principles. The claimant’s position throughout that there is insufficient prospect of the claimant’s removal for his detention to be lawful, having regard to (a) the length of time already spent in immigration detention, (b) the likelihood that his immigration claim would take some time to resolve, (c) the absence of any material risk of absconding, and (d) the manageability of his offending risk on licence conditions, and (e) the desirability of releasing him whilst probation support remains available until 17 July 2017.

Mr Armstrong also relies upon the course of events since the hearing before Thirlwall J on 14 October 2016 as evidence that the defendant has failed to act with reasonable diligence and expedition to effect removal, in particular the defendant’s application for an adjournment and failure to comply with directions without proper explanation. He no longer advances the claim that his continued detention breaches the defendant's policy in respect of those who have suffered torture.

He submits the claimant has now passed the point where the risk to the public can justify continuing to detain him. Mr Armstrong relies upon the particular value of releasing the claimant now whilst he is subject to parole licence with access to significant support, as well as reporting and other conditions. He concedes that the claimant’s offending risk is high but submits that has to be understood in the context of the type of harm concerned, which can be managed by stringent licence conditions. In any event it is not at a level which can justify continuing detention after more than four years.

The defendant contends that there remains a sufficient prospect of the claimant’s removal to justify continued detention. As it stands the appeal is due to be heard on 20 June 2017, if there is no merit in the appeal, and the claimant is released, there will have been a substantial risk of harm to the public in the interim. The serious risk of public harm which the claimant poses is a powerful factor against his release. The relevant agencies consider that the claimant poses high risk of serious harm. The OASys assessment considers that the risk to children, public and certain known adults is high. Thirlwall J was "quite satisfied that there is a high risk of the claimant committing further offences causing serious harm if he is released".

It is submitted that significant deference should be paid to the judgment of the NPS in light of their professional experience and direct involvement in the case. The NPS view is that while licence conditions and residence at an Approved Premises will contribute towards mitigation of the risk of serious harm, risk management is particularly difficult and the claimant's response is untested. Thirlwall J concluded that there was "in the round powerful evidence of the fact that even with supervision in the community, with which he was apparently complying, he offended in a very striking and dangerous way". Notwithstanding that his risk of reoffending in custody is low, he recently assaulted his cell-mate. Thirlwall J commented "it is clear on his own account that when he is under stress he offends." Indeed, the OASys report records him as saying when asked why he claimed he was unlikely to offend in the future “there's nothing in my head to do a crime but you never know what is going to happen."

The defendant submits that her assessment of risk is clearly borne out by the claimant’s history, the assessment of agencies who have come into contact with him, the assessment of the sentencing judge and his own recent conduct. It is submitted that balanced against this is that his appeal is to be shortly determined. It is submitted that his risk of absconding is high in circumstances where he has no close ties to the UK. He has not expressed any willingness to comply with the deportation order. Whilst it is acknowledged that placement in appropriate accommodation might reduce the risk of absconding, he has previously failed to comply with supervision in the community. Thirlwall J concluded that "the claimant on any view is an unusual and difficult man and it is at least possible that he will try and avoid deportation if his application should fail."

The defendant also relies upon the fact that the delay in the resolution of his asylum claim was because he unreasonably failed to advance an appeal in 2013. Collins J rejected his contention that he had a satisfactory reason for not appealing in 2013. It is submitted that the argument that he should be released whilst his licence conditions remain is misconceived because the purpose of his detention is to effect his removal. At most his licence conditions could only affect the analysis of harm and a deep sense of grievance.

In making my own assessment in this case, I have to consider whether there is sufficient prospect of the claimant’s removal to permit his continued detention. I am reminded that the sole bar to the claimant’s removal is the outstanding appeal to the First-tier Tribunal. If dismissed the temporary bar on the claimant’s removal falls away. I am informed that the appeal jurisdiction is limited to a material error of law and permission requires a realistic prospect of success. Against that there is the considerable period the claimant has spent in detention, now 54 months awaiting deportation, which the claimant describes as now time to call a halt. The length of time the claimant has been detained awaiting deportation, following the completion of the custodial part of his sentence, causes me considerable disquiet.

There seem to me be various relevant factors. First, there was considerable delay in the claimant seeking to challenge the deportation process, notwithstanding that he was detained following his release from the custodial part of his sentence in January 2013. Second, the risk that the claimant presents to the public if he is released from detention and re-offends. In assessing that risk, I have in mind the circumstances of the offences which he committed, upon which the trial judge expressed trenchant views, having heard the evidence during the trial. Of course, since his conviction, the claimant has been in custody but there are a number of factors which are relevant, namely, his own recognition that his response to situations outside the boundaries of detention may be unpredictable, and his own reaction to events. I have in mind the assault that took place on the other occupant of his cell as recently as in July 2016. More particularly the opinions in the OASys report, prepared by experienced professionals in the field, assess his risk of reoffending as high. I agree with the assessment made by Thirlwall J that the risk of the claimant re-offending is high and the risk of him absconding cannot be discounted if his appeal against deportation fails.

Mr Armstrong submits that the claimant’s licence period does not expire until 17 July 2017 and that during that period the claimant can be supported in approved accommodation and be subject to conditions. That period is now very short. There is a real issue as to what would happen to the claimant after that period expires in the event that the hearing on 20 June 2017 does not take place or an appeal is made against any decision made. In any event, despite Mr Armstrong’s persuasive submissions, whatever conditions are imposed, the professional assessment is that the claimant presents a high risk of harm to the public of reoffending.

In these circumstances, I have concluded that on the facts of this case the defendant has justified the claimant’s continued detention. I am satisfied there remains a sufficient prospect of the claimant’s deportation. Albeit the length of time that has elapsed is substantial and beyond those referred to in the authorities whether, as I am reminded by Mr Armstrong before this judgment was handed down, the claimant’s deportation takes place before or after the summer holidays because of the lack of availability of flights to Algeria over the summer period. The defendant has indicated that after three months a further application for judicial review could be made if the appeal to the First-tier Tribunal, or a subsequent appeal, has not been concluded. Ms Anderson also suggested on 19 May 2017 that a further bail application could also be made.

On the basis that the sole obstacle to deportation is the appeal to the First-tier Tribunal, I am satisfied that there is a realistic prospect of the claimant’s deportation, and, accordingly there has not been a breach of the second and third Hardial Singh principles. Although the resolution of the appeal to the First-tier Tribunal has taken longer than the defendant clearly anticipated at the hearing before Thirlwall J on 14 October 2016, and indeed subsequently at the hearing before me on 1 March 2017, I am not satisfied that the defendant has failed to act without reasonable diligence, particularly in circumstances where the claimant served expert evidence late shortly before the hearing on 13 March 2017. Accordingly, I do not consider that the fourth Hardial Singh principle has been breached.

The application for judicial review is therefore dismissed.