The Outer Limit

Source: Free Movement

The Court of Appeal recently gave judgment in the case of R (on the application of Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, a challenge by a Somali national to his detention under administrative immigration powers for the extraordinary period of 41 months, or three and a half years.

The first line of the judgment is striking:

This is yet another case concerning the lawfulness of immigration detention.

It is capable of being read as a lament that so much court time is being wasted with such trivial guff. As Nick Armstrong of Matrix Chambers commented, there would not be so many such cases if there was not so much unlawful detention going on.

The Claimant was convicted of a serious offence of robbery in 2001 but then afterwards committed offences of less gravity, leading to his description as a ‘chaotic recidivist’ by Richards LJ in the judgment. He was detained under immigration powers from 8 February 2008, his appeal rights were fairly rapidly exhausted on 8 July 2008 and his removal was belatedly scheduled for 17 June 2009. However, removal was cancelled the day before due to a Rule 39 indication from Strasbourg pending the outcome of a test case on Somalia.  The Claimant was eventually released on bail on 13 July 2011, some two weeks after the Strasbourg case of Sufi and Elmi was handed down on 28 June 2011.

Sufi and Elmi took far longer to decide than had been hoped by all concerned, as described in R (AR) v Secretary of State for the Home Department [2011] EWCA Civ 857.

On behalf of the Claimant it was argued that detention from the time of the Rule 39 indication was unlawful because from that time detention was in breach of Hardial Singh lawfulness principles. This submission was rejected:

At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did.

Thus the novel finesse on Hardial Singh of a ‘realistic prospect of reasonableness’ is introduced into the sorry cannon of case law upholding obscene lengths of administrative detention.

Richards LJ goes on to reject the proposition that for a removal to be reasonable there must be an identifiable timescale within which removal can take place.

There follows a classic piece of judicial hand wringing:

In any event, I can see no reason for differing from the overall conclusion reached by the deputy judge after careful consideration of all the relevant factors. The period of detention in question was very long – by the time of the ECtHR’s judgment in Sufi and Elmi it was approaching 41 months. Immigration detention of that length is a matter of great concern and it seems to me that the period was near the outer limit of what could be justified in the circumstances of this case. But I do not think that the deputy judge was wrong to conclude that the outer limit had not been exceeded.

Regular readers of unlawful detention cases will be aware that this outer limit is a mirage, forever fading away just before it is reached. Judges seem increasingly unwilling to say ‘enough is enough’, perhaps because of the volume of these claims and for fear of the precedent it would set. The effect is that periods of unlawful detention just get longer and longer and will continue to do so. The argument against having a statutory limit on detention has always been that the authorities would routinely detain up to that limit. The situation can hardly get worse than it is, though.

Returning to the judgment, on the question of whether the 15 days between Sufi and Elmi being handed down and the claimant being granted bail was lawful and reasonable, Richards LJ comes perilously close to holding that there is no need to review detention between monthly detention reviews. Thankfully, this is not a view endorsed in Elias LJ’s short dissenting judgment and even Lloyd LJ’s assenting judgment does not go so far. It is also noteworthy that the fact that the Secretary of State would plainly have continued to detain for a longer period given that release was only secured through a contested bail hearing was apparently irrelevant.

Richards LJ also rejected the arguably bold contention that the failure to make enquiries of Strasbourg to ascertain a potential end date to Sufi and Elmi amounted to a public law error and rejected the submission that detention was rendered unlawful by being justified with reference to the possibility of ‘self deportation’ to Somalia. Although the latter would amount to an error, it was not proven in the current case, it was merely that ‘some of the passages in the detention reviews are not very happily expressed’.

Lastly of note is the comment by Richards LJ at para 41 that ‘comparison with the particular outcome in other cases is unlikely to be a useful exercise in this highly fact-sensitive area’ and then at para 76, when seeking to distinguish a case, that anyway ‘the case itself is factually far removed from the present’. Some sort of award is surely due.

The judgment is a disaster for those opposed to the extreme lengths of administrative detention that routinely exceed criminal sentences for serious crimes. The ultimate deterrent in our society, the deprivation of liberty, is cheaper by the day.

Related posts:

1. Five years of immigration detention ruled unlawful
2. More unlawful detention cases
3. Presumption to detain declared unlawful

More Tribunal Hearings

Source: Free Movement

Another case comes along

Another series of reported cases has been handed down by the Upper Tribunal. Official headnotes and links to the BAILII judgments are included below. I’ve also thrown in another couple of cases that slipped out since the last big batch.

We have two Country Guideline cases. The first, ST,  is on Eritrean/Ethiopian nationality issues and deprivation of nationality as persecution. The second is MT, a profoundly important case for Ahmadis from Pakistan that finally updates country guidance to reflect the Supreme Court judgments in HJ. In short, if an Ahmadi would behave discreetly in order to avoid persecution, for example by only proselytising to perceived safe individuals, then he or she is entitled to asylum.

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Strasbourg allows Somali test case

Source: Free Movement

The cases of Sufi and Elmi v UK (Applications nos. 8319/07 and 11449/07) have been allowed by the European Court of Human Rights. This is a major judgment on return to Somalia and the conditions there. The press release can be found here and the judgment here (Word version here, BAILII version here).

In summary, the Court holds that conditions in Mogadishu breach Article 3 for virtually everyone, although there might conceivably be some people with high level connections that would be safe (para 250). For most, and certainly for those who have been outside Somalia for a long time, return to Mogadishu is therefore unsafe.

The Court also finds that it might be possible for a returnee to relocate to another, safer part of Somalia from the airport (para 271). This depends on the area, and the Court was not able to make findings on every bit of Somalia. Evidence will therefore be required in individual cases. However, the Court then goes on to eliminate the possibility of relocating for many individuals by finding that any returnee who has been outside Somalia for a long time cannot relocate to (or through) areas controlled by the al Shabaab group (para 277). Al Shabaab control large areas of Somalia.

The Court holds that conditions in refugee and Internally Displaced Person (IDP) camps are in breach of Article 3 and it is therefore not possible to return a person who would have to relocate to such a camp. The approach of the Court in MSS v Belgium and Greece is preferred in this context to that in N v UK because the situation arises from the actions of parties to the conflict in Somalia, not from simple lack of resources (para 283).

Interesting other findings include that a fresh claim was an inadequate alternative remedy for the claimants in this case (para 207-08), that the failure to apply for reconsideration in one of the cases, on legal advice, did not mean that that claimant had failed to exhaust all domestic remedies (para 209), that the report of the fact finding mission to Kenya is worthless because it is impossible to evaluate the quality or reliability of the sources used (para 234), and that Article 3 of the ECHR broadly incorporates the type of harm envisaged by Article 15(c) of the EU’s Qualification Directive (para 226).

This latter finding is interesting and perhaps problematic for the future, given that in the Qualification Directive cases advocates have argued that Article 15(c) must add something to Article 3 ECHR otherwise it is redundant. Article 15(b) specifically incorporates the language of Article 3 ECHR, so what would be the purpose of the additional language of Article 15(c)? It seems unlikely to happen in practice but there is a possibility of a ‘virtuous circle’ (depending on one’s standpoint, of course) of constantly improving standards of protection, as Article 15(c) QD is argued to be more generous than Article 3 ECHR, then Article 3 ECHR catches up, then Article 15(c) QD becomes more generous again and so on.

Both claimants succeeded in this case on their individual facts.

Lord Chief Justice reprimands judge for ‘immigration tirade’

By Ben Schofield

A LIVERPOOL judge who launched a tirade against the Government’s immigration policy was reprimanded yesterday. Read more

Same day removals condemned

Free Movement – Further to my alerter post on this last month, the judgment is now available in the damning Third Country removals case on children. It is called R (on the application of T) v Secretary of State for the Home Department [2010] EWHC 435 (Admin).

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How should we tackle failed asylum seekers?

By Carl Gardner

Shifting goal posts

Free Movement

The Home Office do like to shift the goal posts. Sometimes this is because they lost another legal case and want to get around it, sometimes it appears to be for no reason at all and sometimes, just sometimes, it seems to be for clearly explained and understandable policy reasons.

The increase in the residence requirement for settlement was an understandable policy change. Previously immigrants needed to complete at least four years before being eligible for settlement, but in 2005 the Home Office re-wrote the rules and required everyone to complete at least five years.

Many immigrants were understandably upset by this, particularly those who were nearing the end of the four year qualifying period, whose leave ran out at that time and who suddenly needed to make very expensive immigration applications for a further year of leave to remain. Those with families who had to pay the additional fees for family members were no doubt furious. As usual, the Home Office failed to make any sensible transitional arrangements, such as waiving fees, only applying the policy to new entrants to the UK or similar.

Worse, though, some immigrants who had been specifically told they would be eligible for settlement after four years were also required to pay the aditional fees and complete the additional year. Some of those immigrants, represented by the HSMP Forum, just won their second case against the Home Office on this issue of shifting goalposts. Good on them.

The Home Office have announced that they are “currently looking into implementing the court’s decision”. Do not hold your breath. We had to wait months for the Home Office to consider their position after Metock and are STILL waiting for them to implement Baiai, in which the House of Lords held the marriage policy to be discriminatory and unlawful. The Gurhkas recently won another High Court hearing in which a judge held that the Home Secretary’s failure to implement an earlier judgment was itself unlawful – and in the meantime at least one of the potential beneficiaries of the case had tragically died.

The Home Office’s disregard for the rule of law is a disgrace.