Secretary of State for the Home Department v Jobe [2016] EWCA Civ 1035

Case No C4/2014/2105[2016] EWCA Civ 1035
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE DAVIS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/10/2016
Before
LADY JUSTICE BLACKLORD JUSTICE TOMLINSONLORD JUSTICE LINDBLOM
Between
Secretary of State for The Home DepartmentAppellantBaboucarr JobeRespondent
Mr William Hansen (instructed by the Government Legal Department) for AppellantMr David Jones (instructed by Duncan Lewis Solicitors) for RespondentHearing Hearing date : 27 July 2016
JudgmentLord Justice Tomlinson :Introduction
[1]The Respondent, Baboucarr Jobe, was detained under administrative immigration powers from 1 November 2011 until 31 October 2013 pending his anticipated deportation as a foreign criminal. By a decision made on 8 October 2013 although promulgated on 10 October 2013 the First tier Tribunal hearing the Respondent’s second statutory appeal against the deportation order narrowly decided that deportation would be a disproportionate interference with his Article 8 rights. The factor which, it appears, “just tipped” the balance in Mr Jobe’s favour was that some 15 months after the deportation order was served on him his partner, who has the right to remain in the United Kingdom, gave birth to a child of whom Mr Jobe is the father. That child is not a UK citizen. That child was born just 5 days short of one year after Mr Jobe’s initial statutory appeal to the FtT against the deportation order had been dismissed. After that appeal had been dismissed and permission to appeal had been refused the Respondent ceased to report in accordance with the conditions of bail granted to him after the conclusion of the hearing in the FtT but before the outcome was known. There thus began a period of persistent absconding during which the child must have been conceived.[2]Ironically, the decision of the FtT on the second statutory appeal was made on the very same day, 8 October 2013, as this court gave judgment in MF (Nigeria) v SSHD [2014] 1 WLR 544, emphasising that great weight is to be given to the public interest in deportation of foreign criminals and that very compelling reasons are required to outweigh that public interest. The birth of a child conceived in such circumstances would not ordinarily weigh heavily in the balance in a foreign criminal’s favour. I entertain very grave doubt whether the FtT, had it had available to it the guidance given in MF, and more particularly in subsequent cases, would have concluded that the balancing exercise which it had to conduct came down in Mr Jobe’s favour. However it did, and the Upper Tribunal dismissed an appeal against that decision and refused the Secretary of State permission to appeal to this court. No further application for permission to appeal was pursued. Mr Jobe is thus a very lucky man.[3]Not content with his good fortune in that regard, Mr Jobe has pursued a claim to challenge the legality of his detention from 1 November 2011, when he was fortuitously arrested by the police whilst drunk and disorderly in Central London. It was only in this manner that his persistent absconding came to an end and he was moved to Harmondsworth Immigration Removal Centre and detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971.[4]In the judicial review proceedings thus brought William Davis J determined on 9 May 2014 that Mr Jobe’s detention had indeed been unlawful from 7 March 2013 to 31 October 2013, although not before. The judge made a declaration to that effect. It is against that Order that this appeal is brought by the Secretary of State. The conclusion of the judge was that “the period of detention in its totality was longer than reasonable in all the circumstances, not least because by March 2013 it should have been apparent to the Secretary of State that it would not be possible to effect deportation within a reasonable period”. The judge also directed that there should be an assessment in the Queen’s Bench Division of the damages to which Mr Jobe is entitled by virtue of his unlawful detention.

The facts

[5]In order to understand the issues which arise on the appeal it is unfortunately necessary to set out the melancholy history of this case in some detail. In what follows I have both borrowed from and supplemented the factual background supplied by Mr William Hansen, counsel for the Secretary of State, in his skeleton argument for the appeal.[6]The Respondent was born on 28 February 1990 and is a national of Gambia. The FtT found that he had significant learning difficulties and a very low IQ, but in view of the way he performed in the witness box it did not accept expert evidence that his powers of comprehension and oral expression were those of a 7 year old. This resonates with the finding by a Probation Officer expressed in a pre-sentence report in March 2010 that “in interview he did not appear to have cognitive deficits”. It is plain that in the balancing exercise which it conducted this aspect did not loom large in the conclusions of the FtT hearing the second appeal – difficulties caused by his low level of educational achievement would be no different in Gambia from those he would face here.[7]On 27 April 2007 the Respondent entered the UK. On 29 December 2009 he was convicted at Horseferry Road Magistrates’ Court of offering to supply a controlled drug of Class B, cannabis, and of failing to surrender to custody at an appointed time. He was fined. On 4 January 2010 the Respondent was convicted at Horseferry Road Magistrates’ Court of possessing a controlled drug of Class B, cannabis, and again fined. On 18 January 2010 the Respondent was convicted at Blackfriars Crown Court of supplying a controlled drug of Class B, cannabis, and a community order was imposed, including a requirement to do 80 hours unpaid work. The Respondent did not perform the community order, partly because he was arrested and detained in relation to other alleged offences, in respect of which he was in due course acquitted. On 27 April 2010 the Respondent was convicted at Blackfriars Crown Court of failing to comply with the requirements of the community order resulting from the earlier conviction and failing to surrender to custody at an appointed time. The sentence imposed on 18 January 2010 was varied and a sentence of 12 months immediate imprisonment substituted therefor. As a result the Respondent became a foreign criminal as defined in the United Kingdom Borders Act 2007 and subject to the automatic deportation provisions in section 32 of that Act. On 1 June 2010 a letter informing him of his liability to automatic deportation was served on him.[8]On 6 October 2010 the Respondent appeared at Isleworth Crown Court and was acquitted of outstanding firearms offences. On 26 October 2010 he was detained under immigration powers. On 5 November 2010 a deportation order was made and on 10 November 2010 that order and associated paperwork was served on the Respondent.[9]On 16 November 2010 the Respondent lodged an appeal against the Appellant’s decision to deport. On 8 December 2010 a letter was sent to the Respondent’s mother requesting that the Respondent’s passport be submitted. On 15 December 2010 an Emergency Travel Document (“ETD”) referral was sent to the Criminal Casework Directorate (“CCD Ops”). On 5 January 2011 the Respondent refused to comply with the requirements of the ETD application interview in the light of his outstanding appeal. On 18 January 2011 the Respondent was again seen by CCD Ops and no ETD application was completed in the light of the outstanding appeal.[10]On 7 February 2011 the Respondent’s appeal against the decision to deport was heard by the First tier Tribunal. On 9 February 2011 bail was granted to the Respondent on condition that he reported twice weekly. On 15 February 2011 the Respondent failed to report. On 18 February 2011 the Respondent again failed to report. On 22 February 2011 the Respondent did report and claimed that he had also reported on 18 February 2011 but that he had been refused entry as he did not have his bail form or any other documents with him. On 21 February 2011 the Respondent’s appeal was dismissed by the FtT. On 15 March 2011 the Respondent again failed to report. On 21 March 2011 permission to appeal was refused by the First tier Tribunal. As from April 2011 the Respondent simply ceased to report altogether. On 5 July 2011 permission to appeal was refused by the Upper Tribunal. On 6 July 2011 the Respondent became appeal rights exhausted. In August 2011 the Respondent was identified as being an absconder at large. On 18 October 2011 an ETD application was made. On 1 November 2011 the Respondent was arrested by police in Central London, on account of his being drunk and disorderly, and thereafter placed in immigration detention as already described on the basis that he was going to be removed pursuant to the deportation order, his appeal having failed and he having become appeal rights exhausted.[11]On 3 April 2012 a bail application was made in which the Respondent claimed to be the father of a child and in a subsisting relationship. On 10 April 2012 that bail application was refused. On 30 May 2012 the Appellant Secretary of State invited the Respondent to provide further information in respect of his Article 8 claim. On 13 June 2012 the Respondent submitted an application to the Appellant to revoke the deportation order invoking Article 8 and relying upon his claimed family consisting of a partner and child. On 9 July 2012 the Gambian High Commission agreed to issue an ETD. On 27 September 2012 the Respondent’s application to revoke the deportation order on Article 8 grounds was refused and was certified as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. On 29 September 2012 removal directions were set for the Respondent’s removal to Gambia on 9 October 2012. On 1 October 2012 the Respondent requested reconsideration by the Appellant of her decision of 27 September 2012. On 4 October 2012 reconsideration was refused by the Appellant. On the same day the Respondent submitted further representations. On 7 October 2012 those further representations were refused by the Appellant. On 8 October 2012 the Respondent submitted yet further representations. The Respondent issued judicial review proceedings and made an application for interim relief. The Appellant refused further representations. Collins J granted an injunction ordering that the Respondent should not be removed and the removal directions were cancelled.[12]On 12 October 2012 the Respondent requested temporary admission. On 16 October 2012 temporary admission was refused. On 27 December 2012 the Respondent submitted further representations. On 24 January 2013 permission to apply for judicial review of the certification under section 94 was granted by Walker J.[13]On 7 March 2013 the application for permission to apply for judicial review was withdrawn by consent following the Appellant agreeing to reconsider the application to revoke the deportation order and to grant an in-country right of appeal in the event of refusal. On 22 March 2013 the Respondent submitted further representations including a pre-action protocol letter challenging his continuing detention. On 23 March 2013 the application to revoke the deportation order was refused, but of course no fresh certification was made and the Respondent therefore had an in-country right of appeal. On 30 May 2013 the Respondent lodged an appeal out of time against the refusal to revoke the deportation order. On 4 June 2013 the Respondent was granted permission to appeal out of time. The hearing of the appeal was fixed for 17 July 2013. On 17 June 2013 the Respondent was refused bail.[14]On 1 July 2013 the Respondent filed a further claim for judicial review to challenge the legality of his detention. On 13 August 2013 Dobbs J refused permission to apply for judicial review on the paper application. On 10 October 2013 as already described the First tier Tribunal allowed the Respondent’s second statutory appeal against the deportation order. On 28 October 2013 the Appellant Secretary of State was granted permission to appeal to the Upper Tribunal against the decision of the First tier Tribunal. On 31 October 2013 the Respondent was granted bail and released from detention. On 5 December 2013 Mr Christopher Butcher QC sitting as a Deputy High Court Judge granted the Respondent permission to apply for judicial review at the oral renewal hearing. On 15 January 2014 the Upper Tribunal dismissed the Appellant’s appeal against the decision of the FtT of 10 October 2013. On 23 April 2014 the Upper Tribunal refused the Appellant’s application for permission to appeal to the Court of Appeal. That application was not renewed.[15]As already described, the outcome of the judicial review proceedings was that the judge found that the Respondent had been unlawfully detained between 7 March 2013 and 31 October 2013. I should perhaps add that during that time his detention had been reviewed on 11 March, 8 April, 3 May, 28 May, 25 June, 23 July, 20 August and 10 October.

The issues

[16]The Respondent’s core allegation is that the Secretary of State should have recognised, following her decision on 7 March 2013 to reconsider the Respondent’s application to revoke the deportation order and to permit an in-country right of appeal in the event of further refusal, that the existence of that further right of appeal represented an impediment to removal of the Respondent within a reasonable time, so that she could not thereafter satisfy the second and third Hardial Singh principles which require that the powers to detain be exercised reasonably and for the prescribed purpose of facilitating deportation. Specifically, those two principles, as reaffirmed by Lord Dyson in Lumba v SSHD [2012] 1 AC 245 at 264, involve that the deportee may only be detained for a period that is reasonable in all the circumstances and that 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, she should not seek to exercise the power of detention.[17]The essence of the Appellant’s case is that the Respondent had committed two offences of supplying Class B drugs and had been sentenced to 12 months imprisonment and that he therefore fell to be treated as a foreign criminal within the meaning of section 32 of the UK Borders Act 2007 whose deportation was conducive to the public good. Based on his immigration history, he also presented a very high absconding risk, and if released, he was likely to abscond and/or re-offend, thereby defeating the purpose for which the deportation order against him had been made. The Respondent’s record of complying with restrictions was very poor. On 26 October 2010 he was detained under immigration powers at the end of his custodial sentence. On 5 November 2010 he was made the subject of a deportation order. He appealed against that order and applied for bail. He was granted bail on 9 February 2011 subject to reporting restrictions. He reported sporadically until his appeal was dismissed but then he absconded and remained at large until fortuitously re-arrested on 1 November 2011. At all material times up to 10 October 2013 the Respondent was the subject of a deportation order and the only barrier to his removal was the Respondent’s appeal to the First tier Tribunal. The fact that that appeal was allowed does not of itself mean that the Appellant should have released the Respondent earlier. The decision of the FtT was, as the Tribunal itself acknowledged, “finely balanced”, and the balance only just tipped in the Respondent’s favour. On 28 October 2013 the Appellant was granted permission to appeal against that determination. She therefore had a reasonable expectation of a successful outcome.[18]In particular, submits the Secretary of State, the mere existence of an in-country right of appeal in the event of further refusal did not render the Respondent’s continuing detention in breach of the third Hardial Singh principle: see R, (oao Cente Sheikh Noor Mohammed) v SSHD [2014] EWHC 1898 (Admin) at paragraph 30 per Mr Ben Emmerson QC sitting as a Deputy Judge of the High Court. Every detention review from 11 March 2013 onwards recognised the in-country right of appeal as a barrier to removal but considered that removal remained realistically achievable and that the substantial risk of absconding and appreciable risk of re-offending and the harm that would be caused thereby justified further detention. Thus in the very last detention review dated 10 October 2013, issued coincidentally on the same day as the FtT’s determination, full consideration was given to the continued detention of the Respondent and the conclusion reached by the authorising officer was that:
“The FNO is a serious offender presenting in my view a wider risk of re-offending and absconding. He has had a recent late appeal heard, the outcome of which is awaited. The recent JR application is not a barrier to removal and the ETD can be revalidated when the FNO is appeal rights exhausted. Removal within a reasonable time frame is therefore clearly feasible. Authority to detain for 28 days is given. The case owner should chase the outcome of the recent appeal as a priority.”

The Law

[19]In his judgment in Lumba Lord Dyson said this: “104. How long is a reasonable period? At para 48 of my judgment in I’s case ([2003] INLR 196), I said: "It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences." 105. So far as I am aware, subject to the following qualifications, the relevance of these factors has not been questioned. The qualifications are first that the relevance of the risk of offending on release is challenged on behalf of the appellants in the present case. Secondly, "the nature of the obstacles" begs two questions that have been raised on this appeal, namely what is the relevance, if any, of delays attributable to the fact that a detained person(i) is challenging the decision to deport him by appeal or judicial review and will generally not be deported until his challenges have been determined; and(ii) has refused to return voluntarily to his country of origin?” "It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."[20]Later in his judgment Lord Dyson stressed the paramount importance of the risks of absconding and re-offending, the former frustrating the purpose of the statutory power to detain, the latter exposing the public to the risk of further serious harm. Thus at paragraph 121 he said:
“121. To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”
[21]Finally, in Fardous v SSHD [2015] EWCA Civ 931 Lord Thomas CJ said this:
“44. It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. This has been made clear in a number of cases: see for example paragraph 54 of the judgment of Keene LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and the judgment of Lord Dyson in Lumba at paragraph 121. 45. Although the risk of absconding will therefore always be of paramount importance, a very careful assessment of that risk must be made in each case, as the magnitude of that risk will vary according to the circumstances. It may be very great, for example, where the person has, as in this case, a clear track record of dishonesty and a knowledge of how to "work" the controls imposed to regulate immigration in the European Union. Another example where the risk may be high is where the person refuses voluntary repatriation that is immediately available to him. It is important to emphasise that the risk of absconding is distinct from the risk of committing further offences and not dependent on that further risk. The risk of re-offending requires its own distinct assessment. 46. However, as is accepted on behalf of the Secretary of State, the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably "trumps" other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention.”

The judgment below

[22]The judge cited some of the key passages from the judgment of Lord Dyson in Lumba, concluding with paragraph 121 which I have reproduced above. He then continued: “13. It is those last words, coupled with the birth in 2012 of the claimant's child, which really form the essential basis of the claimant's case today. He argues that, taking into account the nature of the offences for which he received his sentence, the period over which they were committed, the risk of there being further offences causing any real harm to the public and the risks of true absconding by him, even if he were made the subject of some form of electronic control, all of that should have pointed any reasonable Secretary of State to the conclusion that as at February 2013 detention was no longer justified and the need to retain control of the claimant could have been maintained in some other proportionate way. The defendant argues that there was here a very high absconding risk, there was serious criminality, with at least a medium risk of reoffending, and those two factors in reality are decisive. The fact that there was a statutory appeal with merit, which is conceded, would not defeat those two decisive factors.14. It is necessary for me to consider first a proposition which is put in the defendant's skeleton argument: "The claimant has admitted his offending behaviour, which shows him to be a serial criminal." If that is intended to mean that he is somebody who is a serious offender or somebody who commits repeated offences for a significant period, in my judgment, on the facts of this case, that submission is plainly unwarranted. This is a young man who, over a matter of perhaps 3 or 4 months, certainly no more, committed a series of what, if I may respectfully say so, were relatively trivial offences. If the Sentencing Council Definitive Guideline had been in operation at the time then this would have been a case where the starting point for sentence would have been a high level community order with a range from a low level community order to 26 weeks' custody. The fact that the Sentencing Council Guideline was in 2012 intended to represent current sentencing practice in most cases is probably accurately reflected by the fact that the original sentence in this case was indeed a low level community order. It is only because the work was not done that this claimant ever falls foul of the foreign criminal provisions. I do not ignore the guidance given to those who have to consider these matters by the Secretary of State, a copy of which I have, as to the seriousness with which drug offences are considered. However, in the context of this particular individual and his particular offending I am satisfied that the reasonable Secretary of State should have put into the balance the relatively trivial nature of this offending.15. There is no doubt that the claimant has a poor history in terms of reporting and answering to bail, and the Secretary of State was perfectly justified in coming to the conclusion that he presented an absconding risk, possibly even a high absconding risk. But I have no evidence that he absconded in the sense of running away. Strictly I have no evidence that he did not, ie no evidence that he was somebody who simply went and resided at his bail address. The fact that absconding is a term of art for these purposes should not blind the Secretary of State to the fact that she must consider the precise nature of the absconding by the claimant. Whilst (as is made perfectly plain in the judgment of Lord Dyson) absconding and re-offending risks are of paramount importance, there must be some qualitative analysis of each of those risks when any individual's case is being considered.16. The decision-making process of the Secretary of State, once it became apparent that Collins J had ordered that the claimant should not be removed, is set out in the very substantial bundles with which I have been provided. At page 1,059 of the bundle the officer considering removal in September 2012 reported that the only barrier to removal was the judicial review application. On 12 February 2013 (see page 1111 of the bundle) the reporting officer identified that again the judicial review potentially was a barrier to removal, though, as has been pointed out by counsel for the claimant, as appears on page 1111, the person actually making the decision did not know at that stage what status or stage the judicial review had reached. On 6 March 2013 the decision maker, acting on behalf of the Secretary of State, noted that the position now had been reached that, assuming Mr Jobe agreed, the judicial review application was to be withdrawn, his application to revoke the deportation order would then be reconsidered and in the event that that application refused he then would have an in-country right of appeal. The determining officer giving authority to continue detention at that stage said this: "The presumption of liberty is outweighed in this case by the high risk of absconding. I note the very serious matter for which he received a substantial custodial sentence and his lack of compliance with immigration and court conditions. The only barriers to removal are the decision in relation to his [judicial review]. In all the circumstances I conclude that Mr Jobe has no incentive to comply with reporting and other restrictions if he was released at this stage in his case."17. That, says the claimant, really is the critical point at which a different decision should have been made. The decision maker was plainly wrong in concluding that a very serious matter had been committed by the claimant. He had received a custodial sentence only because he had breached the community order originally imposed. The custodial sentence was the minimum that could have been imposed to attract the provisions of the 2007 Act. When it is said the only barrier to removal was the decision in relation to his judicial review, that was simply wrong. There was the barrier to his judicial review, of course, but thereafter the claimant had an in-country right of appeal to the First-tier tribunal.18. In April, the officer considering the case by now knew that agreement had been reached on the judicial review. On this occasion the authority read simply as this: "I authorise continued detention based on a clear risk of harm and of absconding, which I believe outweighs the presumption of liberty. I am satisfied that removal within a reasonable period can still be achieved, but we must now come to the appropriate decision on the further representations prior to the next review." It is said that there is a clear risk of harm. Yet is it based on relatively trivial offending some considerable time before. The assertion that removal within a reasonable period can still be achieved is made without any consideration of the appeal rights of the claimant.19. In June 2013, by which time the deportation had been affirmed and there was an appeal in train, the decision maker wrote in these terms: "I believe that the risk of absconding that he poses is sufficient to outweigh the presumption of liberty at the present time. He has a substantive hearing date set for his appeal and I hope it can be concluded swiftly. We are in a position to effect removal swiftly should he exhaust his appeal rights."20. I am satisfied that on the particular facts of this case, and I emphasise purely on the facts of this case, that no reasonable Secretary of State could have reached those variation (sic) conclusions over the period from March 2013 onwards had she applied her mind fully to the nature of the claimant's offending, the actual history of his absconding, the true nature of the risk he posed and the other ways in which control could be maintained over him whilst any issue in relation to deportation was being considered. Moreover, I conclude that by March 2013 it was no longer apparent, nor could it have been, to the Secretary of State that it would be possible to effect deportation within a reasonable period. That judgment was not something to be reached purely on the basis of a starting point of March 2013; it was to be reached on the basis of a man who had been in custody since November 2011.21. There is a further matter which is of relevance in this case. In 2012, the claimant had had a child and there was for some time a dispute over paternity. That was resolved at the end of 2012. The claimant argues that when one considers with care and reviewing carefully the decision-making process of the defendant, there was no rational assessment and no rational decision, in relation to the impact on the child. It is of course the case that in a case where there is a deportation under section 32 of the 2007 Act a child does not act as some kind of trump card. Nonetheless, the impact on the child was plainly relevant. In those circumstances, I accept the submission made by the claimant, not, if I may respectfully say so, addressed in any detail by the defendant, that the exercise of consideration of detention by reference to that issue was flawed.” "The presumption of liberty is outweighed in this case by the high risk of absconding. I note the very serious matter for which he received a substantial custodial sentence and his lack of compliance with immigration and court conditions. The only barriers to removal are the decision in relation to his [judicial review]. In all the circumstances I conclude that Mr Jobe has no incentive to comply with reporting and other restrictions if he was released at this stage in his case." "I authorise continued detention based on a clear risk of harm and of absconding, which I believe outweighs the presumption of liberty. I am satisfied that removal within a reasonable period can still be achieved, but we must now come to the appropriate decision on the further representations prior to the next review." "I believe that the risk of absconding that he poses is sufficient to outweigh the presumption of liberty at the present time. He has a substantive hearing date set for his appeal and I hope it can be concluded swiftly. We are in a position to effect removal swiftly should he exhaust his appeal rights."

Discussion

[23]Mr David Jones for the Respondent rightly reminded us that it will rarely be appropriate for the Court of Appeal to interfere with the decision of a judge of the Administrative Court who has been called upon to decide whether detention has continued for an unreasonable time. In R (Muqtaar) v SSHD [2013] 1 WLR 649 Stephen Richards LJ said, at paragraph 46:
“46. I have taken the view that the conclusion reached by the deputy judge on each of the issues considered above deserves considerable respect, given that he directed himself correctly on the law and undertook the task of applying the law to the facts in an obviously careful and conscientious manner. In the judgment of the court in the Abdi case, Sedley LJ pointed out, at para 7, that the concepts of “reasonable period” and “in all the circumstances” are open-ended and describe “a large area of judgment to be made in each case that comes before the court”
. He said, at para 62:
“The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.”
In similar vein, Longmore LJ observed in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at [73] that judges “have to make a judgment taking a range of (often competing) factors into account”, but that “once a judge has done that, it will be a rare case in which it would be right for this court to interfere”. I agree with those observations, which in my view represent the correct approach of an appellate court to cases involving the application of Hardial Singh principles.” “The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.”[24]I have no doubt that this is one of those rare cases where we should and must interfere. In my judgment the judge misdirected himself and reached a conclusion which was not sensibly open to him. He did so because he trivialised the Respondent’s offending, failed to give appropriate weight either to the risk of harm consequent upon re-offending or to the circumstance that the Respondent was at high risk of absconding and failed to recognise that the Secretary of State had a soundly-based expectation that she would be able to remove the Respondent within a reasonable time.[25]Rightly anticipating the likely reaction of the court to what he described as the judge’s infelicitous choice of language at paragraphs 14, 17 and 18 of his judgment, Mr Jones at the outset of his excellent and sustained argument volunteered the submission that the judge’s description of the Respondent’s offending as “relatively trivial” was “not acceptable” and he did not attempt to support it. I can understand how the judge came to use this language as in the overall scheme of offending this offending was distinctly at the lower end of the spectrum. But with respect to the judge to describe the offending in this particular context as trivial or as not very serious was misplaced.[26]Firstly, the relative seriousness of the offending is in itself of little relevance in the exercise which the Secretary of State had to conduct. By virtue of being a “foreign criminal” as defined in the UK Borders Act 2007 the deportation of the Respondent was without more in the public interest, as made clear by Parliament through the medium of paragraph 396 of the Immigration Rules. That public interest is to be afforded great weight and very compelling reasons are required to outweigh it – see MF (Nigeria) v SSHD above.[27]Secondly, in the specific context of administrative detention pending deportation, the Secretary of State had to have regard to her own policy as published in her Enforcement Instructions and Guidance. Paragraph 55.1.3 (as it was at the material time), under the rubric “Use of detention” provides, in part:
“In looking at the types of factors which might make further detention unlawful, case owners should have regard to . . . Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list here, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.”
The list of offences to which reference is there made is headed “Crimes Where Release From Immigration Detention Or At The End Of Custody Would Be Unlikely”. It includes “all drug offences except minor possession”. It follows that the supply of Class B drugs is for this purpose, and not inappropriately, categorised as without more a serious offence.[28]Thirdly, the Secretary of State had to have regard not so much to the “seriousness” of the offending but rather to the seriousness of the harm to the public if the Respondent did re-offend. That involves a consideration of the type of harm involved. The seriousness of the harm involved in the supply of drugs does not require explanation. When sentencing the Respondent on 27 April 2010 His Honour

Judge Henry Blacksell QC, a judge highly experienced in criminal matters, said this:

“You were dealing in cannabis which is what came before me in Camden in September. That in itself; I am afraid people who are dealing in Camden get no sympathy in this at all. It is a continuing and troublesome problem for the poor people of Camden who try and go about their daily lives without being hassled by drug dealers. The attraction of those who deal in drugs and use drugs is a constant worry and threat to that population. The Courts recognise that and try as best they can to do something about it. There is another difficulty that in November you were in Denman Street in the heart of London offering to undercover police officers to obtain anything they wanted, and you would get anything for them, but it was cannabis. The Magistrates committed you for sentence in relation to that. . . . But obviously you were at this time readily and regularly dealing.”
[29]In my view the misplaced characterisation of the offending by Davis J as relatively trivial and his failure to advert to the serious harm to which re-offending might give rise coloured his approach to the difficult exercise of judgment which he had to undertake. Additionally, in approaching that task the judge nowhere recognised the great weight which must be accorded to the public interest in removal of foreign criminals such as the Respondent which Parliament has expressed through the medium of the 2007 Act and the Immigration Rules. That this Respondent was in the greater scheme of criminality a figure of modest importance was of little or no relevance, particularly having regard to the especially damaging consequences of the supply of drugs.[30]Thus the judge gave no weight to the risk of re-offending, which is on any view an important factor. Mr Jones points out that, although there is a lack of consistency in the various reports, the risk of the Respondent re-offending was for the most part assessed as low. I agree that this is so, but the difficulty which Mr Jones faces is that as a consequence of the judge’s mischaracterisation of the offending and his failure to acknowledge the harm to which re-offending would give rise, he simply gave no weight at all to what is on any view an appreciable risk, even if it is a low risk.[31]However of possibly greater significance is that the judge also gave no weight to the risk of absconding, which is “a factor of critical and paramount importance in the assessment of the lawfulness of the detention” – see per Lord Thomas CJ in Fardous, above. I agree with the judge that the risk of absconding requires qualitative analysis, although it is the magnitude of the risk with which the Secretary of State will principally be concerned. There is in principle only one way in which to abscond and that is by failure to report. The risk of absconding strikes at the very heart of immigration policy, as Lord Thomas emphasised in Fardous. In any event the Secretary of State was here plainly entitled to take the view that the risk of absconding was both serious and significant. The Respondent had two convictions for failure to surrender to custody at an appointed time. It may be that there was an explanation for his failure on the second occasion, 2 February 2010, the suggestion being that by then he may have been already under arrest, but little turns on this in view of the subsequent history. Although there was spasmodic failure to report in the period whilst his first statutory appeal was being considered by the FtT, after that appeal had been dismissed and permission to appeal had been refused the Respondent thereafter as from April 2011 failed to report at all. He did not respond to correspondence directed to his bail address, he was identified as being at large, and it was only by chance that he was apprehended on 1 November 2011 whilst drunk and disorderly in central London. This was cynical absconding at a time when he was liable to immediate removal without further appeal rights. With respect to Mr Jones I cannot accept the force of his argument that after March 2013 the Respondent would have had an incentive to comply with bail conditions as if he absconded he would have no opportunity to establish his right to remain. As was observed by an Immigration Judge when refusing the Respondent bail on 17 June 2013, he had previously absconded at a time when he said that he was in a relationship with the partner who subsequently bore his child, and it does not appear that the alleged subsistence of that relationship acted as any form of control over his behaviour. The Immigration Judge continued:
“The Applicant states matters have changed because he now has a child, but it is not proposed that the couple live together, and the partner did not attend today – I was given a number of different reasons for that. In the light of the Applicant’s history I have no confidence that the Applicant would answer to bail.”
In these circumstances I find it difficult to accept that the Secretary of State can reasonably be criticised for continuing to believe after March 2013 that there was a serious risk that the Respondent would abscond and attempt thereby to frustrate his removal.[32]Mr Jones points out that nowhere in the detention reviews is there any discussion of the possible efficacy of some form of electronic control, such as tagging. Mr Hansen for his part contends that the reference to this point was something of an afterthought by the judge, who mentions it in passing at paragraphs 13 and 20 of his judgment but who did not mention it in argument and did not invite Mr Hansen’s submissions on the point. Given the way in which the case has developed I do not think that we have the materials properly to assess this point. Of course if electronic controls such as tagging were effective it might be thought to be the appropriate course to be taken in many cases where there is a high risk of absconding but a relatively low risk of harm to the public through re-offending, but I do not understand this to be the conventional approach. Mr Jones’ submission overlooks the circumstance that pursuant to the Secretary of State’s own policy this was a case in which it would only be appropriate in exceptional circumstances to consider release from custody. The short answer to the point is that it is not in my view demonstrated that the Secretary of State adopted an approach which fell outside the bounds of reasonable decision-making.[33]Mr Jones also submits that the Secretary of State gave insufficient weight to the findings of the First tier Tribunal in 2011 to the effect that the Respondent was a vulnerable young man with very significant learning difficulties. I have already dealt with this point. It is plain that this factor was considered of less importance by the First tier Tribunal hearing the second statutory appeal. The submission overlooks the fact that the reports also indicate an impulsive individual prone to the influence of drugs and alcohol.[34]Mr Jones urges upon us the significance of the concession recorded by the judge at paragraph 13 of his judgment that the Respondent’s second statutory appeal had merit. There was some debate before us as to whether this concession had actually been made, and whether it was open to Mr Hansen to suggest that it had not been made. This debate in my view generated more heat than light. I would not read into the concession which I will assume was made any more than an acceptance that the appeal was not hopeless, reflecting the dichotomy to which Lord Dyson referred at paragraph 121 in his judgment in Lumba between a hopeless legal challenge and a meritorious appeal. Since the appeal had succeeded it could hardly have been characterised as hopeless. I do not think that any of this has any bearing on the question whether the Secretary of State could reasonably have been confident of success. In my view plainly she could.[35]In this regard the judge did not mention the important guidance given by Stephen Richards LJ in this court in R (MH) v SSHD [2010] EWCA Civ 1112 to the following effect:
“64. There is little room for debate about the relevant legal principles, given Mr Fitzgerald's acceptance at this level of I (Afghanistan) and A (Somalia). Save in relation to the relevance of lack of co-operation, I see no material difference between the statements of principle in those two cases, but the approach of Toulson LJ in A (Somalia) seems to me to be particularly helpful when considering the issues raised here about the prospect of securing the claimant's removal to Somaliland. As Toulson LJ said, there must be a "sufficient prospect" of removal to warrant continued detention, having regard to all the other circumstances of the case (see [32] above). What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case. 65. I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. In my view Mitting J was not purporting to do that but was simply asking himself the questions "by when?" and "on what basis?" for the purposes of his own consideration of the case before him. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was "some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be" (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released.”
[36]For all these reasons the judge’s conclusion was vitiated by his erroneous approach. A conclusion that the Secretary of State had here acted unlawfully was not within the ambit of reasonable decision-making.[37]This renders it unnecessary to give separate consideration to the judge’s conclusion, expressed at paragraph 21 of his judgment, that there was no rational assessment and no rational decision in relation to the impact on the child of the Respondent’s continued detention. As I have already pointed out, the impact on the child, whilst of course relevant, was in all the circumstances capable of being a factor of only very modest weight. The judge’s conclusion in this regard cannot possibly sustain his finding that the detention was unlawful. We did not hear full argument on the merits of the judge’s conclusion as to the adequacy of the Secretary of State’s treatment of this issue and I shall accordingly express no concluded view on it. I need only remark that I find the judge’s conclusion surprising. The Secretary of State sought the advice of the professional adviser at the UKBA Office of the Children’s Champion who advised:
“Mr Jobe and Ms J have a one year old daughter. She may have visited Mr Jobe in detention up to seventeen times, so there is a possibility that there is contact. She lives with her mother. On that basis it is my view that Mr Jobe’s continued detention is having an impact on his daughter in that it is probably interfering with both her bonding with her father and could potentially be interfering with Mr Jobe’s bonding to and commitment to his daughter. This could impact his willingness to support her for the remainder of her childhood. Should Mr Jobe be deported it is likely that his daughter would grow up without face to face contact with her father and this could have a long term impact on her emotional development. These are possible impacts that you need to consider when you make decisions about the proportionality of detaining and deporting Mr Jobe.”
[38]The Authorising Officer considered that advice, reporting on 11 March 2013, so far as relevant:
“Mr Jobe’s only child is being cared for by her mother there is no evidence to support that Mr Jobe has ever been the primary carer for his daughter. Prison visit records seem to back up the assertion that Mr Jobe is close to his daughter, however there needs to be further elements of dependency involving more than normal emotional ties between Mr Jobe and his daughter. Mr Jobe has demonstrated a tendency to re-offend and has demonstrated a blatant disregard for the laws of the United Kingdom, he has no valid leave to remain in the United Kingdom and has no access to the United Kingdom labour market or benefit system leaving him with no source of income; therefore it is believed that he is likely to re-offend mainly for financial means to support himself. Mr Jobe’s daughter is very young and Mr Jobe has but played a small part in her life to date courtesy of his offending. It is therefore considered that Mr Jobe’s separation from his child and partner is entirely proportionate in the legitimate interests of the prevention of disorder and crime, the protection of health and morals. It is considered therefore that both detention and removal are proportionate.”
The judge’s conclusion for which he gave no independent reasons is thus difficult to understand, but I need say no more about it as it can have no impact on the overall outcome of the appeal. It is considered therefore that both detention and removal are proportionate.”[39]I would allow the appeal, set aside the declaration made by the judge and, if necessary, replace it with a declaration to the effect that the detention of the Respondent from 1 November 2011 to 31 October 2013 was lawful. Lord Justice Lindblom :[40]I agree.

Lady Justice Black :

[41]I also agree.