CASE OF J.N. v. THE UNITED KINGDOM
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
4. The applicant was born in 1971 and lives in Barking. 5. The applicant arrived in the United Kingdom on 7 January 2003. He claimed asylum on 15 January 2003 but his claim was refused by the Secretary of State for the Home Department on 15 March 2003 and his appeal against that decision was refused on 1 October 2003. 6. On 13 February 2004 the applicant was convicted of indecent assault in relation to an incident involving two fifteen-year old girls and was sentenced to twelve months’ imprisonment. He was released on licence on 7 September 2004 but his licence was revoked on 24 September that year because he failed to comply with the terms of the licence. 7. The applicant was re-arrested on 16 January 2005. 8. On 31 March 2005 the applicant was served with the decision to make a deportation order. On the same day he was detained pursuant to the Secretary of State’s powers under paragraph 2(3) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The deportation order was signed on 4 August 2005 and served on him on 12 August 2005. 9. On 5 September 2005 the applicant indicated that he wished to return to Iran. One month later an application was submitted to the Iranian authorities for an emergency travel document to enable him to travel there. However, the application was rejected by the Iranian authorities on 22 November 2005. 10. The applicant was subsequently interviewed at the Iranian Embassy on 15 September 2006. However, two days later the Embassy informed his solicitors that they could not issue a travel document as no formal identification of the applicant had been provided. On 17 October 2006 the Home Office was informed that the Iranian Embassy required a birth certificate before any travel documents could be issued. It appears that the Home Office thereafter proposed to submit copy documents. The Iranian Embassy initially agreed to this proposal, but later refused. 11. On 13 September 2007 the applicant commenced judicial review proceedings challenging his continued detention. 12. On 6 November 2007 the Iranian Embassy agreed to issue a travel document provided that the applicant was prepared to sign a “disclaimer” consenting to his return. 13. On 11 December 2007 the Administrative Court ordered the applicant’s release from detention subject to a number of conditions, including that he be subject to a curfew; that he remain at a fixed address; that he report on a weekly basis to the nearest Border and Immigration Agency office; and that he take the steps necessary to obtain travel documents. 14. The applicant refused to sign a “disclaimer” on 14 December 2007. Although he was released on 17 December 2007, four days later the matter was brought back to the Administrative Court and a different judge discharged the previous order on account of his failure to comply with the conditions for release (namely, that he take the steps necessary to obtain travel documents). As a consequence, the applicant was once again liable to detention. 15. On 27 December 2007 Group 4 Securicor reported that they had on two occasions attempted to visit the applicant at his nominated address to install the equipment required for electronic tagging. Both visits took place during the hours of curfew. Very shortly afterwards the applicant reported a different address to the immigration authorities so that they could continue to communicate with him. 16. On 8 January 2008 an authority was issued for the applicant’s detention and on 14 January he was detained while reporting to the immigration authorities. 17. By February 2008 the authorities had been alerted to the fact that the applicant was showing some signs of psychological disturbance, had been diagnosed with “reactive depression” and was receiving medication for his psychological symptoms. 18. On 26 February 2008 the claim for judicial review launched on 13 September 2007 was dismissed. 19. The applicant attended at the Iranian Embassy on 7 April 2008 but no travel document was issued. On 4 June 2008 he again refused to sign a disclaimer. 20. On 25 July 2008 the applicant was alleged to have displayed “inappropriate behaviour” to a female member of immigration staff at a detention centre. His behaviour was also alleged to have been disruptive. 21. In or around September 2008 the immigration authorities discussed the possibility of prosecuting the applicant under section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for failing without reasonable excuse to comply with the Secretary of State’s requirement to take specified action to enable a travel document to be obtained. However, no prosecution was ever mounted. 22. On 13 October 2008 the applicant wrote to the United Kingdom Border Agency, indicating that he would be willing to return to Iran if he were to be compensated for the periods of detention which he had undergone. However, the Border and Immigration Agency refused to agree to any such request. 23. On 6 January 2009, 6 February 2009, March 2009, May 2009, June 2009 and September 2009 the authorities made further attempts to engage the applicant in a voluntary return. However, on each occasion he indicated that he was not willing to co-operate or sign a disclaimer. 24. On 17 March 2009, 9 June 2009 and 7 October 2009 the applicant made three applications for bail to the Asylum and Immigration Tribunal. On each occasion the application was dismissed. The reasons given for the dismissal of the applications included the fact that the applicant could end his own detention by signing the disclaimer. 25. The applicant’s solicitors wrote a letter before action on 21 October 2009 and proceedings were issued on 6 November. On 4 December 2009 the High Court granted the applicant permission to apply for judicial review and the Home Office was ordered to release him on bail within forty-eight hours. 26. At the hearing counsel for the applicant argued that both periods of the applicant’s detention could properly be looked at as being unlawful, although he focused his attention on the second period. Counsel for the Secretary of State for the Home Department argued – and the court appears to have accepted – that the first period could not be in question legally, since the applicant had been released for one month pursuant to a court order and the order enforcing release had been discharged. However, he conceded that when considering the lawfulness of the second period of detention, the first period of detention would have to be taken into account. 27. In considering the lawfulness of the second period of detention, the Administrative Court judge recalled that the authorities should be free to make strenuous efforts to obtain the assent of a person they proposed to deport. If they were unsuccessful, they could and should seek any way around his consent, for example by persuading the country of origin to issue a travel document without a disclaimer. However, the judge noted that the law did not permit the indefinite detention of someone who was never going to consent to deportation. 28. Bearing that in mind, the judge considered the history of the applicant’s second period of detention. He observed that during this period there had been no change in approach to the applicant, no prosecution had been brought under section 35 of the 2004 Act, and there had been no further approach to the Iranian authorities to see if they would change their position. 29. The judge then had regard to the relevant principles of domestic law set out in R v. The Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and in the guidance given by the Court of Appeal in both R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804 and WL (Congo) v. Secretary of State for the Home Department [2010] EWCA Civ 111 (see paragraphs 35-36 below). Applying those principles and the relevant guidance, the judge noted that the most important factor justifying detention was the applicant’s refusal to sign the relevant disclaimer. He further noted that lengthy detention could be justified by the applicant’s offending, by the realistic fear that he would further offend and by the genuine and reasonable concern that he might abscond. However, even given those factors, the judge found that there had to come a time when such a sterile tactic as merely sitting and waiting while repeatedly urging the applicant to change his mind, in full expectation that he would not, ceased to be detention genuinely for the purpose of deportation. The judge therefore concluded that “the woeful lack of energy and impetus” applied to this case from at least the middle of 2008 meant that it could not possibly be said that the Secretary of State on this occasion had complied with the obligation in Hardial Singh to act with “reasonable diligence and expedition”. He therefore held that the applicant’s detention had been unlawful from 14 September 2009. 30. With regard to the question of whether there should be guidance on how long it might be appropriate to detain an individual, the judge made the following observations: “It cannot be right for the Secretary of State to be led to believe, by looking at a digest of the range of decisions that have been taken, that it is safe to detain for X months or X years. Equally, it cannot be right for those who are in the positon of being detained for considerable periods, stubbornly refusing to comply with the authority’s requests to facilitate voluntary repatriation, to be put in a position of saying, ‘If I hold on another year, or two years, or three years, then I am all right’. A tariff is repugnant and wrong, and it seems to me that it would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases.” 31. In a decision dated 13 May 2011 the applicant was awarded GBP 6,150 in damages. 32. The applicant sought permission to appeal. On 31 October 2011 permission to appeal was refused. However, on 7 November 2012 the applicant renewed his application for permission to appeal and on 10 February 2012 he was granted permission to appeal only in respect of the quantum of damages awarded. The outcome of that appeal is unknown.