Is the UK shackled by its deportation rules?

7 April 2012 by Rosalind English

R (on the application of Amada Bizimana) v Secretary of State for the Home Department [2012] EWCA Civ 414

In the wake of France’s apparently unencumbered expulsion of individuals on public interest grounds there has been a fresh outcry from the press about the shackles imposed by the Human Rights Convention on the UK authorities which other signatory states seem to ignore with impunity. The Times leader column, headed “Sarko’s way”, asks “Why is it that the French can deport their foreign undesirables but we in Britain cannot?” –

Bish, bosh, no problem, it seems. Although all three men, apparently have the right to appeal against their sudden lack of access to France, they will have to exercise it from afar. And at this point one can only wonder how on earth they can do it in France, but we cannot do it here in Britain…

The actions of the French Government raise the obvious question (as well as a gigantic eyebrow): how come they can do it, and we can’t? What does Nicolas Sarkozy have that David Cameron lacks? France accepts the judgments of the ECHR and is regarded as being as civilised, almost, as we are.

But in truth the Convention is not always to blame in these cases; sometimes deportation can run aground on a strict interpretation of English statute law without the help of human rights, as the case below demonstrates.

The Court of Appeal ruled here that where the prospect of deporting a detainee within a reasonable period had become increasingly unlikely due to difficulties establishing his nationality, his continued detention became unlawful.

Background facts

The appellant claimed to be a Burundi national. He had entered the United Kingdom illegally in 2003. The secretary of state did not accept that he was Burundian and rejected his asylum claim. But while his asylum claim was being processed the appellant commenced cohabitation with a young woman who also claimed Burundian origin. She had two children, including a daughter whom she claimed was the appellant’s child, so they were given indefinite leave to remain. In due course the appellant, who had failed to report, was convicted for possession of false identity documents and, following the completion of his custodial sentence, was transferred to immigration detention. He was served with a deportation order under the Immigration Act 1971.

There began the “tortuous process of attempting to obtain travel documents which would enable the claimant to be deported”, and indeed the Burundi authorities created the first difficulty by concluding, after a telephone interview with the appellant in Swahili, that he was more likely to be a Democratic Republic of Congo (DRC) national and refused to issue a travel document. Further difficulties arose in establishing the appellant’s nationality as the DRC authorities expressed the view that he was Burundian, and a later report found that he was Tanzanian. “While all these debates dragged on,” noted the Court, “the claimant remained in detention and time ticked by.”

In late 2009, the appellant sought the revocation of the deportation order and issued judicial review proceedings on the basis that his continued detention was no longer lawful.  He was eventually granted bail, the deportation order was revoked and he was granted indefinite leave to remain. The judge dismissed his claim for judicial review as his detention had been lawful.

The Court of Appeal accepted the appellant’s arguments and upheld the appeal.

The Court of Appeal’s reasoning

There had been nothing unlawful about the appellant’s detention up to 2009. The Court noted that the immigration officers had properly explored matters which needed to be explored. They had adopted the appropriate approach in evaluating the evidence and had concluded that there was a real risk of absconding; the Court also agreed that up to that point, despite the appellant’s separation from his family, detention was reasonable.

On the other hand, the statutory power to detain is subscribed by the well-rehearsed Hardial Singh principles which say, in effect, that  the Home Secretary can only authorise detention if the individual is being detained pending the making of a deportation order or pending his removal. It cannot be used for any other purpose. As the power is given in order to enable the machinery of deportation to be carried out, the power of detention is impliedly limited to a period which is reasonably necessary for that purpose.

And to satisfy these criteria it is not enough for the immigration authorities to satisfy the courts that they are doing all they reasonably can to effect deportation. Lord Dyson concluded in Lumba that this was no justification for indefinite detention, no matter how diligent the efforts of the Home Office.  Furthermore, everything changed since  the newly enacted Section 55 of the  Borders, Citizenship and Immigration Act introduced the welfare of children as a crucial consideration in the continuation of detention. The claimant’s application for revocation of the deportation order then became “a strong one”:

… He could rely on his now well established ties with Ms. Abdallah and the children, one of whom was a British citizen. Furthermore if the claimant’s application for revocation was refused, he would have an in country right of appeal:

By late January 2010, it became apparent that the secretary of state would not be able to effect the appellant’s deportation within a reasonable time. Therefore, his continued detention became unlawful from that point onwards under the four “Hardial Singh” principles.

The case was remitted to determine the question of what remedy the appellant was entitled for his unlawful detention.

Comment

Whatever the merits of this particular outcome it is clear from the way this case has run its course that the UK authorities face almost insuperable difficulties in dealing expeditiously with the deportation of illegal entrants.  Mr Bizimana may have been detained for sixteen months, but the Court recognised that the UKBA had conducted itself quite properly in this matter.    The secretary of state could not do otherwise than to postpone her consideration of the revocation of the deportation order until the claimant’s country of origin was established. And, as her counsel explained,

As each new avenue appeared, it was duly investigated. Some delays are inevitable before meetings or interviews can be set up. On occasions the claimant did not co-operate.

There were doubts about the genuineness of the claimant’s answers during his interview with the Burundi officials.As time went on the difficulties of establishing the claimant’s nationality multiplied.

By January 2010 three different countries were under consideration, namely Burundi, the DRC and Tanzania. No country, however, had yet been willing to acknowledge the claimant as one of its nationals.

These necessary administrative delays reinforce people’s entitlement to remain, and additional rights are consequently won by extended time spent in the country and establishing family ties. It comes as no surprise then that the only response is to prioritise immigration control abroad. Despite what the newspapers suggest, we are not alone amongst EU member states in this regard. In his immensely detailed and fascinating article on the subject, Europe at Bay, London Review of Books writer Jeremy Harding describes the southward push of Europe immigration control, so that a “virtual border” exists, not around the EU as such, but around outposts in countries much further afield which have been coopted by the EU in the restriction of migration. As Europe “recoils” from the idea of inward migration, its border policy becomes more probing and adventurous –

The motto: expand the better to contract. The EU’s boundaries are constantly being pushed beyond the physical extent of the union into forward positions from which member-states hope to defend themselves against further intrusion.

There is even a European Agency for the Management of External Borders – Frontex – which since its inception in 2004 gathers intelligence about border pressures and shares it with member-states; it also puts rapid deployment teams and advisers at their disposal. The member states of the EU have agreed to restrict migration to a trickle and set up holding camps outside the EU where unauthorised migrants can be detained and eventually returned to their place of origin. The publicity video on Frontex’s website describes its operation as a necessary counterweight to the freedom opened up in most of Europe by Schengen:

With the Schengen freedom the need to strengthen external borders became paramount. Frontex was formed to help Member States to ensure that these external borders remain sealed against illegal passengers and human trafficking.

Although the headquarters in Warsaw are the “nerve centre” of operations happening across the world, this radical border enforcement requires particular skills – experts in forged documentation, coastguards, paramilitaries, rendition squads, and, in particular, “Rabits” – rapid border intervention teams, who can detect the heartbeat of a person hidden on board a lorry or in a container. This new, “virtual” border attracts little publicity and the Frontex site makes a great deal of  the agency’s high regard for human rights. But the fact remains that for Mr Bizimana, deportation to East Africa would put him once again behind this invisible but fearsome barrier which becomes ever more efficient as European immigration control forges south. One of the secretary of state’s arguments justifying continued detention in this case was that if the appellant had been released, there would be a “substantial risk of absconding”: this was because he had absconded before and “he was very keen not to return to East Africa”.

This is one of the many unintended consequences of rendering deportation so difficult at home. It simply  moves the enforcement abroad. This kind of “rationed access” means that only the lucky few make it far enough to experience these European values we hold so dear, a contradiction deep at the heart of the European experiment:

 On the one hand, gated communities are anathema to the egalitarian ideal. On the other, gating and exclusion are the preconditions of a new civilising mission Europe now feels obliged to carry out at home, as it reconciles itself to earlier intakes of newcomers.

Can rights and values be universal if they seem, even after lengthy explanations of the communitarian case, to be rationed by a subset of rules about sovereign boundaries? Perhaps we should agree to think of rights and values as limited resources, and admit that Europe is now caught in a bitter struggle over who can or can’t access them.

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