Detention of man suspected of insurgency and terrorism was unlawful

27 May 2010 by

HXA v Home Office (King J) [2010] EWHC 1177 (QB) – Read judgment or our full case comment

The authorities’ statutory power to detain pending deportation had to be motivated purely by the need to remove a subject from the United Kingdom, not to ensure his surrender into custody of the authorities operating in the receiving country. A subject detained not only for the purpose of effecting his removal from the UK, but also for the purpose of investigating whether acceptable arrangements could be made to return him into detention in the receiving country, was being detained unlawfully.

The claimant sought damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.

The claimant was an Iraqi national who had been granted exceptional leave to remain in the United Kingdom. He had since been served with a notice of a decision to deport him and to detain him pursuant to Sch.3 para.2(2) of the Immigration Act 1971. The deportation decision had been made on basis that the claimant had been actively engaged in the provision of material support to the insurgency in Iraq, that it was known that he had travelled to Iraq in the summer of 2004 where he had engaged in insurgency activities, that it was assessed that he had continued such activities in support of the Iraqi insurgency since his return to the UK, that he was in contact with a number of other individuals in this country involved in similar activity, and that it was also known that he was in contact with several individuals in this country assessed to be operating to an Al Qaeda agenda who were themselves assessed as representing a threat to National Security.

It was recognised that deportation would probably entail the resumption by the claimant of his anti-UK terrorist-related activities, and the secretary of state’s preference was that upon his return to Iraq he should be detained, if legally possible, either by the Iraqi authorities or by multinational or United States forces. The claimant was detained pending deportation between January and November 2005. By November it became clear that it would not be possible to transfer him into custody on his return to Iraq, and in those circumstances the deportation decision was withdrawn.

The claimant submitted that the deportation decision was unlawful because it had been made for the ulterior purpose of ensuring his detention in Iraq; there was never any viable prospect of removing him compatibly with his Convention rights; and no proper enquiries had been made into whether there was any such prospect. Alternatively, he submitted that irrespective of the lawfulness of the deportation decision, the decision to detain was unlawful given the lack of any viable prospect of his being removed compatibly with his Convention rights. He further argued that the secretary of state had failed to identify, prior to the decision to detain, that specific arrangements would be necessary to address the risk of breaches of his Convention rights if removed to Iraq.

Detention unlawful

Judgment was for the claimant.The evidence was that pre-June 2005 the secretary of state had given no consideration to what might happen to him on his return to Iraq, to any risks to his safety in Convention terms, or to what safeguards might be required if he were to be returned in a way that was compatible with his Convention rights. Those findings were sufficient to render the pre-June 2005 detention unlawful. Having regard to the obligation not to act incompatibly with the subject’s Convention rights, the secretary of state was bound to have regard to whether removal would breach the UK’s obligations under either the Convention or the 1951 Refugee Convention .

While he was not obliged to have in place all necessary arrangements for the subject’s safe return before making the decision to deport and to detain, the Secretary of State was obliged properly to turn his mind to the question of whether such arrangements were required if the subject was lawfully to be removed. He had not done that and therefore detention  of the claimant pre-June 2005 was unlawful.

The power to detain under the 1971 Immigration Act had to be strictly construed, and should be compliant with the principles laid down in Hardial Singh [1984] 1 WLR 704, as extrapolated in Tan Te Lam v Superintendent of Tai A Chau Detention Centre (1997) AC 97 PC (HK). These authorities established that  purpose of a deportation order was the enforced removal of the subject from the UK, not his enforced surrender into the custody and detention of the authorities operating in the receiving country. That could only be achieved via the extradition process.

The determination of the secretary of state’s true purpose in making the deportation order was pivotal to assessing the lawfulness of the detention (R v Governor of Brixton Prison Ex p Soblen (No2) (1963) 2 QB 243 CA). The evidence showed that once the secretary of state applied his mind to what would happen to the claimant on his return to Iraq, he had no intention of proceeding with the deportation unless it could be guaranteed that upon removal the claimant would be detained immediately by some authority there.

At all times from June onwards he was not being detained for the sole purpose of effecting his removal from the UK, but for the additional purpose of investigating whether acceptable arrangements could be made to return him into detention in Iraq. Detention for the purposes of investigating whether acceptable arrangements, including convention-compliant arrangements, could be made for the subject’s transfer into detention in the receiving country had nothing to do with any purpose to which a deportation order was directed. The power to make such arrangements could neither be implied into, nor could it be held to be incidental to, the power to deport. The detention therefore was unlawful.

Case Comment

This case reflects the level of paralysis in the border control system in this country. The claimant would not have been in the UK to make this claim had he not been given leave to remain because of  a 2001 policy which prevented the return of the claimant to Iraq “on account of its oppressive regime” .

He was then arrested and detained when his links with Al Qaeda and the history of his insurgent activities came to light. The Home Office had calculated that the threat to British interests would not expire after his return to Iraq.  The defendant secretary of state therefore sought to avoid such a scenario by delaying deportation until arrangements could be made for the claimant to be transferred into the custody of the authorities in Iraq.

This in turn rendered the detention unlawful. Even without such forethought, the proposed deportation would have been pronounced unlawful because of the extra-territorial effect of Article 3 of the Human Rights Convention, ie that he would have been likely to be exposed to inhuman and degrading treatment.

There was, in other words, never ever any realistic prospect of the claimant being removed compatibly with his Convention rights.

Here we have an impasse. The Convention prevents deportation because of risk in destination states;  narrow statutory interpretation renders detention unlawful if it is extended, on the basis of these risk considerations.  This impasse is the logical consequence of interpreting the effect of the Convention generously, and the powers of the Home Office restrictively.

At the time the Convention was crafted, it could not have been envisaged that Article 3 (and Article 8, in its train) would ultimately entail an obligation on signatory states to protect individuals from actions taken by, or within the territory of, non signatory states – the so called “extra-territorial effect” created by various rulings of the Strasbourg Court, most notably Chahal v United Kingdom.

King J observes at para 76 that

If … there is no prospect at all – regardless of the time factor – of a lawful removal compatibly with the person’s convention rights then the power to detain cannot arise or continue to exist.

Under human rights law, the UK is obliged to protect individuals from the acts of third party states. But under ordinary immigration law, it is unlawful for the authorities to take  steps to minimise the security concerns posed to British interests from abroad. Such a consideration has been declared outwith the powers of the 1971 Act. But why? If Article 3 can have extraterritorial effect, why could the extraterritorial effect of the detainee, as it were, not be a legitimate consideration in ordering his continued detention prior to deportation?

The only way this particular difficulty can be avoided is for the Secretary of State so to arrange things so that the return of a deportee into custody in the receiving country may not be construed as the original purpose of the detention (such an arrangement is controlled exclusively by extradition law); the (ostensible) purpose should be detention pending deportation because the individual’s continued presence in this country is not conducive to the public good. But if deportation “is always going to be impossible” because of the possible Article 3 risks, then the legitimate purpose can never be posited and detention in all cases will be for other, and therefore unlawful, reasons.

And in the unlikely event that it should ever happen, the abolition of the Human Rights Act would not make much difference – the UK is still bound by its obligations under the Convention and no court would lightly abandon the Strasbourg jurisprudence, lumbered though it is with the principle of extra-territoriality.  But, as we have mentioned in previous posts , the strong adherence to human rights – expansively interpreted – may be subversive of everything the Convention protects, and therefore it may be time for a root and branch review of the vocabulary of Article 3 and how it is understood.

If the word “torture” applies to all oppressive interrogation techniques, and “inhuman and degrading treatment” describes a range of woes from inadequate medical treatment to ethnic discrimination, then Convention countries are strictly obliged to rescue the citizenry not only from the rest of the world but each other.  This makes sense only if we believe either that “torture” is  just another form of psychologically harmful bullying which can be made to go away by the UK acting as the world’s social worker.  Such an interpretation may be all part and parcel of the promise held out by human rights ideology of a better world, a better global community, a brighter and more humane future.  In short it provides an answer, which is moral to the point of piety, to the undeniable fact of human brutality. But it is a fallacy that we cleave to at our peril.

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