A ruling in February that the continuing detention of one of the thirty-four Iraqi Kurds deported to Baghdad and refused admission to Iraq was unlawful, should benefit others held for deportation for years with no prospect of speedy return.
In October 2009, a charter flight left the UK with forty-four Iraqi deportees on board, bound for Baghdad. The flight, the first for five years, was the culmination of five years’ negotiation with the Iraqi authorities. But the flight returned to the UK with thirty-four Iraqi Kurds still on it, all refused entry to Iraq. The refused Iraqis were returned to detention. A number of them launched legal challenges against their detention. In the lead case, that of Mr A, the High Court judge made a ruling which, although addressing Mr A’s specific situation, will have positive implications for the other detainees.
Mr A, a refused asylum seeker, was being deported after being convicted of various criminal offences. He had been in custody since 2006, for much of that time serving a criminal sentence, and he had been awaiting deportation for 21 months. He had applied for bail many times – he said twenty-one, the Home Office said fourteen – and was always refused. He had initially signed a waiver agreeing to his removal to Baghdad, but then retracted it, saying he wanted to return direct to his hometown Kirkuk (where no flights go). The judge, Justice Langstaff, was not impressed with his evidence, holding there was a real risk that if released he would abscond.
But the judge also found that there was no reasonable prospect that the Kurds would be readmitted to Iraq within any foreseeable timescale. He held that the likely length of the men’s detention was ‘uncertain and very close to arbitrary’. This, he ruled, combined with the possibility of imposing conditions to make absconding less likely, made the continued detention unlawful.
In the course of the judgment, the judge described events leading up to the attempted deportation on 15 October 2009. A memorandum of understanding was signed between the Iraqi and British governments in 2005, under which deportation flights have landed in northern Iraq. A senior Foreign Office official was negotiating returns to Baghdad. The Iraqi authorities were always resistant to taking back Iraqi deportees from the UK, particularly non-Arabs, those without passports, and criminal deportees. The UK Border Agency appears to have pressed on regardless of these problems in its determination to fill a charter flight to Baghdad. Instructions to staff said no ethnic Kurds and no-one from outside central and southern Iraq should be included on the flight, but there weren’t enough to fill the flight, so the instructions were revised – apparently without the agreement of the Iraqi authorities. A final passenger list was not sent to the Iraqi authorities, despite repeated requests, until three days before the flight was due to leave.
Events at Baghdad airport were the subject of reports and documentation which the Home Office did not fully disclose, to Mr A’s lawyers, until after five separate hearings before five separate judges. But the men’s Kurdish ethnicity played a large part in the refusal to admit them. On their return to the UK, all the men were re-detained, although UKBA officials were aware that it would take a significant period of time to get the Iraqi authorities to agree to their return. There had been no further discussion with the Iraqi authorities in the five months between the attempted deportation and the hearing. UKBA’s argument for continuing to detain the men was that otherwise they might abscond, and that they were responsible for their own detention by refusing to go voluntarily.
Emphasising that he was only dealing with one man’s case, the judge nonetheless made important statements of principle which will be applied in other cases, holding that the uncertainty as to when removal could be effected meant that detention was ‘unreasonable and disproportionate’ unless justified by serious risks to the public if the detainee was released.
By Frances Webber: © Institute of Race Relations 1 April 2010
Neutral Citation Number:  EWHC 625 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 19 February 2010
B e f o r e:
MR JUSTICE LANGSTAFF
THE QUEEN ON THE APPLICATION OF AHMED
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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MS H WILLIAMS QC and MR M HENDERSON (instructed by Refugee & Migrant Justice) appeared on behalf of the Claimant
MR JEREMY JOHNSON and MR WAITE (for Judgment) (instructed by Treasury Solicitors) appeared on behalf of the Defendant
MS WILLIAMS: May it please your Lordship. My Lord, before you commence judgment, I wonder if I could just mention to two things very briefly? The first is just for completeness; my learned friend, Mr Waite has handed me this morning a copy of the Court of Appeal’s decision in the Abdi case that was referred to yesterday. My Lord, paragraph 102 strikes use as the only paragraph that is potentially relevant.
MR JUSTICE LANGSTAFF: I had better have a look at that in that case.
MS WILLIAMS: My Lord, we don’t believe it in fact adds anything to the authorities you were shown yesterday, but because it is the most recent statement on the subject, we thought it pertinent to show it to your Lordship before you give judgment.
MR JUSTICE LANGSTAFF: Yes.
MS WILLIAMS: But it essentially says in relation to a refusal to
MR JUSTICE LANGSTAFF: Let me just see what it says, and then you can make your submissions on it.
MS WILLIAMS: Paragraph 102, my Lord.
MR JUSTICE LANGSTAFF: Thank you. (Long pause).
MS WILLIAMS: My Lord, paragraph 102 really deals with two points. Firstly, the refusal to return voluntarily, where, in my respectful submission, it does not add anything to the authorities we cited to yesterday; it simply confirms it is a relevant consideration. Secondly, there is brief reference to the situation where the detainee in question has pursued and appeals and so forth, and in relation to that, with respect, at least we submit it confirms the position that we contended for yesterday, namely that it is only relevant if the period of detention has been increased in consequence.
MR JUSTICE LANGSTAFF: Yes.
MS WILLIAMS: My Lord, as far as we are aware, and obviously I have only had a short time to look at the decision, that is the only paragraph that bears on the issues that your Lordship has to decide.
MR JUSTICE LANGSTAFF: Thank you very much. Mr Waite, is there anything which you would wish to draw my attention to.
MR WAITE: My Lord, no. I agree that the relevant passages are those relating to voluntary return, but it does not change the existing position set out in the case law.
MR JUSTICE LANGSTAFF: Thank you very much.
MR JUSTICE LANGSTAFF:
1. On 15 October 2009, a plane carrying 44 deportees from the United Kingdom landed at Baghdad airport. Shortly after that, it took off again heading back to the United Kingdom with 34 of those deportees on board. They had been refused entry to Iraq at Baghdad airport. An inspector in the United Kingdom Borders Agency who was on board the plane, Nicholas Barton, gave evidence to me that such an event had never happened before in his knowledge or experience. It was the first flight carrying involuntary returnees to Iraq for some five years, if not longer, to Baghdad airport, although there had been successful charter flights carrying involuntary returnees to the area of Iraq controlled by the Kurdistan regional government, the KRG.
2. The claimant was one of those 34 who returned. He was in detention beforehand and has been in detention since. By his claim in this case, which was issued on 2 December 2009, he claims that his detention was unlawful, both to that date and continuing thereafter, and by amended grounds he has claimed to have been assaulted in the course of the flight, causing a minor injury, and has accused the Secretary of State of contempt of court by failing in his obligations to provide appropriate disclosure.
3. By agreement, the only issue for me to determine in this hearing is whether the continuing detention of the claimant is unlawful.
4. Plainly, the circumstances in which the sole flight for five years to Baghdad failed in its mission to return all the deportees on board raises the question whether any future flight is likely to be successful within a reasonable timescale, or whether it is unduly optimistic to think that it might be. That demands an investigation of the circumstances in which the attempt to return deportees by that flight came to the fate I have described, to which I shall return later in this judgment.
5. The starting point, as Mr Johnson who appeared for the Secretary of State reminded me, was that detention is in general unlawful unless it is justified, but detention for the purpose of deportation is lawful because statute authorises it. However, English law has long been jealous of a man’s right to liberty. He may only be deprived of it by the state with good reason within the law, and for no longer than is necessary and proportionate to the object sought to be achieved by that detention. Thus the general principles were set out in the case of Re Hardial Singh  1 Weekly Law Report 704 at 706 D and then Tan Te Lam vs Tai A Chau Detention Centre AC 97 at page 111 A – D. The principles in those cases are well known, but were summarised by Lord Justice Dyson in the case of I vs SSHD  EWCA Civ 888 at paragraph 46 in these terms:
“(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 that reasonable period, he should not seek to exercise the power of detention;
(iv) the Secretary of State should act with all reasonable diligence and expedition to effect removal.”
6. It was recognised as a principle of the law of human rights as it is explained by the European Court of Human Rights in the case of Chahal vs United Kingdom  23 European Human Rights Reports page 413 at paragraph 113 that:
“Any deprivation of liberty … will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5(1)(f). 5(1)(f) provides that that it is possible that the lawful arrest or detention of a person against whom action has been taken with a view to deportation is not a breach of Article 5.”
7. As to these principles there is in this case general agreement between counsel before me. They agree too that every case is necessarily fact specific. I regard this as both important and obvious. If authority were needed, it can found at paragraph 43 in A vs SSHD  EWCA Civ 804 under the heading: “Core principles”, and in other cases besides.
8. The role of the court in the light of those facts has been the subject of decision in the case of Haniel El Sayed Sabaei Yousef vs Home Office  EWHC 1184 by Mr Justice Field, who expressed the view that the question of whether or not detention is lawful is to be judged by the court as a primary decision maker. It is not appropriate for the court simply to review whether it might have fallen within the reasonable scope of decision making by the Secretary of State. That approach was adopted by Mr Justice Wyn Williams in the case of S vs SSHD  EWHC 1654 Admin, a case in which judgment was given on 18 July 2007. Both of those were at first instance, but it is, as it seems to me, beyond doubt that that approach is correct, because of what followed within a fortnight in the judgments of the members of the Court of Appeal in A vs SSHD  AWCA Civil 804. At paragraph 62 Lord Justice Toulson said:
“Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention, and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).”
9. I adopt that approach. Given that the purpose of detention in circumstances such as these is to facilitate deportation, the central questions are inevitably those which were expressed by Mr Justice Mitting in the case of A & Others, which I shall call A & Others to distinguish it from the Court of Appeal case also bearing the name A to which I have just referred. At paragraph 16 he described the two questions that had to be capable of being answered as being:
“Firstly, by when does the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation?”
10. Those questions, however, are posed as though they are capable of precise answer. They may not always be. This, as will be seen, is one case in which there is no precise answer to those questions, but certainly those questions direct attention to the likely length of incarceration pending detention, and an exploration of the facts that might determine whether it will be longer or shorter.
11. In a usual case the fact that a government is taking all reasonable efforts to deport a given person, and has the means to do so, may be decisive in favour of the legality of any incidental detention, for a power to detain is more likely to be reasonable in its exercise in such circumstances than where a government with the same intention may be frustrated by matters over which it has no control. Once the best answers available are obtained to Mr Justice Mitting’s two questions, the determination of whether the continued detention is reasonable or not and lawful or not depends upon evaluation of all the relevant factors. From time to time in the case law which I have been shown, a list of such factors has been drawn up, but it is in my view neither possible nor desirable to be comprehensive. In the case of I at paragraph 48 Lord Justice Dyson said exactly that, but then went on to provide a list of some of the more important factors which appeared to him relevant in that case:
“… in my view they include at least the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing the 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, if released, he will commit criminal offences.”
12. The risk of committing further offences was placed in its proper context by Lord Justice Toulson in the case of A 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. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over simplistic. 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 that deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”
13. Despite the general agreement to most of the principles which I have stated, although there were no significant submissions made by the Secretary of State in respect of the role of the court as I have described it, there is a significant difference of emphasis between counsel as to two issues. The first of those is the significance which the court should accord to the fact that a detainee has, whilst in detention, exercised or sought to exercise rights of appeal, and secondly the extent to which the fact, if it be a fact, that he could take advantage of voluntary repatriation may affect the reasonableness of his detention where he chooses not to do so. Both of these questions, in my view, pose questions of causation. What is the effective cause of the detention and continuing detention of a given claimant? In the case of Q vs the Secretary of State  EWHC 2690, Lord Justice Auld expressed a view to the effect that it was now settled law that generally the date from which the lawfulness falls to be considered is the date on which appeal rights were exhausted. This was picked up by Mr Justice Mitting, who refers to paragraph 20 of Q at paragraph 4 of his decision in A & Others.
14. When Mr Johnson, who appeared for the Secretary of State in this case, also appeared as junior counsel in the case of Abdi  EWHC 1324 before Mr Justice Davis, the submission recorded by the judge as made on behalf of the Secretary of State by his leader Mr Tam QC was that one should entirely exclude as a relevant consideration any period when the individual challenging detention was pursuing an asylum claim or a judicial remedy or appeal in respect of an asserted right not to be removed. However, that principle was expressly said by Mr Tam to be subject to two exceptions: the first looked at the acts of the state, to the effect that it must act with due diligence such that the court hearings in the asylum appeal process would occur within a reasonable time, and the second, relevant here, was where in causative terms the individual remained in detention “not because of any legal or appellate process, but because of some extraneous factor which would itself cause removal to be impossible.”
15. It was impossible on the facts of I itself: in the judgment of Lord Justice Simon Brown, at paragraph 36 and in the judgment of Lord Justice Dyson at paragraph 55, the court accepted in the case of an Afghan detainee who could not be removed forcibly to Afghanistan that:
“The reason why he has not been removed is not because he has been pursuing an asylum claim. It is because the Secretary of State is unable to remove persons to Afghanistan whom he wishes to deport to that country.”
16. In that case therefore, on its particular facts, the making of asylum claims and entering into the appeal process was not regarded as relevant in assessing the length of time for which the detainee had by then been detained with a view to assessing the overall length and hence reasonableness of his detention.
17. I find myself, in the light of this, in agreement with what Mr Justice Davis said at paragraph 25 in Abdi. He observed:
“It seems to me to be undesirable where the core question is an assessment of what is reasonable in all the circumstances, to be astute to look for mandatory restrictions or rules in what one ought, one would have thought, to be a fact specific exercise, with an evaluation tailored to the circumstances of each case … Mr Tam’s argument seems to me to be writing into the operation of the Hardial Singh principles a restriction which has thus far not obviously been invariably applied in other cases.”
18. He proceeded, having made that general statement of principle, to analyse the cases upon which Mr Tam QC had relied and came to the conclusion at paragraph 36 in these terms:
“I do not think that there is any such general and inflexible rule for which Mr Tam argues. I can certainly accept that the fact that a period of detention occurs whilst the applicant is pursuing an appeal or comparable judicial process will always be a highly relevant factor: commonly no doubt in cases where there is also a risk of absconding and/or re offending, it may be decisive one, where the only operative bar to removal is pursuit of the very appeal process. Thus it is most certainly one of the matters, and a very important one, to be taken into account in deciding on the reasonableness of detention. But that is not the same as there being a rule of the kind Mr Tam advances.”
19. As to the significance of a detainee not taking advantage of the possibility of voluntary repatriation which is held open to him, what is submitted to me is that this is a decisive feature, which in the present case I should take significantly or conclusively into account.
20. As to the law, the most recent expression of principle as to this has come today in a judgment in the case of the WL (Congo) and KM (Jamaica) vs SSHD  EWCA Civ 111. In what appears to be the judgment of the court, delivered by Lord Justice Stanley Burnton, it is said at paragraph 102:
“In our judgment, the fact that an FNP [that is a foreign national prisoner] is refusing voluntarily to, 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 (on the application of A). 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, the FNP cannot complain of the prolongation of his detention if it is caused by his own conduct.”
21. It is plain therefore that it is a factor, and a highly relevant factor, if not conclusive, that a detainee has failed to take advantage of the prospect of voluntary repatriation.
22. Against that background of law, I turn now to deal with the facts. I shall deal with these facts under two headings; first, those which are particular to the claimant, and then secondly those facts which relate to the failed landing at Baghdad.
23. The claimant is now still just 22. He has been in detention of one form or another since 26 September 2006, having come to the United Kingdom in January 2005 as a youth of 17. When he came to the UK, he claimed asylum. That claim was rejected. He appealed. His appeal was rejected. His evidence was not believed.
24. On 26 September 2006 he was convicted of offences of possession of a false document, obtaining a pecuniary advantage by deception and obstructing a police constable. He was sentenced to 12 months imprisonment.
25. On 15 March 2007, the Secretary of State for the Home Department made a decision that his deportation would be conducive to the public good. He was provided a right of appeal but did not seek to take advantage of it.
26. He was re detained under immigration powers having been released on criminal bail on 18 September 2007 because he had been charged with an offence of indecent assault. On 9 November 2007 he was convicted and sentenced for two years imprisonment for that offence.
27. The facts alleged by the complainant involved him seeking to have sex with an adult woman. He denied the offence. He gave evidence. His evidence was disbelieved. He was recommended by the court for deportation. His sentence expired, as far as the custodial element was concerned, on 18 May 2008. He was released from prison and then re-detained straight away under immigration powers. He has been detained under those powers since 18 May.
28. During the course of his detention he has made a number of bail applications. The defendant tells me there have been 14; the claimant told me in his evidence he has made 21. All of them have failed.
29. Of particular note during the course of this detention was that in October 2008 he completed a form recording his personal information, known as a bio data form, and signed a disclaimer to enable him to be returned to Baghdad. When, however, removal directions were set and served upon him, he withdrew that disclaimer.
30. On 27 April 2009 he indicated that he was happy to go back to Iraq if he could be sent to Kirkuk, as he believed he would be killed in Baghdad. It is important in his case to note that though he is a Kurd, he comes originally from Kirkuk, and Kirkuk is not part of the KRG. Although he accordingly sought removal to Kirkuk, my understanding is that that could not be effected.
31. On 30 June 2009 there was an explosion in Kirkuk. The claimant says that he heard from his brother, who lives in Holland, that in that explosion (which had killed a number of civilians) his immediate family had been killed. Having heard that, he wished to go back immediately to Kirkuk, and although he did not believe that he would be safe in Baghdad, such was his desperation to return that he indicated that he was willing to go voluntarily through there. He retracted that wish, after only four days, on 8 July. He offered instead to go Sulaimaniya but withdrew that offer. He then offered to be deported to Erbil.
32. He was set to go on a charter flight to the KRG, on a route which would take him through the KRG to Kirkuk. On 18 September 2009, the KRG government refused to accept him on that flight: he was not from the KRG.
33. Accordingly, by mid September 2009 he was a Kurd who was from Kirkuk, who could not be returned to the KRG, because he would not be accepted there, and who felt that he might be in danger if he were to return via Baghdad, and therefore would not consent to that. It does not appear that there was any other obvious route which he could use. In the events which took place he was, on 30 September 2009, determined by the defendant to be suitable for inclusion as an involuntary passenger (whose name would be listed on the passenger manifest) on the flight of 15 October.
The Flight of 15th. October
34. I now turn to the second aspect of the facts, that relating to that flight. Before I do so, I should say simply this. The claimant gave evidence before me. Just as the judges and the jury who have considered his evidence previously, I too would have great caution before accepting anything that he had to say. Two things in particular struck me about his factual evidence, making all just allowance for interpretation, for he speaks Kurdish Sorani and has some but little English. First, in describing why it was that he withdrew his offer to return to Baghdad made in October 2008, he told me that there was no one there for him in Iraq to whom he could return. This does not sit easily with his knowing of a family and being upset by their killing in June 2009, so as to wish instinctively and immnediately to return He explained this, once the point was made clear to him, by saying that he had not heard of his family for some time, despite enquiry. This seems to me to be an inadequate explanation which causes me to doubt it. Second, although in his statement prepared for court he was clear that the date of the killing of his relatives was 30 June – indeed that date ties in with a media report of 1 July about that event – he asserted more than once in his evidence that the date was 30 September. Yet he claimed to be able to remember the exact hour and minute upon which it occurred. His explanation for the error in date, which he accepted it to be, was that he had become muddled or confused, perhaps emotional in the course of his evidence (I am summarising what he told me). I do not find it easy to reconcile a clear recollection of hour and minute on the one hand with an uncertainty about date of an event which he claims to have such significance.
35.Very little in this case depends upon his credibility however, but it has given me pause for considerable concern as to the extent to which I could accept any assurance by him that he would comply completely with any condition which might be imposed upon him as a condition of his release.
36. I turn then to the events which led up to the flight to Baghdad. The background began with a Memorandum Of Understanding signed between the UK and Iraqi governments in January 2005. Under that Memorandum, charter flights containing deportees began, and have continued, to the KRG. They had not, however, taken place to Baghdad prior to October 2009 as far as involuntary deportees were concerned. It is plain to me that the process in arranging for the flight of the 15th. was a long and slow one. Mr Pearce-Higginson, who was the senior civil servant in the Foreign and Commonwealth office who had the responsibility for making the arrangements, told me that he went to Baghdad in March 2009. He there engaged in a meeting which was one and a half hours in length, of which no notes were made (or if they were ever made, they did not survive). That meeting began to pave the way for the flight which was later to occur. However, there was reluctance in Iraq to aspects of the proposed flight. These were elucidated in an e mail of 5 May 2009 (see bundle D6A). In summary it described reluctance to see an increase in returns from Iraqi nationals from the UK to Iraq. The detail of it showed that at that stage proposals were made, intended both to start opening the way for returning Arab Iraqis to Iraq to Baghdad, and to follow up the request by the Kurdish Prime Minister and others that some charter flights returning deportees to the KRG should be rooted through Baghdad.
37. Mr. Pearce-Higginson told me that on 31 August he flew again to Baghdad. On arrival at the airport he met and spoke to the Colonel who was there in charge of immigration through Baghdad international airport. That official expressed resistance to returns which made using EUL letters, that is documentation short of a passport, and assurances were given that any “case” the Iraqi immigration officials were not happy with would be returned to the UK at the expense of the United Kingdom government.
38. The e mail of 1 September, see D7, records the result of an internal meeting in the FCO which gave as the criteria for inclusion in the flight:
“Single adult males preferably with ties to Baghdad or close by.”
39. Some spaces were reserved for “CCD cases”, that is foreign national prisoners. As to those, Mr Pearce Higginson had discussed such cases in principle with the Ministry of the Interior in Baghdad. He had stressed that the numbers of such cases would be low. He was not pressed for further details and did not offer any. He explained to me, and I accept, that as far as the Foreign and Commonwealth Office is concerned, a former prisoner who has served his sentence is free from any criminal restriction on his liberty, and whether he reveals the details of any offence for which he has served his sentence is a matter between him and anyone who chooses to ask. It is not a matter, as far as he is concerned, which the Foreign and Commonwealth Office make any point about. As a matter therefore of principle, such details are not normally supplied.
40. If it be relevant therefore, there seems to me to be little, if any, restriction on the claimant’s return arising out of the fact of his criminal convictions.
41. The criteria for inclusion in the flight were set out by RESCU, the internal department responsible within the Borders Agency for returns and enforcement. It read:
“Selection criteria: Iraqi males aged 18 and over, single, FAS appeal rights exhausted, reporting or in detention, subjects must originate from central or southern Iraq.”
42. Then in bold and in large print:
“CANDIDATES FOR THIS INITIAL CHARTER FLIGHT ARE RESTRICTED TO ETHNIC ARAB IRAQIS FROM CENTRAL OR SOUTHERN IRAQ. KURDISH FROM OUTSIDE OF THE KRG, IE FROM KIRKUK, MOSUL OR MAHKMUR SHOULD BE EXCLUDED.”
43. On 24 September, however, those criteria were widened. It appeared that it was proving difficult to find enough people who filled those criteria to occupy the seats on the charter flight. It was as a result of that widening of the criteria that the claimant, who otherwise would not have fitted them, became eligible for inclusion and was included on the flight. At C, between pages 51 and 55 are a number of e mails which record the changes taking place very shortly before the flight took off. I shall summarise the effect of them. A list of potential passengers had been supplied on the 30 September through the embassy in Baghdad to the Iraqi authorities. It was not a final list. The authorities in Iraq at the Ministry of Interior had apparently not received that list by the end or towards the end of the second week of October. In addition, one problem referred to in those e mails was that the Colonel in charge of immigration at Baghdad airport was refusing to accept citizens who were returning without having Iraqi documents, ie on EUL letters.
44. The possibility of problems at the airport was referred to, and on 12 October the final list was demanded by the Iraqi authorities as a matter of some urgency. The Ministry of Interior was on 12 October referring to a “little obstacle” in terms of the documentation that had to be supplied with each of the deportees. The list was sent. The response was, “We will do our best”.
45. No approval specifically was ever given to the return of this claimant to Iraq.
46. What happened after landing on the Baghdad tarmac was the subject of oral evidence before me. This was because of the unusual procedural history in this case. On 2 December of last year, Mrs Justice Dobbs made an order for disclosure both of information and of documents. Summarising matters, the defendant took what might seem a surprising stance where there had been the only failed return of this sort ever to have occurred, namely that no reasons had been given by the Iraqi government for the return of the prisoners, and that enquiries had to be made of those involved, which would take some time, to see if any documents existed. The matter subsequently came before Mrs Justice Cox, Mr Justice Coulson and last Friday, Mr Justice Burnett. Disclosure came out in dribs and drabs. Mr Justice Coulson contemplated the possibility of oral evidence, and Mr Justice Burnett ordered that witnesses should be available for cross examination. This was plainly appropriate, as I held giving further directions on Tuesday of this week, because it seemed to me that the witness statements might not reveal fully the events that had taken place and the reasoning behind them, Therefore in order to inform the court fully and properly of what had taken place, with a view to assessing the chances of a further charter flight containing the claimant taking off within the reasonable future, it was necessary to hear what those involved in this abortive flight had to say. In the event, matters have become, in my view, a lot clearer as a result, though not fully clear.
47. Summarising the effect of the evidence before me, the plane arrived around 10 o’clock. It was met by the Colonel at the airport. He was antagonistic from the outset. What appears to have caused this antagonism was firstly his difficulty in reconciling the number of returnees on the flight with the details of those he had been told internally would be arriving. That may be a consequence of the late delivery of the passenger manifest. It may be a problem in communication within the Iraqi government. He then noticed, having asked that all the deportees be taken off the plane, that a number appeared to him to be ethnic Kurds. He asked why it was that he had been sent ethnic Kurds. It was plain that he was seeking to object to them on that basis. The 44 deportees were taken to the airport building by bus and about half an hour later were returned to the plane, save nine who had been kept in the airport building. Of the 35 who remained, the Colonel made the point that they did not have proper documentation. That was not true of all – and of those who remained in the airport building, accepted by the Iraqi government through the Colonel, five had full documentation, but two did not. Of those who were rejected by him, one or two had full documentation. He addressed the deportees in Arabic, I accept from the claimant, although I have to say that the claimant’s recollection was suspect (he had thought when he first gave evidence that this address had taken place without the deportees ever having moved to the airport building and back, and only later, when his memory no doubt was prompted by the witness statements of others, accepted that he had indeed first been to the airport building). The Colonel indicated that he thought that Kurds would be at physical risk in Baghdad, and he was not himself prepared to accept the responsibility for the consequences if that risk materialised. A process of negotiation began, in the course of which the Colonel was persuaded by one of the deportees to accept him too. The others, largely Kurds but not entirely so, were re-embarked.
48. A point arose in evidence as to whether those on board the plane, who consisted now of security guards, more than double the number of the deportees, together with two officials from the UKBA from both of whom I have heard, and Mr Pearce Higginson, together with the cabin crew, feared that they might be detained in the sense of being arrested and kept in Baghdad. I am satisfied, having considered the evidence of Mr Barton, that he, who had used that word “detained” in a note shortly after the event, meant it purely in the temporal sense, and did not mean to imply that he had any fear of actual arrest. It was, however, necessary, in terms of time, for the plane to take off quickly, because otherwise the aircraft crew would be out of hours, unable to fly and overnight accommodation with all the attendant difficulties would have to be arranged in Baghdad.
49. The flight went back to the United Kingdom via Verona.
50. From this history emerge these reasons for refusal. First and generally was reluctance in some quarters in Iraq to accept any returnees; secondly, an insistence upon full documentation and a distrust of EUL letters; thirdly – and significantly, because in my view this featured persistently throughout the evidence which I have heard -a dislike of acceptance at Baghdad of those who were of Kurdish ethnicity.
51. The consequence of what had happened was naturally that upon what is called “wash up”, the defendant sought to learn the lessons for the future as to what had occurred.
52. In an e mail of 5 November 2009, see C56, it was reported by the embassy in Baghdad that the General from the Ministry Of the Interior with whom contact had been made prior to the flight, had said that it was regrettable that he and his staff had not been present at the airport to meet the returns charter. That is something which the embassy had been assured would happen to ensure that things went smoothly, and it did not. It appears from that e mail that there was some welcome discussion about the possibility that a representative of the Ministry of the Interior from Iraq would subsequently come to the United Kingdom to gain a better understanding of the process which the Defendant uses to determine who should be returned and in what circumstances.
53. At the “wash up”, matters were summarised in these terms, see D27:
“A critical review of the operation has established lessons learnt and next steps.”
. They are set out in some detail:
“To mitigate the risk of non cooperation with future flights … ”
Then there follows a list of five matters:
“(i) UKBA will offer a visit programme for key Iraqi officials in advance of the next flight to secure buy in to the charter.
“(ii) FCO is seeking to obtain a letter from the Iraqi PM’s office detailing support from the UK’s enforced returns programme.”
I interpose to say in evidence it was accepted that is an overstatement. They had not by then and have not yet sought such a letter.
“(iii) the FCO will review, engage and update on actions with key Iraqi personnel in the lead up to the next flight.
“(iv) We are engaging with EU partners to identify and learn from their returns processes to Iraq.”
I interpose, the Danes in particular have had a number of successful charters of detainees to Iraq.
“(v) a ministerial visit may be proposed to reiterate the level of importance the UK places on enforced returns to Iraq.”
54. The visit program which was to be offered to those from Iraq was the subject of a diplomatic note issued on 15 November 2009 setting out a vision, see C58 and 59. The note expresses the hope that:
“The Government of Iraq can identify some suitable delegates for such a visit, and would be happy to explore dates for a possible visit at the earliest opportunity.”
55. I was told the identification of such delegates is ongoing. One so as far as has been identified from one of the ministries, but not the other three or more anticipated delegates. No date is yet set for the visit. It cannot be before the Iraqi election which takes place in early March this year, and this has given rise to the comment by Ms Williams, who appears for the claimant, that the first step of the five identified on the wash up has not yet been taken, let alone the later ones.
56. Against this background and in these unusual circumstances, I now turn to consider the legality of continued detention.
57. The claimant has been in custody since 2006, but I ignore all the period of time prior to May 2008, save only as background context, because before that date he was in custody almost all the time in consequence of his own criminal actions. May 2008 was 21 months ago. Mr Justice Mitting has suggested, in determining that the period he was looking at was unreasonably long, that a period of 23 months would be towards the top of the scale. In my view, I do not think it possible, in this context, to set timescales. That would to be to impose false parameters upon a decision which is essentially evaluative. But it is plain that 21 months is a long period of time. I regard the period of time in which this claimant was involved in appeals or the like as having very limited effect overall upon the length of his detention. I shall return, however, to the question of the availability of the voluntary repatriation.
58. The detention has had some psychiatric effects upon him. Dr Christopher Muller Pollard diagnosed him on 27 January this year as suffering from a moderate depressive episode, which he, the claimant, attributed to his detention. The doctor thought that if released he would expect the depression to improve, and if he were further detained to worsen. I have to make proper allowance here for the fact that inevitably a psychiatrist relies heavily upon what he is told by the individual, and I have indicated the caution that must be applied.
59. There have been, through this period of detention, attempts to remove the claimant, both by securing his consent to voluntary repatriation on more than one occasion, and also by the unusual circumstance in a case such as this of his actually being deported but not effectively landed. He cannot return through the KRG controlled area because the KRG will not accept him. The safety of Baghdad is, he would say, open to question, but he has on occasion indicated a willingness to go there and then subsequently retracted it.
60. Critical in my determination has to be a view as to the likely timescale for the next charter flight of involuntary returnees to Baghdad. Here the history would suggest it is likely to be some considerable time away, because it has taken some four years since the Memorandum Of Understanding, very nearly five, before the first such flight under it to Baghdad, and that had to be preceded by meetings in March, July and September. Since October there has been no further attempt to engage in that sort of discussion.
61. Against that background, in the circumstances which I have heard evidence about, I have to form a view as to whether the defendant’s undoubted desire on good grounds to deport the claimant will come to fruition. It is unlikely, in my view, to happen soon and it is not contended that it will. It is unlikely, in my view, to occur in the medium term, and is not contended directly that it will. When asked to provide a timescale, the defendant merely says “within a reasonable time”. It is in many respects speculative, but I have to form the best assessment I can of the broad timescale before there will be any flight again to Baghdad, and more importantly in this case, whether this claimant is likely to be a passenger on that flight. Since the feature which most told against the 34 deportees being accepted in Iraq was Kurdish ethnicity, and a second feature, difficulty with documentation, this would argue that the claimant is unlikely to be an early passenger. However, the priority which the government places upon returning foreign national prisoners tells in the other direction, as does the fact that the claimant himself was high on the list for return as demonstrated by the fact that he was included in the flight in October.
62. On this evidence, taken as a whole, I cannot, it seems to me, have any reasonable assurance that the flight would at the earliest occur before the end of this calendar year. Even that is uncertain, and the probable date is likely to be later. The length of the detention, if it extends for that period, is thus uncertain and very close to arbitrary.
63. When I turn to consider the question of continued detention, I note that in pursuance of one of the orders of the court the defendant was required to indicate whether he would admit the claimant to bail, and he had to do so by 19 January this year. He gave that indication. He said he would give bail. It was just after that, however, that he had second thoughts and withdrew the offer. This has given rise to the comment, which may be right, by Ms Williams that it must have been a close run thing given the view, whatever it was, that the Secretary of State then took as to the likelihood of flights returning to Iraq, and therefore the length of detention to which, if not released, the claimant would otherwise be subject.
64. Against detention for the uncertain length of time which I have identified being held unreasonable and disproportionate, I must place the risk of absconding and the likelihood of further offences. Absconding is liable to defeat the whole purpose of deportation. The claimant has indicated clearly that he does not wish to be compulsory repatriated to Iraq. He has no strong community link in this country. I have expressed already my uncertainties about him. I regard the risk of his absconding as significant. He is someone who in the course of his stay thus far has already failed in his reporting obligations. He explains that away, but it is nonetheless a fact. There is, it seems to me, also a risk that he will engage in further crime. He has, for most of his short stay in this country, been in prison in consequence of two separate sets of criminal activity. However, this must be seen in proper focus. He is not a criminal of the sort who has featured in some decided cases, not, like Mr Chahal, a suspected terrorist, nor like Mr A, someone who was guilty of rape, nor was he guilty of violent robbery which also features in the case law. He is not, in my view, someone who would simply take any step to avoid being deported, nor is he, in my view, someone who poses a risk of the same order as has been identified in the cases to which I have referred.
65. One of the questions of principle which arises is whether, if I were to determine that continued detention is unlawful as being an unreasonable exercise of the powers of the Secretary of State, the consequence would be that the claimant would be released without conditions. Neither counsel seeks to suggest that this is required. Both accept that the issue of principle has not frontally been addressed in any case previously, though I note that some, witness the decision of Mr Justice Mitting, for example, in the case of Bashir, at paragraph 23, have exercised a power to impose conditions having determined further detention to be unlawful without discussing whether it is correct in principle to do so. In the light of the agreement of counsel, it might perhaps be unnecessary for me to put the issue as one of principle, but if principle were needed, it would seem to me that the essential matter is to ask whether continued detention can be justified if there are available conditions of release which will provide a proportionate measure of security against the risk of absconding, which is the central risk in this case otherwise preventing release, where it might be justified if those conditions were not to be imposed.
66. Having considered the factors that I have mentioned, taking into account not least the prospects there have been and still are of voluntarily repatriation, and holding them heavily in favour of the reasonableness of continued detention, nonetheless I am satisfied that whilst I do assert that in no circumstances could detention of 21 months and continuing be justified, I hold on the particular facts of this particular case that this claimant’s detention would, if it were to continue, be unlawful. I say nothing about whether his detention thus far has or has not been lawful. I say nothing, I emphasise, about the position, whatever it may be, of others who may have been on the flight to Iraq and who have now returned. This decision is necessarily specific to this claimant’s case. But I reach the conclusion upon the basis that the detention is already long and is likely to become very long, upon my best estimate, imperfect though it is, of when it may be that forcible return will be available. I take into account the limited prospects of voluntary return. Secondly, I take into account the fact that release will not, in my view, expose the public to a grave risk of harm, though there will plainly be some risk. Thirdly, although he is rootless in the United Kingdom, there must be a significant risk that he will abscond, but this risk can, in these circumstances, be met by appropriately restrictive conditions. On that basis, it seems to me that provided that there are conditions of reporting – I would envisage reporting daily at a particular police station to be nominated and an hour to be specified – electronic tagging, the acceptance of Jermal Jermad as a surety in the sum of £200, and that there be residence at an address to be notified, in respect of which it is to be understood that any change or proposed change of address must be notified to the police and to the UK Borders Agency at least seven days before it is thought likely to occur, then on those conditions, but only on those conditions, I think that it would be proportionate to release this claimant, and it would be disproprotionate, unreasonable and therefore unlawful for his continued detention to go on. To that extent, but to that extent only, this claim succeeds.
POST JUDGMENT DISCUSSION
MS WILLIAMS: My Lord, I am grateful. Just before your Lordship came in at 10.30, my learned friend Mr Waite was indicating to me that if your Lordship would minded to make an order in those terms, it would take until Wednesday
MR WAITE: The best estimate is that in order to find him accommodation, and then put in place the electronic tagging which needs to be installed in that accommodation, is that it would take by close of play on Wednesday to do that. The accommodation, the actual process is an application is made by the claimant, and I understand that has already been done, and so a decision can be made on that quickly.
MR JUSTICE LANGSTAFF: I am certainly not going to make any order to the effect that release is to be effected before those steps are in place. As I hope I made very clear, detention, without there being that alternative, is reasonable, with that alternative it is not. Therefore, it must be in place beforehand, and it seems to me reasonable efforts should be taken.
MS WILLIAMS: Yes, I wonder if your Lordship would consider it appropriate to direct that those efforts be made with reasonable expedition, because whilst we are hopeful it will done by Thursday, obviously there is little protection for the claimant
MR JUSTICE LANGSTAFF: What I think is simply is this; I give two weeks to the Secretary of State to secure arrangements for release, but liberty to apply if there is any difficulty, to either party.
MR WAITE: Yes, my Lord. There is one further condition the defendant seeks, which is that the claimant is not permitted to engage in any employment or profession paid or unpaid. The reason, as I understand it, is that if he sought to do so, that might conflict with a duty to report on a daily basis. My Lord, that is an additional condition.
MR JUSTICE LANGSTAFF: That may depend on when the reporting is, might it not?
MR WAITE: Yes. My Lord, I think I can leave it. I think the defendant has the right to do it anyway, to impose that condition anyway, so I think your Lordship does not worry about that.
MR JUSTICE LANGSTAFF: Thank you very much.
MR WAITE: My Lord, there is the further question of past detention in this case. I am not sure, in the light of your Lordship’s judgment, whether the claimant is pursuing a claim
MR JUSTICE LANGSTAFF: Well, the claimant will have to consider what I have said, and that is an entirely a matter for the claimant.
MS WILLIAMS: Indeed. My Lord, our respectful suggestion would be that that aspect of the matter for now should be generally adjourned. The claimant will reflect upon that position. If it is wished to pursue that a contention that detention has been unlawful for a period and an associated right to damages, that would be conveyed to the defendant, and obviously in the first instance, it may be possible to reach agreement if it is not a matter
MR JUSTICE LANGSTAFF: I think perhaps the defendant might be entitled to say that this should not be open ended.
MS WILLIAMS: I entirely accept that, my Lord. I was not suggesting it would be.
MR JUSTICE LANGSTAFF: I am content for you to put your heads together. I will rise for a moment or two, and let me know within what period of time you think that you would make a decision.
MS WILLIAMS: My Lord, I would be grateful if I could have a moment to take instructions in relation to that matter.
MR JUSTICE LANGSTAFF: Yes, of course. I will rise for five minutes.
(A short break)
MS WILLIAMS: Thank you, my Lord, we are very grateful for that additional time. In relation to the outstanding claims, which to be clear, my Lord, is both the claim for past unlawful detention and associated compensation sought for, and the Article 3/assault and battery claim, we propose, if your Lordship finds this acceptable, and I understand my learned friend agrees with it, to indicate to the defendant and the court within 28 days, the claimant’s position in relation to those claims and proposals as to any appropriate future directions.
MR JUSTICE LANGSTAFF: Yes.
MS WILLIAMS: My Lord, both parties would also respectfully suggest, if it was a course that commended it to your Lordship, that if you were able to reserve the matter yourself that may or may not be practical, apart from anything else, but it would save a lot of time, given your Lordship’s familiarity with all the relevant issues.
MR JUSTICE LANGSTAFF: Well, I think all I should do is simply say that I plainly have familiarity with the facts of the case and some of the principal actors in it, so it would be convenient, but I don’t think it is essential, to be listed in front of me.
MS WILLIAMS: We simply put it forward as a suggestion.
MR JUSTICE LANGSTAFF: The reason I am saying that is you may mention that to any relevant listing officer at the time. It is in the nature perhaps more of a part heard claim in the QBD.
MS WILLIAMS: That may be one of the courses sought in indeed.
MR JUSTICE LANGSTAFF: So I don’t want to enter into giving, as it were, effectively listings directions reserving it to myself. But if you wish, on reflection, to take advantage of the additional speed there would be if it were to come back to me, if that suits listing, fine.
MS WILLIAMS: My Lord, we would be very grateful I take your Lordship is content for the outstanding claims to be dealt with on that basis?
MR JUSTICE LANGSTAFF: Yes.
MS WILLIAMS: My Lord, there is then the question of costs. Both parties, albeit for different reasons, draw a distinction between the costs relating to the merits of the claim of current unlawful detention, and costs associated with the procedural history. In relation to the former, the substantive claim that you have ruled on today in relation to continuing unlawful detention, that is a matter in respect of which we submit the claimant is entitled to his costs, costs following the normal event. I am not sure that the defendant disagrees with that position.
In relation to the cost of procedural history, my Lord, you may have seen from the opening paragraphs of the claimant’s skeleton submitted earlier this week, that whilst the application for contempt of court is not pursued, it is proposed to make an application for indemnity costs in relation to what we described as the lamentable history of disclosure. I have been told today by Mr Waite that the defendant wishes to make a counter application in relation to costs, asserting, as I understand it, in essence that some steps taken by the claimant’s advisers were unnecessary. My Lord, that being the case, it probably unrealistic to rule on that matter today, although we are, to an extent, in your Lordship’s hands. I can address you on indemnity costs now if that would commend itself to your Lordship.
MR JUSTICE LANGSTAFF: Mr Waite, what would be convenient? I appreciate you hold Mr Johnson’s brief again.
MR WAITE: My Lord, I think it is a matter that the defendant would wish to make quite detailed submissions on, really taking your Lordship through the chronology quite carefully, and pointing out what was disclosed and when. So I think the defendant’s preference would be to put in detailed written submissions to your Lordship in relation to that question. But, my Lord, I think that can be done within 14 days. I mean my solicitors indicate that perhaps the appropriate course would be for the claimant to put in their submissions first, because they are seeking indemnity costs and then defendant to respond.
MR JUSTICE LANGSTAFF: Yes. Ms Williams, it seems to me appropriate in the first place that you should set out in writing your claim, the basis for it, and then the defendant should have a chance to respond, and you have a chance, having considered that response, to reply if you think that appropriate.
MS WILLIAMS: Yes, my Lord. Thank you.
MR JUSTICE LANGSTAFF: At that stage, either party may indicate that they would wish to have oral argument. If they do not, then will you kindly indicate that you are content for the matter to be resolved from the papers. It is cheaper and perhaps quicker.
MS WILLIAMS: Indeed, my Lord.
MR JUSTICE LANGSTAFF: But it is entirely up to you. I will list an oral argument, given the nature of the dispute, if necessary.
MS WILLIAMS: My Lord, I am very grateful for that. That seems, if I may say so, a very sensible way of dealing with it. Could we have 14 days to make our written submissions?
MR JUSTICE LANGSTAFF: Yes.
MS WILLIAMS: I would imagine my learned friend would want 14 days to respond.
MR JUSTICE LANGSTAFF: Where are we now? We don’t have any risk of getting into Easter, do we? We should be okay. So the dates; by no later than 5 March, written submissions from the claimant no later than 19 March from the defendant, and if you can respond by 31 March.
MS WILLIAMS: 31 March, my Lord?
MR JUSTICE LANGSTAFF: It is the last day of term.
MS WILLIAMS: Yes, thank you.
MR JUSTICE LANGSTAFF: You will find that I am on leave after Easter for a few weeks, so don’t expect a speedy response. I am sorry about that, but there you are.
MS WILLIAMS: My Lord, I am grateful. The other matter in relation to costs, in case it be necessary as well, is if your Lordship could direct that there be a detailed assessment of the claimant’s publicly funded costs.
MR JUSTICE LANGSTAFF: Yes, very well. Just so it is clear; costs of this application for today to be paid by the defendant to the claimant. By today, I include of course yesterday. The other costs, the application in respect of other costs, will be dealt with as we have outlined.
MS WILLIAMS: Can I just clarify something, your Lordship expressed it as costs of today. I think the dichotomy that I had agreed with my learned friend, Mr Waite, was that the costs order that we were seeking today was the costs occasioned by the claim for unlawful detention.
MR JUSTICE LANGSTAFF: That seems to me a better wording, but you did say costs for today when you addressed me.
MS WILLIAMS: I am sorry, my Lord. To distinguish that between the costs of the disclosure applications
MR JUSTICE LANGSTAFF: Absolutely. Well, I was a bit surprised when you put it the way you did.
MS WILLIAMS: I am sorry, my Lord, if I didn’t make that clear.
MR JUSTICE LANGSTAFF: That seems entirely right, Mr Waite, does it not?
MR WAITE: Yes, the costs occasioned by the claim that the current detention is unlawful, that is way I would express it.
MR JUSTICE LANGSTAFF: The continuing detention is unlawful.
MR WAITE: Yes, my Lord.
MS WILLIAMS: Thank you, my Lord. I am very grateful.
MR JUSTICE LANGSTAFF: Thank you both. Thank you, Mr Waite, for being present for service yet again.
MR WAITE: Yes.
MR JUSTICE LANGSTAFF: To what extent will it be necessary for me to retain the papers for the purpose of dealing with the costs issue?
MS WILLIAMS: Well, my Lord, it is not going to be necessary for you retain matters such as a legal authorities, unless it is useful for you to do so, but I can see it may be valuable to retain the other papers, because unfortunately, because the way bundles were done, most of the correspondence is in volume 2. I think some of the material documents are in volume 1. It may be simpler if your Lordship keeps the bundles.
MR JUSTICE LANGSTAFF: Very well. Thank you very much.