Mhlanga, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1587 (Admin)

Case No CO/7124/2011[2012] EWHC 1587 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/06/2012
Before
THE HONOURABLE MR JUSTICE SINGH
Between
THE QUEEN ON THE APPLICATION OF TAWANDA GIBBS MHLANGAClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Stephanie Harrison and Anthony Vaughan (instructed by Leigh Day & Co) for ClaimantColin Thomann (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 20th December 2011
JudgmentThe Honourable Mr. Justice Singh:Introduction
[1]I heard the first part of this claim for judicial review on 20 December 2011. By agreement between the parties, as reflected in paragraph 3 of the agreed directions of 7 November 2011, that hearing was concerned only with the question whether the claimant’s application for mandatory relief, requiring his release from detention, should be granted.[2]The claimant had been in detention since 15 October 2006. Thus by the time of the hearing the claimant had been in detention for over 5 years and 2 months.[3]At the end of the hearing I gave my decision that the claimant should be released from detention subject to certain conditions that I invited the Secretary of State to consider imposing on that release. I indicated that I would give my reasons for that order at the same time as giving my judgment in this case more generally. The adjourned hearing was listed for 13 June 2012. However, that hearing has become unnecessary in the light of a consent order dated 25 May 2012, to which I will return at the end of this judgment. Accordingly, I now set out in brief my reasons for granting the application for the claimant’s release on 20 December 2011.

Factual Background

[4]The claimant, who is a national of Zimbabwe, was born on 23 October 1978. He arrived in the United Kingdom on 10 May 2002 with his sister, Cleopatra Mhlanga. He told an immigration officer at Heathrow airport that he was transiting to Malaysia as an employee of a clothing company. Shortly after his port interview he claimed asylum. He was granted temporary admission and was given a screening interview date for the following day.[5]In fact the claimant decided not to attend that interview. He was listed as an absconder on 11 May 2002. His application for asylum was rejected by virtue of his non-compliance on 22 July 2003.[6]On 20 February 2005 the claimant was arrested on suspicion of wounding with intent to cause grievous bodily harm under section 18 of the Offences Against the Person Act 1861. The claimant had been out drinking with a friend and, on the way home, had become involved in a fight, which resulted in the claimant stabbing his victim in the thigh with a knife, which he said he had picked up shortly before the incident and which he had forgotten was still in his hand when he tackled his victim.[7]On 2 December 2005 he was acquitted by a jury of the charge under section 18. However he was convicted of the lesser offence of unlawful wounding under section 20 of the 1861 Act. He had earlier indicated a willingness to plead guilty to that lesser offence and he was given appropriate credit by the sentencing judge as a result.[8]On 12 January 2006 the claimant was sentenced to 21 months imprisonment. The sentencing judge had before him a pre-sentence report dated 30 December 2005, which assessed the claimant as posing a low likelihood of further offending although he did pose “some potential for harm”. The OASyS report assessed the claimant as posing a medium to low risk. The sentencing judge unsurprisingly regarded the fact that the claimant was carrying a knife as a serious aggravating feature of his offence. However the judge also accepted that the claimant had not intended to use the knife; had not intended to cause the injuries which in fact occurred; was a man of previously good character; and had expressed remorse and contrition for his actions.[9]Following service of a decision to deport the claimant on 12 October 2006 he lodged an appeal against that decision on 18 December 2006. After a hearing before a panel of the then Asylum and Immigration Tribunal on 23 January 2007, the claimant’s appeal was dismissed in a determination promulgated on 29 January 2007. The panel found that the claimant had sought to fabricate an account of events to seek to convince the tribunal that he should not be returned to Zimbabwe but that the claimant was not of any adverse interest to the authorities in Zimbabwe.[10]On 6 February 2007 the claimant’s appeal rights were deemed to have been exhausted. The signed deportation order was served on the claimant on 22 March 2007.[11]On 15 October 2006 the claimant was detained under immigration powers to which I will refer later. On 22 March 2007 the claimant’s detention was maintained on the basis that there was no reliable address for release; no known family to offer support; and the claimant was unlikely to comply with restrictions, as he had previously failed to report back to complete his asylum interview when given temporary admission, so that he was regarded as likely to abscond.[12]In September 2006, the Secretary of State undertook temporarily to defer further involuntary removals of failed asylum seekers to Zimbabwe.[13]At numerous points in time the claimant was offered the option of returning to Zimbabwe voluntarily, for example through the Facilitated Returns Scheme (FRS), which he refused to do. On 10 May 2010 the claimant’s Zimbabwean passport expired.[14]On 14 October 2010 the new Minister for Immigration, Mr Damien Green MP, told Parliament that he was announcing on that day the Government’s intention to end the suspension of enforced returns of failed asylum claimants to Zimbabwe.[15]On 11 March 2011 the claimant was seen in order to complete a bio-data form for an emergency travel document application. He was not happy to complete that form and took it away with him. On 15 April 2011 he was again seen by the UK Border Agency but refused to complete the bio-data form or assist with the emergency travel document process. He stated that he did not want to return to Zimbabwe.

Relevant Legislation

[16]The claimant was detained under paragraph 2(3) of schedule 3 to the Immigration Act 1971, which 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 …”

The Secretary of State’s Evidence

[17]A witness statement has been filed on behalf of the Secretary of State in this case by Anne Scruton, who is the Country Manager Africa 1 of the Country Returns Operations and Strategy team at the UK Border Agency. After referring to the general history in relation to the suspension of enforced removals to Zimbabwe from 2006 to 2010, her witness statement relates that enforced returns were resumed on 6 April 2011, following the determination of the Upper Tribunal in the EM case [2011] UKUT 98 (IAC). At the date of the witness statement (29 November 2011) there had been seven enforced returns of failed asylum claimants to Zimbabwe since April 2011.[18]At para. 7 of her witness statement Ms Scruton says that the Secretary of State developed a list of factors which helped to prioritise which cases to remove first. The fact that a person was a foreign national offender was not one of those factors and the Secretary of State has not yet forcibly returned any foreign national offenders who hold valid passports.[19]At para. 8 of the witness statement it is said that the Secretary of State is not presently in a position to remove persons to Zimbabwe who do not have a valid passport without their consent. This is because the Zimbabwean authorities will not agree to issue emergency travel documents to persons returning involuntarily. Those authorities have agreed to participate in a documentation pilot scheme for a small number of individuals (none of whom are foreign national offenders) who hold recently expired passports and are not willing to return voluntarily. This pilot scheme is contingent upon the ongoing cooperation of the Zimbabwean government, with discussions due to be resumed in early December.[20]At para. 9 of the witness statement it is stated that, as the claimant is a former foreign national offender and failed asylum claimant, he is not a priority for enforced removal. The timing of his return remains subject to the agreement of a scheme with the Zimbabwean authorities for the grant of emergency travel documents for passport expired foreign national offender failed asylum claimants who are unwilling to return voluntarily. The statement concludes that:
“However, as the UKBA’s removal policy in respect of Zimbabwe continues its process of normalisation it is intended that such persons will be returned and the UKBA continues to work towards this outcome.”

Legal Principles

[21]It is a fundamental principle of English law that, in cases where the executive is given power to restrict personal liberty, the court should always “regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on” “: Khawaja v Secretary of State for the Home Department [1984] AC 74, at 122, per Lord Bridge of Harwich. Such an approach is equally applicable to everyone within the jurisdiction of the court, whether or not he is a citizen of the country: see pages 111 to 112, per Lord Scarman. See also Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, at 113-114, per Lord Browne-Wilkinson. As appears from page 114 of Lord Browne-Wilkinson’s opinion, and was common ground before me, the burden of proof lies upon the executive to prove to the court on the balance of probabilities the facts necessary to justify the conclusion that the claimant is lawfully detained.[22]It has long been established that the power to detain a person under the Immigration Act pending deportation is not unlimited. In particular it is subject to implied limitations which were first set out by Woolf J in R v Governor of Durham prison, ex parte Hardial Singh [1984] 1 WLR 704. In what is now the leading authority on the subject, the relevant principles were set out by the majority of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. The judgment for the majority was given by Lord Dyson JSC. At para 22 Lord Dyson said:
“It is common ground that my statement in R(I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles as follows: i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) the deportee may only be detained for a period that is reasonable in all the circumstances; iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.” i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) the deportee may only be detained for a period that is reasonable in all the circumstances; iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”
[23]At para 104 of his judgment Lord Dyson quoted para 48 of his judgment in the earlier case of I where (as Dyson LJ) he had 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 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, that if released, he will commit criminal offences.”
At para 121 of his judgment Lord Dyson stated that:
“The risks of absconding and reoffending 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.”
At para 128 of his judgment Lord Dyson said that the fact that a detained person has refused voluntary return should not be regarded as a “trump card” which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. As Lord Dyson observed, that is because otherwise the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect deportation. At para 144 of his judgment Lord Dyson said that a period of detention of 54 months in the case of Mr Lumba appeared at first sight to be of “unreasonable duration”. Lord Dyson went on to state that:
“There must come a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation.”
In the event the Supreme Court did not in fact decide that Mr Lumba’s detention was unlawful. This was on the basis that it would only be in the most exceptional case that the Supreme Court would embark on a task that is normally to be performed by a court of first instance: see para 147 in the judgment of Lord Dyson.[24]Before leaving the case of Lumba it should be noted that the Supreme Court sat with a panel of nine judges and only Lord Phillips, the President of the Court, took a different view on these principles from that of Lord Dyson.

Application of principles to the Claimant’s case

[25]The claimant’s primary submission was that his detention was unlawful under the third principle in Hardial Singh to which I have referred. In other words it was submitted that the period of detention since October 2006 in this case is already so long that, given the uncertainty as to when, or even if, a return to Zimbabwe will be possible, the Court should now hold that the Secretary of State may no longer lawfully detain this claimant pending deportation.[26]I accept that submission. In view of the factual state of affairs on the evidence before the Court as at 20 December 2011, which I have summarised earlier, I was of the clear view that the Claimant’s detention was unlawful under the third principle in Hardial Singh.

Other issues

[27]Before the adjourned hearing listed for 13 June 2012 took place, the parties agreed a consent order dated 25 May 2012. By that consent order, the Secretary of State has conceded liability in relation to the Claimant’s detention from 1 April 2008 until 20 December 2011 and the Claimant has agreed to withdraw those parts of his claim which assert that his detention before 1 April 2008 was unlawful. The parties are also agreed that the application for judicial review should be stayed and that the Claimant should have liberty to lift the stay if they are unable to reach agreement on the quantum of damages.[28]That course is clearly sensible and will save costs. Accordingly this case will be stayed with liberty to apply as set out in the consent order.

Cited in 2 later judgments