Case No: C4/2007/2201
Neutral Citation Number: [2008] EWCA Civ 321
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE BEATSON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 4th March 2008

Before:

LORD JUSTICE TUCKEY
and
LORD JUSTICE SEDLEY
- - - - - - - - - - - - - - - - - - - - -

Between:

	SH (IRAQ)
	Appellant	
	- and -		
	
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr H Southey (instructed by the Refugee Legal Centre) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Tuckey:

1.	These are renewed applications by MH and SH for permission to appeal from the decision of Beatson J made on 9 September 2007, dealing with challenges to their administrative detention under immigration legislation after they had served prison sentences and pending their removal to Iraq.

2.	MH is an Iraqi from Kirkük.  He entered the United Kingdom illegally in March 2003.  His claim for asylum was subsequently rejected.  On 9 November 2005 he was convicted of wounding with intent and sentenced to thirty-three months’ imprisonment, from which he was entitled to be released on 31 July 2006; but he was then detained pending removal and has continued to be so detained until the present time.  A deportation order was made in December 2006.  An application for bail was refused on 10 May 2007.  Beatson J dismissed his challenge to his continuing detention altogether.

3.	SH is an Iraqi from Makhmur.  He entered the United Kingdom in December 2002 when he was granted four years’ leave to remain.  On 26 September 2005 he was convicted of robbery and sentenced to thirty-two months’ imprisonment, from which he was entitled to be released on 30 October 2006; but he was detained after completing this sentence until 3 July 2007 when he was released on bail on the strength of a report from Dr McKee, a consultant psychiatrist, dated 11 April 2007, which said that the applicant was suffering from post-traumatic stress disorder and at risk of completed suicide.  Imprisonment increased this risk and the risk of self-harm.  In his case, Beatson J decided that his detention was unlawful from 4 June 2007.  That was the date on which the Secretary of State had first responded to Dr McKee’s report in a review of SH’s continuing detention.  

4.	The reason the applicants had not been removed to Iraq was the subject of evidence before the judge.  In February 2004 the Home Office had announced its intention to enforce returns to Iraq.  This had been possible in some cases to the north of the country, but the position with Baghdad and the south was as follows: 

“[They] would ordinarily be escorted to their destination; but at present, as a result of advice by the Foreign and Commonwealth Office that its staff cannot fly to Baghdad on scheduled aircraft, the Home Office has taken the view that it cannot ask its escorts to do so.  This is because the Foreign Office advice applies to British nationals and the escorts are British Nationals…the sole obstacle to enforced returns to the south is the concern about safety of escorts.  Arrangements have been made between the British and Iraqi governments for the reception of enforced returnees. The fact that voluntary returns on scheduled flights take place shows that there is a route into southern Iraq.  Nothing is said to suggest that there would be difficulties in using those scheduled services for compulsory returns if the concerns about safety of escorts are removed.  The position therefore is that, since the announcement of an enforced returns programme in 2004, there have been no enforced returns to southern Iraq.  The only impediment is the safety of escorts on the advice of the Foreign Office.”  

5.	The main ground for the claims for judicial review was that the applicant’s detention in those circumstances was unlawful because there was no prospect of the applicant’ removal to Iraq within a reasonable period.  The judge directed    himself in accordance with the decisions of this court   in   R (on the application of I) v SSHD [2002] EWCA Civ 888 and A (Somalia) v SSHD [2007] EWCA Civ 204.  In the latter case Toulson J, at paragraph 43, said: 

 “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 was limited in two fundamental respects.  First, it could be exercised only for the purpose for which the power existed.  Secondly, it may be exercised only during such period as is reasonably necessary for that period. 
The period which was reasonable would depend upon the circumstances of the case.”

Detention will not be justified if, and when, it becomes apparent that the Secretary of State will not be able to enforce a move within such a reasonable period.  The circumstances to be considered include the risk of absconding, the risk of further offending and whether the detainee has refused to return voluntarily.

6.	After considering the evidence to which I have referred the judge appears to have concluded in paragraph 37 of his judgment that there was a realistic prospect of removals to Iraq because all the arrangements were in place and all that was preventing them was the Foreign Office advice.  He reached that conclusion by reference to the decision in A, saying that this decision indicated that it was not difficult to show that there was such a prospect.  After considering the circumstances of each applicant in some detail, the judge concluded at paragraph 40: 

“In the present case there is a significant risk of absconding, but a risk of re-offending which the defendant accepts is not very high.  Leaving aside the second claimant’s mental condition, I would hold that the period of their detention (thirteen months to date for the first claimant, and nine months for the second claimant) is, despite its length, in the circumstances reasonably necessary for the purposes of the deportation order and so lawful.  This degree of risk of absconding in my judgment, together with the claimants’ refusal to go voluntarily, so that detention was a product of their own making, justified the defendant a substantially longer period of time within which to arrange removal [....] It is incumbent on the Secretary of State to keep the position of MH under review both in relation to the risks he poses and in relation to the position of enforcement returns to southern Iraq.”

7.	So far as SH was concerned, the judge rejected the submission that his detention was in any event illegal from the time when the Secretary of State first received Dr McKee’s report.  4 June was the date upon which the judge considered that the Secretary of State should have grappled with the implications of the report, having regard to his policy relating to the detention of people with a history of mental ill health.  

8.	Laws LJ refused permission to appeal on the papers, simply saying that Beatson J was right for the reasons he gave.  Mr Southey for the appellant has maintained his original grounds of appeal in which, put shortly, he contends that there was no basis for the judge to conclude that there was a real prospect of removal in these cases.  So far as MH is concerned, he has now been administratively detained for nineteen months, although Mr Southey accepts that for the first four months of this period the applicant was challenging the making of a deportation order, during which time it would not have been possible to forcefully remove him even if that could have been done.  

9.	Anyway, so far as MH is concerned, Mr Southey submits that there is still no prospect of removal and so, now at least, his detention is illegal.  He relied strongly before us this morning on a recent decision of Mitting J in the case of Bashir, R (on the application of) v SSHD [2007] EWHC (Admin) 3017, who held that detention, or at least detention after a challenge to a deportation order of twenty-three months of an Iraqi with a similar background to that of the applicants in this case, was no longer lawful.  The evidence before Mitting J was the identical evidence to that before Beatson J in these two cases and, in giving his reasons for the decision to which I have referred, Mitting J said that to his mind: 

 “…of great significance there is simply no information before me on which I can conclude that the current suspension of flights into Baghdad will end in the near or even foreseeable future.  I am not judging the lawfulness of a period of detention which is ended; I am judging a period of detention which is still continuing, and I am doing so in circumstances in which there is no indication, let alone any clear indication, when it might end.”

10.	Mitting J referred to the decision in our two cases and contrasted the slightly shorter periods of detention involved and said that each case must depend upon its own facts.  Nevertheless, Mr Southey points out with force that there is a difference in approach to the same evidence as to whether removal was foreseeable.  Since there may be a number of other cases in which similar questions arise this is a case in which this court should take the opportunity of considering what the correct approach to such evidence should be. 

11.	I do not think it would be right to grant permission to appeal simply on the basis of the time which has now elapsed since MH was first detained.  Logically, if the point of no return has now been reached, this should be the subject of a fresh application; but I do think that permission is justified in this case in order for this court to consider, in the light of the evidence that was before both judges, what the proper approach should be.  It is, of course, an intractable problem, as Mitting J recognised.  These cases raise a choice between two unacceptable alternatives: releasing someone who may further offend and may not keep in touch with the Home Office before he can be forcibly removed; and detaining someone administratively for an indefinite period in circumstances where there is not, and never has been, any immediate prospect that he will be removed.  Of course, one answer to this dilemma is that an applicant holds his fate in his own hands because he can choose to return voluntarily, but there are cases where, although that option is open to him, an applicant simply refuses to return voluntarily.  The court has then to ask itself whether, in conscience, it can continue to detain him if there is no light at the end of the tunnel.  That is the sort of problem which this case does raise and I would grant permission in order for this court to grapple with it, with the assistance of argument from the Secretary of State.

12.	But what I have said applies only to MH.  So far as SH is concerned, it seems to me that his detention, to 4 June, as the judge held, can be justified for the reasons which the judge gave and there is no prospect of persuading this court otherwise.  There is a discrete point which Mr Southey has raised on behalf of MH, about whether the judge should have taken some date earlier than 4 June, but he indicated to us that, if we did not think that SH should otherwise have permission to appeal he would not pursue this point further. 

13.	Accordingly, I would grant permission in the case of MH for the reasons I have given, but refuse it in the case of SH.

Lord Justice Sedley:  

14.	I agree.  I would add only that, to my mind, some attention can usefully be devoted on the appeal to the underlying question whether, if there is a right to liberty that arises at some point of administrative detention, it is a right to bail or a right to be discharged entirely from such detention.  

Order:  Application granted in part