TABASSUM v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Mr Naeem Anwar Tabassum, was born in 1966 and lives in West Drayton. His nationality is in dispute. He maintains that he is a national of the United Kingdom; the Government maintain that he is a Pakistani national. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. The applicant claims to have been born in the United Kingdom to a British mother and a Pakistani father, and thus to have British nationality. He claims that he returned as a young child with his father to Pakistan, where he lived until he re-entered the United Kingdom in 2000, travelling with both his expired child’s British passport and his valid Pakistani passport. There is no evidence to support this account, as he claims that both passports were subsequently stolen from him. 4. In November 2001, the applicant was convicted for persistently soliciting a woman for prostitution and fined. He was convicted in July 2004 of obtaining property by deception, for which he was sentenced to two years’ imprisonment. He was convicted in May 2005 of soliciting persons for car hire without a licence and driving whilst uninsured, for which he received a fine. He was convicted in September 2008 of driving whilst uninsured, for which he was fined and disqualified from driving for six months. On 19 September, he was convicted of forgery. He was sentenced to eighteen months’ imprisonment and deportation proceedings against him were initiated. He was notified of his liability to deportation on 29 October 2008 and did not make any representations in response. Nor did he appeal against deportation. On 10 December 2008, he was served with a signed deportation order. At the expiry of his sentence on 12 June 2009, the applicant was taken into immigration detention pending his deportation. 5. On 1 December 2008, whilst still in prison, the applicant refused to attend an interview with the High Commission for Pakistan in London to obtain a travel document. Following a warning, however, he attended an interview on 23 June 2010. The Pakistani authorities were not prepared to accept that the applicant was a national of Pakistan; however, subsequent to the interview, further documentation was sent to the High Commission by the British authorities in evidence of the applicant’s connection to Pakistan. Regular reminders have since been sent by the British authorities and, on 17 June 2011, a response was received from the High Commission, stating that the applicant’s national status was required to be verified from Pakistan. 6. The applicant sought permission to apply for judicial review of the legality of his detention. Permission was granted and a substantive hearing was held before the High Court on 15 July 2011. The onus was on the applicant to prove his claimed British citizenship and the judge found that, on the evidence before him and having regard to the applicant’s dishonesty and use of false identities in the past, he had not done so. He had not established that any of the identities he had claimed in the past were actually his, or that he had been born in the United Kingdom to a British mother, as he claimed. Having failed to prove that he was British, he must be treated as a foreign criminal, and was thus liable to detention pending his deportation. The judge was satisfied that the Secretary of State was genuinely using the power to detain for the purposes of effecting the applicant’s deportation. While the two-year period of immigration detention was long, it was not unreasonable, given the applicant’s insistence that he was British when he was not, and his failure to disclose sufficient details about his years in Pakistan to enable the Pakistani authorities to issue him with a travel document. The judge also accepted the Secretary of State’s decision that the applicant presented a high risk of absconding and of committing further offences if granted immigration bail; the fact that the applicant was failing to cooperate in obtaining a travel document only reinforced this risk. The key point was that the obstacles to the applicant’s deportation had been created by the applicant himself and his failure to give an honest account to either the British or Pakistani authorities. Given that his claim to be British had now been examined and rejected by a court, the judge found that the applicant might now be minded to disclose the necessary information to the authorities to enable a travel document to be issued. There was a sufficiently realistic prospect that the applicant’s deportation would take place within a reasonable time to render his continued detention lawful. The applicant notified the Court on 21 December 2011 that he had been released from detention. He did not provide any information as to why he had been released. 7. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. 8. Section 3(8) of the same Act provides that when any question arises as to whether a person is a British citizen or not, the onus shall be on the person asserting such citizenship to prove it. 9. Paragraph 2 of Schedule 3 of the same Act provides that, where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom. 10. The Supreme Court recently reaffirmed principles that had been set down in the case of R. v. Governor of Durham Prison, ex parte Hardial Singh (1984) 1 WLR 704 regarding the Secretary of State’s power to detain those whose deportation is pending, in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12. The principles are as follows: 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 the deportation within a reasonable period, he should not seek to exercise the power of detention; and iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.