Smith, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2774 (Admin)

Case No CO/4986/2010[2010] EWHC 2774 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 22nd October 2010
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE McKENNA
(SITTING AS A JUDGE OF THE HIGH COURT)
Between
THE QUEEN ON THE APPLICATION OF DENZIL TAVONA SMITHClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Iain Palmer (instructed by Messrs Barnes Harrild & Dyer) appeared for ClaimantMr Matthew Barnes (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY: In these judicial review proceedings, the claimant, Denzil Tavona Smith, challenges his detention by the Secretary of State pending the enforcement of a deportation order served by him as long ago as May 2006, the detention having commenced on 10th December 2006 and permission to pursue judicial review having been granted by Mitting J on 12th May of this year.[2]It is the claimant's case in summary that there has been throughout the claimant's detention no real or imminent prospect of removal and in the circumstances, as the claimant's counsel puts it at paragraph 5.3 of his skeleton argument, "the Claimant's detention has breached the outer limits of justifiable detention and his refusal to agree to a voluntary departure cannot sustain his detention indefinitely", which I think is quoting from R (on the application of Rostami) v Secretary of State for the Home Department. The claimant seeks a declaration that his detention has become unlawful and I think the date focused on for these purposes is the end of October 2008.[3]The factual background to this claim is not in any dispute, as I understand it. On the 11th July 2001, an individual named Denzil Danai Tavona arrived in the United Kingdom from Zimbabwe with a landing card and a passport suggesting that he was a national of Zimbabwe and he was granted leave to remain for six months. The defendant's position is that this person was the claimant and the claimant for his part does not dispute that he arrived in the United Kingdom on that date. The claimant did not leave and did not regularise his stay after the expiry of his six months leave to remain and on 12th March 2003 the Secretary of State served papers on the claimant notifying him that he was an over-stayer and requiring him to leave the United Kingdom.[4]On 9th August 2003, the claimant was arrested in connection with the rape of a woman with whom he had been living and subsequently he was convicted of that offence with a number of aggravating features and sentenced to five years' imprisonment with an extension of two years and ordered to remain on the Sex Offenders' Register indefinitely.[5]On 20th January 2006, the defendant served a notice of decision to make a deportation order on the claimant, who appealed, asserting that he was a citizen of the United States. That appeal was dismissed by the Tribunal in a decision promulgated on 6th March 2006.[6]On 17th May 2006, the Secretary of State served a deportation order and on 10th December 2006 the claimant, his prison sentence having come to an end, was detained by the Secretary of State pending enforcement of the deportation order pursuant to immigration powers contained in the Immigration Act 1971.[7]On 5th March 2007, the United States embassy confirmed that they had no record of a United States passport having been issued to the claimant. Thereafter, various steps were taken with a view to ascertaining the claimant's true identity and nationality, culminating in the claimant completing a fresh United States travel document application on 17th October 2008, which was forwarded to the United States authorities a few days later. Then, on 29th October 2008, the United States embassy confirmed that the claimant was not a citizen of the United States and it is that date on which counsel for the claimant focuses as being the latest date by which the detention became unlawful.[8]The history does not end there, however, because there were further efforts made by the Secretary of State to pursue the claimant's assertion that he was a citizen of the United States, notwithstanding very persuasive evidence to the contrary that he was in fact a citizen of Zimbabwe involving as counsel for the Secretary of State put it is in his skeleton argument, considerable waste of public funds in the process.[9]Subsequently, on 6th May 2010, further confirmation was received from the United States authorities that the claimant had not been issued with a United States passport and, in the absence of satisfactory evidence that he was an US citizen, that he would not be issued with such a passport. Then, on 18th May 2010, the claimant signed a biodata form, a copy of which is at page 955 and following in the bundle, in which, on the face of it at least, the claimant accepted that he was indeed of Zimbabwean nationality. The form sets out details of his passport number, the place where the passport was issued, date of issue, the date of validity, mother's name, father's name and so on and so forth and, as I say, it is signed on page 957 by the claimant. In parenthesis, the claimant has subsequently maintained that, although he signed that document, in effect he did not mean it and he continues to assert that he is a citizen of the United States.[10]Bail has been refused by the Tribunal on numerous occasions over the intervening period.[11]Against that background, I will now turn to the law. As I understand it, there is no real issue between the parties on this issue. The power to detain a claimant arises by virtue of schedule 3 of the Immigration Act 1971 as amended. Paragraph 2(2) of schedule 3 provides:
"Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision [of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court] he may be detained under the authority of the Secretary of State pending the making of the deportation order."
Subparagraph (3) provides:
"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 (and if already detained by virtue of sub-paragraph (1) and (2) above when the order made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
[12]The legal principles applicable to the assessment of the exercise of the power to detain pending removal derive from the R v Durham Prison Governor ex parte Hardial Singh case. Those principles were explained by Dyson LJ in R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and of course have been the subject of numerous decisions in more recent times, including in particular the Court of Appeal in R (A v Secretary of State) [2007] EWCA Civ 804, to which I was referred by counsel for the defendant.[13]At paragraph 43 of the judgment of Toulson LJ, under the heading "Core principles", he said as follows:
"There is no dispute that the word 'pending' in schedule 3, paragraph 2(2) [which he then quotes] ... simply means 'until'. However, the Home Secretary's exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case."
And at paragraph 45:
"The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
Two issues, therefore, in summary: what is meant by sufficient prospect and, secondly, to what extent should weight be placed on the risk of absconding, the risk of danger to the public, refusal to accept voluntary repatriation and the like.[14]Toulson LJ's requirement that there be sufficient prospect of achieving deportation to warrant detention is explained as it was put in R (on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112:
"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."
It is also, I think, common ground that the impact of a refusal to return voluntarily or to co-operate is relevant to the assessment of reasonableness.[15]At paragraph 54 of A, Toulson LJ put it this way:
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."
And at paragraph 55:
"A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences ... The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
[16]The same issue is addressed by the Court of Appeal in WL (Congo) v Secretary of State for the Home Department [2010] EWCA Civ 111, where the Court of Appeal put it this way at paragraph 102:
"In our judgment, the fact that a FNP [foreign national prisoner] is refusing to return voluntarily, or is refusing to cooperate in his return (for example, by refusing to apply for an emergency travel document, as initially did WL) is relevant to the assessment of the legality of his continued detention: see R (A) v Secretary of State for the Home Department cited below. So is the fact that the period of his detention has been increased, and his deportation postponed, by his pursuit of appeals and judicial review proceedings seeking to challenge his deportation order or his application for asylum or leave to remain, particularly if his applications and appeals are obviously unmeritorious. In our judgment, as a matter of principle, a FNP cannot complain of the prolongation of his detention if it is caused by his own conduct."
In that case, the Court of Appeal concluded that a detention in the region of four years was lawful in the circumstances where there was a risk of re-offending and a refusal to accept voluntary repatriation and, of course, it is right that I remind myself that in this case the period of detention to date is some 46 months, so getting up to four years.[17]A further material consideration in this case relates to a recent change in policy by the Secretary of State as regards returns to Zimbabwe. Prior to this month, forced returns to Zimbabwe have been suspended and suspended for a number of years since, I think, before Mr Smith was detained following completion of his sentence. However, on 14th October 2010, the Minister for Immigration made an announcement in the House of Commons which is recorded in Hansard in the following terms:
"I am announcing today our intention to end the current suspension of enforced returns of failed asylum seekers to Zimbabwe. They are some Zimbabweans who continue to have a well founded fear of persecution; we continue to grant protection for those people. As with any other nationality, every case is considered on its individual merits and against the background of the latest available country information from a wide range of reliable sources including international organisations, non-governmental organisations and the Foreign & Commonwealth Office. The courts have found that not all Zimbabweans are in need of international protection and given the improved situation on the ground in Zimbabwe since the formation of the Inclusive Government in 2009, the time is now right to bring our policy on returns of failed Zimbabwean asylum seekers into line with that of every other country. This will mean that failed asylum seekers from Zimbabwe will from now on be treated in exactly the same way as failed asylum seekers of all other countries when it comes to enforcing returns."
[18]That said, however, it is also apparent from a letter from the head of immigration at the UK Border Agency, also dated 14th October, that:
"... the Immigration and Asylum Chamber of the Unified Tribunal Service will be hearing a further country guidance case on the general safety of return to Zimbabwe in the near future. For practical reasons, we will not actually enforce any returns until after the country guidance judgment has been handed down."
So it is clear from that letter that there will be some delay before enforced removals pursuant to this new policy can begin.[19]Fairly, counsel for the claimant in his skeleton argument accepted that the defendant acted in accordance with the law in attempting to establish from the claimant whether he was indeed a citizen of the United States despite evidence to the contrary, that it was reasonable for the defendant to categorise the claimant's behaviour in regard to his claim to be an United States citizen as unco-operative and that the defendant had at all material times reason to believe that the claimant was a Zimbabwean and that there were grounds to believe that the claimant might respond. What is not accepted on behalf of the claimant is that he ever accepted that he was a Zimbabwean, that the defendant has ever properly considered that there was a realistic prospect of imminent return to Zimbabwe, that the defendant has reviewed that likelihood or the likelihood of re-offending appropriately or indeed whether there could be alternative measures to detention that could be put in place.[20]By contrast, the Secretary of State's position is that the detention has at all material times been lawful because the claimant has wilfully frustrated removal; that there is a high risk that the claimant will abscond and a significant risk of serious offending on release, particularly so far as threats to women are concerned; that the claimant, of course, has always had the option of voluntarily returning to Zimbabwe and so bringing about the end of his detention; and some reliance is also placed on the refusal of the tribunal on numerous occasions to grant bail.[21]To my mind, there is much force, to put it mildly, I think, in the defendant's contention that the claimant has been unco-operative throughout. Until he signed the biodata form confirming he was a national of Zimbabwe, an admission he subsequently withdrew, he has consistently asserted that he was a citizen of the United States in the face of significant evidence to the contrary, which has included the various enquiries made on numerous occasions with the United States authorities on the basis of information supplied by the claimant, his fingerprints and the like, the fact that he entered the United Kingdom with a landing card and passport stating that he was a national of Zimbabwe and the fact that he has a sister who offered surety for him, who also has a Zimbabwean passport and asserted that she is from Zimbabwe to an immigration judge in July of 2007 and who confirmed on interview that she had been born in Zimbabwe and had never been to the United States. The claimant has also in the past stated that his mother was born in Zimbabwe, although he has subsequently asserted that she was born in the United States.[22]In the circumstances, it is plain in my judgment that the claimant has sought to manipulate the immigration system to his benefit in an attempt to frustrate deportation. That is a factor which I can and do take into account on the authorities and is a factor which militates significantly in favour of the defendant's continued detention of the claimant. The claimant's failure to co-operate to achieve a voluntary removal likewise is a factor of considerable weight tending to justify the Secretary of State's continued detention of the claimant.[23]Equally, as it seems to me, on the issue of absconding, I have no hesitation in concluding that there is and has been throughout, or would have been had the claimant been at large, a significant risk of absconding. It has to be borne in mind in this context that the claimant arrived in this country, he sought leave to remain for six months and then disappeared, he made no effort to regularise his position and only came to the attention of the Secretary of State when he was arrested for and subsequently convicted of a very serious offence. He has maintained throughout, save for the signing of the biodata form in the circumstances I have already outlined, that he was a citizen of the United States and not of Zimbabwe that has failed to co-operate with the defendant in that regard. It is also right to record that he has been dishonest in relation to his immigration status on other occasions and in this regard counsel for the defendant relies on the fact that the claimant enrolled at South Thames College as a British citizen but he has separately informed the defendant that his birth certificate was with his legal representatives and that he had sent it to the Secretary of State, neither of which were true.[24]Moreover, it is clear on the material that the claimant has no meaningful connection with any particular area or with any individuals in the UK and has no realistic prospect of establishing a lawful right to remain in the United Kingdom.[25]There is then, therefore, in my judgment a very high risk that the claimant would have absconded if he had been released and this too is a factor which tends to support the defendant's position as to the legality of the claimant's detention.[26]I then come to the issue of the risk of re-offending. It was submitted on behalf of the claimant that the defendant had manifestly failed to demonstrate that there was a high risk of re-offending or to show that this risk had been adequately reviewed during the claimant's detention and in this regard I was taken to a number of documents in the second large bundle -- the OAS report, which is at page 161 to 164; a report of the offender management information, 709; a further one at 874 -- all of which make references to the risk of offending, so that, for example, the OAS system document, page 861 in the bundle, says "I would assess a low risk of re-offending in general", but at page 862:
"In those circumstances I would assess that he poses a medium risk of further sexual offending and subsequent harm to women he might become involved in a close personal relationship with."
This assessment is supported by Risk Matrix 2000.[27]It was fairly submitted on behalf of the claimant that these documents must have been based on assessments which were made probably in 2006 and this to my mind is an unsatisfactory aspect of the case. On the other hand, I was also taken by counsel for the defendant to the sentencing remarks of HHJ McGregor-Johnson. They are set out at pages 599 and 600 in the bundle and at page 600, after a short intervention, the learned

judge says as follows:

"One of the matters that I have to consider is whether there is a danger of other offences of this sort once you are released from the inevitable custodial sentence. I have some concerns about your behaviour in the future, but from the fact that you have had a caution for assaulting the same victim and from the attitude towards her demonstrated not only by the way you acted that night but also by what I read in the pre-sentence report about you, and it is for this reason that I consider it appropriate in this case to extend the period of supervision that you will be subject to by passing what is called an extended sentence."
It is also right to record in this regard that there are a number of aggravating features identified by the judge in his sentencing remarks. That said, I also accept that those remarks were made as long ago as November 2003.[28]There is some further evidence on which the Secretary of State relies and that is to be found in the witness statement from Vikki Lewis. She makes reference at paragraph 14 of her witness statement to the last attempt to interview the claimant and she says as follows:
"... I decided I would allocate a male immigration officer to take over from me as his aggressive behaviour was becoming worse and I felt I needed to remove myself from the situation for my own safety."
At paragraph 16 she also refers to the fact that a three inch lock-knife was found in the claimant's room during a target search and that a quantity of marijuana was found on the claimant's person during a strip search. That said, it is also right that I should record that the claimant shared a room with at least one other individual and therefore there is no evidence that the lock-knife belonged to the claimant but the claimant did admit to the possession of marijuana for his own purposes and received a caution. Whilst therefore not the strongest evidence of re-offending, there is to my mind sufficient evidence of there being a significant risk of offending.[29]What then of the position now? Counsel for the defendant, I think rightly, submits that the change of policy is a dramatic development in the sense that the Secretary of State will begin enforced removals, albeit there will be, as I have already recorded, some delay in the implementation of that policy pending the country guidance case to which I have referred.[30]In those circumstances, I am satisfied that there is a realistic prospect of the defendant achieving her aim of deporting the claimant to Zimbabwe. The fact that, as we sit here today, it is not possible to put a date on that does not alter the fact that there is a realistic prospect. It follows in my judgment that, for the reasons which I have already referred to in terms of the risk of absconding, the failure of the claimant to co-operate with the defendant, indeed his attempts to frustrate removal and the risk of offending, I am driven to the conclusion that the detention of the claimant throughout the period by the Secretary of State was and remains lawful since I am, as I say, satisfied that there is a realistic prospect of removal to Zimbabwe, notwithstanding that Mr Smith maintains the assertion in the face of significant evidence to the contrary that he is a citizen of the United States and not a citizen of Zimbabwe.[31]I have been asked by the Secretary of State whether I would make a ruling to the effect that the claimant is indeed a national of Zimbabwe. Although the evidence that I have seen and read is wholly one way, with the exception of the assertion to the contrary by the claimant, I am reluctant to make such a declaration in the absence of having hard evidence from Mr Smith himself and therefore I decline to make that declaration.[32]Costs?[33]MR BARNES: My Lord, we seek our costs in the usual way.[34]THE DEPUTY: Yes.[35]MR PALMER: My Lord, the claimant is publicly funded. I --[36]THE DEPUTY: So the order should be what?(1) Claim dismissed.(2) -- is it public funding assessment --[37]MR PALMER: That is correct. Detailed assessment, my Lord, of the claimant's publicly funded costs.[38]THE DEPUTY: And do I make an order for the claimant to pay the defendant's cost, not to be enforced without leave of the court? That is the usual order, is it not?[39]MR PALMER: My Lord, yes.[40]THE DEPUTY: Right. So claimant to pay the defendant's costs of the claim, standard basis, detailed assessment, if not agreed, not to be enforced without the leave of the -- who would it be in the Administrative Court?[41]MR BARNES: I am sorry, my Lord?[42]THE DEPUTY: Who would it be who would give the leave? It would not be a district judge? Is it the Master?[43]MR BARNES: My Lord --[44]THE DEPUTY: If I just say "of the court".[45]MR BARNES: Just "of the court", my Lord, is the usual order in my experience.[46]THE DEPUTY: That is fine. Good. Well thank you both very much.[47]MR PALMER: I am obliged, my Lord.

Cited in 1 later judgment