Aitouaret, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3136 (Admin)

Case No CO/9347/2010[2010] EWHC 3136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 29 October 2010
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE KAY QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF FATEH AITOUARETClaimantv
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 7404 1424(Official Shorthand Writers to the Court)
Miss A Jones (Instructed By Bhogal Partners) Appeared for ClaimantMr N Chapman (Instructed By Treasury Solicitors) Appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: This case raises issues as to the correlation between the powers of the Secretary of State for Justice to release a prisoner on home detention curfew and the powers of the Secretary of State for the Home Department to detain a person under section 36 of the UK Borders Act 2007. It specifically involves the true construction of section 36 of the 2007 Act. No authority has been put before me to indicate that the particular words relevant to this case have previously been considered. In relation to the claimant, the question is whether there can be overlapping or parallel periods of detention in prison and detention for immigration purposes at least while consideration is given as to whether he should be deported. The alternative view is that the two periods are mutually exclusive.[2]The application for permission to apply for judicial review was issued on 3 September 2010. It sought the review of an order made on 26 August 2010 by designated Immigration Judge Appleyard. He had held as void an order made on the previous day by an immigration judge who granted bail to the claimant. Permission to apply for judicial review was granted by Sir Michael Harrison on 8 October 2010. The Secretary of State's position today is different to the position she adopted in the acknowledgment of service. It is now accepted that the decision of designated Immigration Judge Apppleyard was made in error. Further, the Secretary of State has withdrawn on 6 September this year the order by which the claimant was detained for the purposes of deportation.[3]The matter is not academic, however. The relief sought on the application, leaving aside the quashing of the decision of designated Immigration Judge Appleyard, includes a mandatory order requiring the release of the claimant and an order for damages for unlawful detention. Those remedies are very much in dispute. What the claimant says is that he has been unlawfully detained since 26 August this year. He remains in prison.[4]First of all, the history of the case. The claimant is a national of Algeria. He was granted indefinite leave to remain in 1990. Since then he has committed a number of criminal offences in this country culminating in January 2010 in a sentence of 20 months' imprisonment for possession of cocaine with intent to supply. His sentence and licence expiry date in accordance with that sentence would be 20 September 2011. His date for release on licence which would be compulsory after he had served half of his sentence is on 20 November this year. The first date for his eligibility for early release on licence, pursuant to the scheme for home detention curfew, was 9 July of this year.[5]It appears from the papers before me that in May of this year, the UK Border Authorities began the process of considering whether the claimant should be subject to automatic deportation given that his period of imprisonment was in excess of 12 months. A questionaire was indeed sent to him to provide information. At about the same time, the prison authorities began the process of considering whether the claimant was eligible for release under home detention curfew. An assessment was made and the conclusion on 28 May of this year was that the claimant was a suitable candidate for such early release. He appears to have been informed in writing that immigration issues might affect that release.[6]However, it seems there is no issue that the prison authorities concluded that the power to release on home detention curfew arose and would be exercised on 9 July of this year. Indeed, it appears the terms of such release were agreed with the claimant and although it is not in the papers before me, he signed a consent form agreeingto the terms of such release.[7]The case record sheet in respect of the claimant was produced for today's hearing. There is an entry on 9 June 2010 in which it is recorded the claimant has been granted home detention curfew and will be released on 9 July, unless a case owner faxes a letter to the prison instructing it to detain him. On 29 June 2010, the main case worker who was assigned to this case, Mr Anderson, records that as far as he was aware, the release date was 20 November 2010 and he was prompted by his colleague that the subject had been allowed home detention curfew and therefore the date of his release had changed to 9 July.[8]On 5 July, the notes record that confirmation had been received by the prison that they would be releasing the claimant on 9 July if no IS91 was received. An IS91 is an order to detain a person for immigration purposes under section 36 of the UK Borders Act 2007. On 6 July, there is a record that the claimant's initial detention under immigration powers for a period of 28 days was authorised. As a result, an IS91 ordering the detention of the claimant was issued on that day. It states that the Secretary of State thinks section 32(5) of the UK Borders Act 2007, which is the provision for automatic deportation, applies to the claimant's case. Consequently he was liable to detention under section 36(1) of that Act and it had been decided he should be detained.[9]He was given notice of his right to apply at any time to an immigration judge or chief immigration officer to be released on bail. Accordingly, 9 July came and passed. Nothing physically happened to the claimant. He remained detained in custody at the prison where he was serving his sentence. He applied for chief immigration officer bail and that was refused on 16 July. In the meantime, on 15 July, the Secretary of State had decided to make a deportation order in accordance with section 32(5) of the 2007 Act. The claimant has appealed against that order. As I understand the position today, he failed in that appeal at the first tier and has taken the matter to the upper tier.[10]He then made an application for bail to the first tiertribunal on 18 August. That application was granted with certain conditions on 25 August by an immigration judge. Without the claimant's knowledge or indeed the knowledge of anybody representing him, an urgent fax was sent by the UK Border Agency to the first tier tribunal at which the application for bail succeeded. That was sent on the following day, 26 August and was marked as "very urgent". It recorded the fact that the claimant had been granted home detention curfew. It said:
"Unfortunately the UK Border Agency wrongly believed that the claimant's date for release was 9 July and therefore incorrectly placed him in detention under immigration powers. The claimant was thereforein dual detention in error from 9 July."
[11]It suggested the claimant should not have been in immigration detention and therefore was not eligible for bail until the date when he completed his custodial sentence. It stated that it was ultimately for the governor to decide whether the claimant remains in custodial detention or is released on home detention curfew.[12]It suggested that the bail application perhaps be withdrawn. It requested the judge - it did not specify which judge - to look into the issues, rescind the decision and cancel the bail application or withdraw the bail. Without any reference to the claimant, the designated immigration judge effectively stepped into the arena and purported to render void the decision of the previous judge to grant bail. As I said earlier, it is now accepted that that action was impermissible and an error.[13]On 3 September, this application for permission to apply for judicial review was issued and on 6 September the defendant withdrew itsIS91 by which it ordered the detention of the claimant. The defendant states its position now is that it is a matter for the governor of the prison whether to detain orrelease the claimant. As I have said, the claimant has not beenreleased.[14]I turn then to the legal provisions I have to apply which relate to this case. The power to release prisoners on licence is to be found at section 246 of the Criminal Justice Act 2003. It provides that the Secretary of State for Justice may release on licence a fixed term prisoner at any time during the period of 135 days ending with the day on which the prisoner will have served therequisite custodial period. In this case the earliest datefor realse was 9 July 2010. Subsection (4) provides that the power to release does not apply where a prisoner is liable to removal from the United Kingdom. The definition of when a prisoner is liable to removal from the United Kingdom is set out in section 259 of the Act:
"A person is liable to removal if (a) He is liable to deportation under section 3(5) of the Immigration Act 1971 (c.77) and has been notified of a decision to make a deportation order against him."
[15]If a prisoner is released early on licence under the home detention curfewscheme, section 255 of the Act provides for the power to recall such a prisoner. That power arises if it appears to the Secretary of State that the relevant person has failed to comply with any condition included in his licence or his whereabouts can no longer be electronically monitored at a place specified in the curfew condition. In such circumstances, the Secretary of State may revoke the licence and recall the person to prison. The section also, as one might expect, provides for the procedure for a person who is so recalled to make representations with a view to having such recall revoked.[16]The other relevant statute is the UK Borders Act 2007. Section 32(5) provides that where a foreign criminal is convicted in the UK and sentenced to a period of at least 12 months' imprisonment, the Secretary of State must, subject to certain exceptions, make a deportation order under section 3(5) of the Immigration Act 1971. Section 36(1) of that Act provides that:
"A person who has served a period of imprisonment may be detained under the authority of the Secretary of State. (a) While the Secretary of State considers whether section 32(5) applies, and (b) Where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order."
[17]It is common ground that the Act does notdefine what is meant by "a person who has served a period of imprisonment". Therein lies the difficulty which has surfaced in this case. What is the true construction of those opening words of section 36(1)? There are a number of possibilities.[18]One possibility is that what it contemplates is a person who has served the whole of the custodial element of a sentence of imprisonment. That possibility can be easily rejected. The Act does not stipulate that is what it is aimed at and it presents difficulties when, as in this case, a person is released prior to the release date which would otherwise be halfway through a sentence of imprisonment. At the other end of the spectrum of possibilities is the construction advanced by the Secretary of State which is that the words of the Act relate to a person who has served any period of imprisonment. The word "any" is not used in that section and it seems to me it would have the perverse effect that the power to detain would arise after a prisoner has served literally a second of any custodial sentence.[19]There is no reason to havesuch a power to detain. That much is plain, it seems to me, from looking at the structure of the legislation, the way it interelates and to a limited extent by looking at extracts from Hansard for the House of Lords Grand Committee on 23 July 2007 when the original clause which became section 36 was discussed. Section 36, on its true meaning applies to a person who has served such period of imprisonment as he or she is required to serve pursuant to the custodial sentence. What the legislation is concerned with, it seems to me, is the ability to detain a foreign prisoner who has committed an offence and received a sentence of at least 12 months in circumstances where he might otherwise be released.[20]Prior to the earliest date when he might be released, he is a serving prisoner on the terms of his custodial sentence. It seems to me there is no need to exercise any power to detain him under section 36. The concern as to his whereabouts arises when he is going to be released for whatever reason and the Secretary of State has not then made up her mind whether to issue a deportation order.[21]The section affords a period of grace, if one can put it that way, while consideration is given as to whether section 32(5) of the 2007 Act applies and if so, whether it is appropriate to make a deportation order. In that period, when the prisoner might otherwise be released, he will be detained under the powers of section 36(1). Once a deportation order is made, there are then powers under the Immigration Act 1971 to detain a foreign prisoner pending his removal from the UK. Thus one can see there is a sensible system by which the detention of an individual can be regulated. Once he is detained either under section 36 of the 2007 Act or under the Immigration Act 1971, he has the right to apply for bail, a right of course which was exercised in this case.[22]It follows from what I have said that I do not accept there can be a duality of detention. It seems to me by its very definition that the power to detain under section 36 arises when and only when the foreign prisoner has served a period of imprisonment. Those are the very words used in the section. If the Secretary of State's construction is right as to the meaning of those words in section 36, then it might just as well have said, "A person who is serving a period of imprisonment may be detained".[23]Having construed section 36 in that way, I come back to consider what the position is in relation to this particular claimant. The problem arises because as one might expect he was not physically released from prison on 9 July only to be then detained under section 36 of the 2007 Act. He remained exactly where he was. It is only now at this stage that the court has to consider the basis on which he remained in custody after 9 July this year. One possible construction, and this is the one advanced on behalf of the Secretary of State, is that although he was in all other respects considered eligible for releaseon home detention curfew under section 246 of the 2003 Act, he was not so released; in other words, the power was never exercised. In that case, he remained after 9 July 2010 as a serving prisoner. On that interpretation of events he was a person who had not served his period of imprisonment. If that is right, then he had no status to apply for bail to the first tier tribunal and the whole process was invalid, not simply the intervention of thedesignated immigration judge. If that interpretation is right it would also have the effect that he has remained in lawful detention and continues to be a serving prisoner up to today. He will continue to serve his sentence until he has to be released on 20 November 2010.[24]The other possibility as to what occurred on 9 July is advanced on behalf of the claimant. What is said is that although nothing physically happened, the claimant was in reality released on licence under the home detention curfew scheme. He was simultaneously, or immediately thereafter perhaps, detained under section 36(1) of the 2007 Act. He remained in detention under that power from 9 July until 15 July 2010. On 15 July 2010 he was detained under the powers in the Immigration Act 1971 because at that stage the decision had been made to deport him. He was therefore entitled to apply for bail under the relevant provisions of the 1971 Act. He did so and was duly granted bail on 25 August. The intervention of the UK Border Agency and designated Immigration Judge Appleyardwas unlawful for a number of reasons.[25]The basis on which the intervention was made was itself misconceived but also there were procedural irregularities in that no notice was given to the claimant and no opportunity afforded to him of contesting that intervention. The position then, according to the claimant, is that having been granted bail on 25 August 2010, necessary arrangements should have been made for his release and he has been unlawfully detained since 26 August 2010.[26]I am driven to the conclusion that the claimant's submissions are correct. It follows from my construction of section 36(1) of the 2007 Act that there cannot have been a parallel detention of the claimant pursuant to two statutory regimes. Either he had served a period of imprisonment and was being detained by the Secretary of State for the Home Department under section 36 of the 2007 Act, or he had not served a sentence of imprisonment and was still a serving prisoner. The two cannot overlap. All the evidence on the documents before me, in particular the case record sheet maintained by the Home Office, point to the conclusion that the claimant was treated as released on licence under section 246 of the 2003 Act and remained in detention only because of the exercise by the defendant of the powers under section 36(1) of the 2007 Act. He had served a period of imprisonment and was then detained for immigration purposes.[27]He successfully applied for bail on 25 August 2010 and was therefore liable to be released as far as the immigration authorities were concerned. Indeed, on 6 September, the notice detaining him under the immigration jurisdiction was withdrawn. His status since 26 August 2010 has in my judgment been one of unlawful detention. He was no longer a serving prisoner by definition. If it was then inappropriate to have him on licenceon home detention curfew, then there were powers to revoke such a licence. Whether they could have been exercised is not a matter for me to say but the only proper route by which his licence could have been revoked was through the statutory route set out in the Criminal Justice Act 2003. That route was not taken. He was simply retained within the prison system.[28]Accordingly, this application succeeds. I will hear now argument about remedies.[29]MR CHAPMAN: My Lord, before moving on to that, I think there was just one date that needs to be corrected in your Lordship's judgment.[30]THE DEPUTY JUDGE: Did I make a mistake in the date?[31]MISS JONES: You said 20 August when your Lordshipmeant the 25th.[32]THE DEPUTY JUDGE: I cannot remember now when I said that, but the relevant date for bail was 25 August, yes?[33]MISS JONES: Yes, my Lord.[34]MR CHAPMAN: It is not actually the date I was thinking of in any event but when talking about section 246 and the day on which the prisoner will have served therequisite custodial period, I think your Lordship referred to the date which the whole of the sentence would have expired in 2011, as opposed to 20 November 2010.[35]THE DEPUTY JUDGE: I am sorry. If I did, that was a mistake.[36]MISS JONES: My Lord, there is one point. You said the application for bail was indeed made to the first tier tribunal and granted with conditions on 20 August. You said the 25th several other times so I do not think it matters greatly.[37]THE DEPUTY JUDGE: It was meant to be the 25th.[38]MISS JONES: Yes, my Lord. In terms of consequential orders, the reason this case was listed so quickly after permission was granted earlier this month was because it is a case relating to liberty and that is the first thing to focus on. What order your Lordship should make in order to -- so that he is released as soon as possible. Does your Lordship have the first tier tribunal's bail decision?[39]THE DEPUTY JUDGE: Where is that?[40]MISS JONES: Sorry, I beg your pardon. Page 59 of the original JR bundle.[41]THE DEPUTY JUDGE: Yes. Live and sleep at a particular address, report to the agency Tuesdays and Fridays.[42]MISS JONES: And two sureties.[43]THE DEPUTY JUDGE: And sureties. Yes, two sureties.[44]MISS JONES: The order I suggest, subject to anything my learned friend has to say, is that your Lordship orders the claimant be released forthwith according to the order made by Immigration Judge Nicholls on 25 August 2010.[45]THE DEPUTY JUDGE: Have those sureties been put in place?[46]MISS JONES: No, because the way it works is -- that is why he was not actually released on the 25th because it takes a day usually to arrange for it. There are two ways in which those sureties can be taken. Either literally money is taken upfront or they have to sign forms promising to pay it if he absconds. That is why I am saying forthwith because the sureties either need to sign their forms or come up with the money. I did take instructions from my solicitor about whether the sureties were still in a position to do so and I am instructed firmly they are. They both visited those instructing me at the beginning of the week.[47]THE DEPUTY JUDGE: Any order I make will be that he is released on the terms of his bail.[48]MISS JONES: Precisely so, my Lord.[49]THE DEPUTY JUDGE: And obviously if the sureties are not put in placethen he will not be released.[50]MISS JONES: As he would not have been in August had that not happened.[51]THE DEPUTY JUDGE: He would not have been anyway, yes.[52]MISS JONES: If I might suggest that firstly your Lordship quashes the order or letter dated 27 August 2010, designated Immigration JudgeAppleyard.[53]THE DEPUTY JUDGE: I am not quite sure what he made. Did he actually make an orderas such? What exactly did he do?[54]MISS JONES: I am not exactly sure. That is why I said order or letter. It is on page 60 and it is a sort of reply. But then it is an order because it quashes the bail decision.[55]THE DEPUTY JUDGE: Thebail decision is therefore void.[56]MISS JONES: I do not know how quite to characterise it.[57]THE DEPUTY JUDGE: I suppose he made an order.[58]MISS JONES: I suppose he did.[59]THE DEPUTY JUDGE: Quash the order of designated Immigration Judge Appleyard made on 26 August 2010.[60]MISS JONES: And that the claimant --[61]THE DEPUTY JUDGE: Claimant is to be released from detention forthwith.[62]MISS JONES: Yes, my Lord.[63]THE DEPUTY JUDGE: On the conditions of bail imposed by the first tier tribunal on 25 August 2010.[64]MR CHAPMAN: My Lord, just a practical issue.[65]THE DEPUTY JUDGE: Yes?[66]MR CHAPMAN: The address to which he was bailed by the first tier tribunal, I think the ordinary way is for such an address to be verified. I think that is right.[67]THE DEPUTY JUDGE: It must have been verified if the order was made. (Overtalking). The more difficult question is whether that is still available.[68]MISS JONES: Yes, it is still available.[69]THE DEPUTY JUDGE: It is.[70]MISS JONES: It is a council tenancy. He lives there with his brother.[71]THE DEPUTY JUDGE: It is still available to him.[72]MISS JONES: So it is still availble.[73]THE DEPUTY JUDGE: It must have been verified for this order to be made.[74]MR CHAPMAN: Yes. The issue, of course, is as your Lordship pointed out.[75]THE DEPUTY JUDGE: Yes, that is the order I am going to make.[76]MISS JONES: The otherwe have sought was a declaration that he has been unlawfully detained.[77]THE DEPUTY JUDGE: Yes. Declaration that the claimant has been unlawfully detained since 26 August 2010.[78]MISS JONES: And I thought it was important to deal first with the issue of release but the claimant's case also includes damages for unlawful detention. That is not as urgent. This case was listed for a period of time to argue the detention part. I do not know whether your Lordship wishes to deal with it today, or what my learned friend thinks.[79]MR CHAPMAN: One of the issues is that there are two defendants in this case. I act only for the Home Secretary but the Justice Secretary is also a defendant unrepresented. It was the Justice Secretary through the immigration tribunal that made the order. I think the ordinary way of dealing claim for damages for unlawful detention is for the parties to be given a period to discuss and then for it to be remitted to the Queens Bench Division for any order. I think that is right.[80]THE DEPUTY JUDGE: I think I can make an order for damages to be assessedor something of that nature. If you do not agree --[81]MR CHAPMAN: Perhaps if not assessed then agreed, yes.[82]THE DEPUTY JUDGE: Yes, it has to be assessed if not agreed with permission to apply for directions.[83]MISS JONES: Given there is no automatic return date, the matter arises of the claimant's costs.[84]THE DEPUTY JUDGE: Yes.[85]MISS JONES: There are the costs to date but there will also be further costs involved in sorting out the matter of damages. Those are not yet known so if I may suggest costs to be assessed if not agreed?[86]THE DEPUTY JUDGE: Yes.[87]MISS JONES: They are not completed yet so an order cannot be made for a specific amount.[88]THE DEPUTY JUDGE: I can only make an order of the costs so far. I cannot make an order for future costs.[89]MISS JONES: No. I do not know what my learned friend thinks about costs. I have not dealt with the damages part of sucha case at all.[90]MR CHAPMAN: I think it should be assessed if not agreed.[91]THE DEPUTY JUDGE: Yes, that would be a normal order. Very often you get to assess here and now if someone produces a statement of costs and I assess them.[92]MISS JONES: We do not have a full schedule.[93]THE DEPUTY JUDGE: You do not have any.[94]MISS JONES: As you might tell from the sequence of documents, this has been a lot of work to do very quickly and costs did not seem a priority.[95]THE DEPUTY JUDGE: Very well. Defendant to pay claimant's costs of the application. Unless agreed, to be assessed on the standard basis.[96]MISS JONES: Thank you, my Lord. I do not think there is anything else arising.[97]MR CHAPMAN: I do not think so, no. Thank you.[98]THE DEPUTY JUDGE: Thank you. Those things have been handed up. I can probably hand them back. (Handed).

Cited in 1 later judgment