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DEPORTATION OF FOREIGN NATIONALS

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					          DEPORTATION OF FOREIGN NATIONALS


Recent press interest and subsequent politicisation of the issue of foreign
nationals convicted or accused of committing crimes has led to significant
changes in the practices of the courts, prisons and Home Secretary in the last
two weeks.

We have identified the following as particular areas of concern within the
criminal justice system:
-refusal to release foreign nationals who have been granted bail by the criminal
court;
-prison privileges being withdrawn;
-prisoners being re-categorised (often shortly before parole hearings);

One criminal practitioner was told by court gaolers that their instructions were
to seek authority from the Home Office via the Prison that the defendant can
be released:

      in relation to all defendants born outside the UK
      who have been granted bail in the Crown Court (having previously been in custody)


It is increasingly clear that practitioners of criminal and prison law need
knowledge of, or access to, immigration law and practice and vice versa.

In this “fact sheet” we have aimed to answer the most likely questions a foreign
national in the criminal justice system may have in relation to conviction,
detention and deportation.

We hope you find it useful.

Brenda Campbell, Louise Hooper, Duran Seddon, Maya Sikand, Mark Symes,
Ronan Toal
30th May 2006




                                                                                           1
1.         DEPORTATION
     1.     What is deportation?
     2.     Who can be deported?
     3.     Who cannot be deported?
     4.     On what basis can a person be deported?
     5.     What does the Home Secretary consider?
     6.     What is current policy in deportation following conviction cases?
     7.     What is the procedure post-conviction?
     8.     What rights of appeal exist against this decision?
     9.     How is a deportation order made?
     10.    How does removal take place?
     11.    Resources



2. RECOMMENDATION FOR DEPORTATION BY
   CRIMINAL COURT
     1.     What is the procedure to be followed by the Criminal courts before a
            recommendation for deportation is made?
     2.     What criteria do the Criminal Courts apply?


3. DEPORTATION OF PERSONS EXERCISING
   COMMUNITY LAW RIGHTS OF FREE MOVEMENT
     1.     Who qualifies as a person exercising community law rights?
     2.     In what circumstances can they be expelled?
     3.     Can a European national against whom expulsion action is being taken be
            detained?
     4.     Can expulsion be challenged?

4. RECATEGORISATION OF A FOREIGN PRISONER’S
SECURITY STATUS

5. IMMIGRATION DETENTION
     1.      Where are the immigration powers of detention to be found ?
     2.      What categories of foreign nationals can be detained under immigration
             legislation ?
     3.       What changes are proposed to the above powers of immigration
             detention ?



                                                                                   2
 4.    Is everyone who falls within the above powers of detention automatically
       detained by the immigration authorities ?
 5.    The above powers of immigration detention seem very broad; can
       everyone who, on the face of it, appears to fall within the above
       categories be detained lawfully ?
 6.    What procedures must officers go through in order to effect immigration
       detention ?
 7.    What about the detention of ‘suspected international terrorists’ ?

6. IMMIGRATION BAIL
 1.   Right to seek bail
 2.   Who do I make the application to?
 3.   How do I make the application?
 4.   What conditions can be imposed?
 5.   Sureties/Recognisance
 6.   Taking instructions in bail cases
 7.   Accommodation
 8.   How do I challenge the lawfulness of detention?
 9.   National security cases




                                                                             3
                                  DEPORTATION
     1.    What is deportation?
     2.    Who can be deported?
     3.    Who cannot be deported?
     4.    On what basis can a person be deported?
     5.    What does the Home Secretary consider?
     6.    What is current policy in deportation following conviction cases?
     7.    What is the procedure post-conviction?
     8.    What rights of appeal exist against this decision?
     9.    How is a deportation order made?
     10.   How does removal take place?
     11.   Resources


1.         What is deportation?

Deportation is the process whereby a non-British Citizen can be compulsorily removed from
the UK and prevented from returning unless and until the deportation order is revoked.

Deportation is to be distinguished from “administrative removal” because the tests and
processes are different.

2.       Who can be deported?
Foreign nationals
This includes all foreign nationals whether in the UK lawfully or unlawfully.
EEA nationals can be deported however special rules apply and the technical term is
“expelled” (see section on EEA nationals)

3.       Who cannot be deported?
British Nationals
It is not possible to deport a British Citizen. There are some limited circumstances in which
a person who has become British can be deprived of their nationality but this is outside the
scope of this paper.

Commonwealth and Irish citizens ordinarily resident in the UK on or before 1 January 1973
and for five years prior to the decision to deport or the conviction.

4.     On what basis can a person be deported?
Grounds of Deportation
A person liable for deportation can be deported in the following circumstances:

-the Secretary of State deems his or her deportation to be conducive to the public good




                                                                                            4
http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/oem
/section_b_-_deportation.Maincontent.0005.file.tmp/Section%20B%20-%20Ch-13.pdf

-another member of the family to which he or she belongs is to be deported
http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/oem
/section_b_-_deportation.Maincontent.0006.file.tmp/Section%20B%20-%20Ch-14.pdf

-A court recommends deportation after conviction of an offence punishable by
imprisonment
http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/oem
/section_b_-_deportation.Maincontent.0007.file.tmp/Section%20B%20-%20Ch-15.pdf


In the case of a foreign national convicted of a crime it is not necessary for the Court to
recommend deportation before the Home Secretary can start deportation proceedings.
Where the Court has not recommended deportation it is likely that the SSHD will rely on
the ground that the deportation is conducive to the public good. However in a case where the
Crown asked for a recommendation to deport in the criminal proceedings and the judge
refused to take this course of action the Home Secretary would be required to take this into
account and give proper reasons for his decision.

5.         What does the Home Secretary consider?

The Immigration Rules state:

“364. Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public
interest will be balanced against any compassionate circumstances of the case. While each case will be considered in
the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and
fair as between one person and another, although one case will rarely be identical with another in all material
respects. In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has
failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport
is reached the Secretary of State will take into account all relevant factors known to him including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf.”

As currently applied the rules indicate that deportation is a matter of discretion rather than the application of a
precise code with mandatory effect. The Home Secretary has indicated that this position may change.



                                                                                                                      5
Where the Home Secretary is considering making a deportation order he should consider the
individual facts of a person‟s case. In exercising his discretion he is required to reach a fair
balance between the public interest in the proper exercise of immigration control and the
personal interests of the deportee. The Home Secretary will also consider any potential
deterrence the deportation may have on others.

Where the Home Secretary has made broad statements as to how the power will be
exercised the individual will be entitled to rely on those statements (for example a non-
violent minor offender may be entitled to rely on the recent statements to resist
deportation). The Home Secretary, for obvious reasons, also has a policy not to take
enforcement action against a national of an active war zone.

The Home Secretary is also required to consider the circumstances to which a proposed
deportee is to be returned to ensure that the UK will not be in breach of its international
obligations if deportation takes place.

He should consider all representations made whether by the proposed deportees legal
representative, MP or member of the public.


Refugees
A person who had previously been granted refugee status does not gain permanent
immunity from deportation. A refugee may lose such protection in the following
circumstances:

- where the criminal conduct of the refugee is sufficiently serious to take them outside the
protection of the refugee convention
- where the circumstances in which they were recognised as a refugee have ceased to exist
and the Home Secretary has taken cessation action

Article 3
Where a person (notwithstanding their criminal conduct) continues to have a real risk of
torture and/or inhuman and/or degrading treatment if they are sent to the proposed
destination the ECHR would make such action unlawful.


Terrorism related issues
Non conducive action will be taken against those who “foment, justify or glorify terrorist
violence in furtherance of particular beliefs” by doing any of the following:
    - writing, producing or distributing material;
    - public speaking including preaching;
    - running a website;
    - using a position of responsibility such as being a teacher, community leader or youth
         leader to express such views;

Action will also be taken against those
   - seek to provoke others to commit terrorist acts


                                                                                               6
     -   foment other serious criminal activity or seek to provoke others to serious criminal
         acts;
     -   foster hatred which might lead to inter community violence in the UK.

This list is indicative but not exhaustive and it was made “absolutely clear that these are
unacceptable behaviours and will be grounds for deporting and excluding such individuals
from the UK.”

Miscellaneous factors which have given rise to deportation action
A sham marriage was held to undermine a “fundamental institution of society”. Criminal
associations which have not led to a conviction and the commission of offences abroad have
been relied on in deportation action as has deception of the Home Office.


6.       What is current policy in deportation following conviction cases?

The Home Office instructions state:

“CRITERIA FOR REPORTING CONVICTIONS
The police will submit a report to IND in cases where:
   • the court has recommended deportation;
   • the conviction was for an offence under the Immigration Act 1971;
   • either a custodial sentence (of whatever length and whether or not suspended) or a
   hospital order (under Section 37 of the Mental Health Act 1983) was imposed for an
   offence involving violence against the person or drugs; or
   • a custodial sentence of 12 months or more was imposed (whether suspended or not),
   regardless of the nature of the offence.

         The police also have discretion, where there are exceptional circumstances, to report
         cases falling outside these criteria. “

In a recent press release the Home Secretary announced two immediate changes to this
policy:
    1- the IND will now consider for deportation all non-EEA nationals who have been
        given 12 month prison sentences either in one sentence or as an aggregate of two or three
        sentences.
    2- new guidance will be issued to ensure that the exercise of discretion in a deportation
        case is not tilted in favour of the criminal rather than public safety.

In relation to the first issue it appears that more weight is to be placed on offences involving
violence or threats to public safety rather than minor and non-violent offences.

The new guidance does not yet appear to be publicly available. It is likely to be on the home
office website (www.ind.homeoffice.gov.uk) when it is.

7.     What is the procedure post-conviction?
Whether or not a recommendation has been made the Home Secretary will consider whether
to deport the person.


                                                                                                7
Usually he would write to the person stating that the Home Office is considering deporting
them and giving a certain period of time for representations to be made.

If he decides to proceed with deportation action he will issues a “notice of intention to
deport” or a “decision to deport” (Forms ICD.1070-1076 and ICD 1914). This should
include:
-reasons for deportation
-how to appeal
-power to detain (unnecessary where a person has been recommended for deportation by
the court)

http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/oem
/section_b_-_deportation.Maincontent.0008.file.tmp/Section%20B%20-%20Ch-16.pdf


8.     What rights of appeal exist against this decision?

A person can appeal to the Asylum and Immigration Tribunal against the decision to make a
deportation order on the following grounds:
-that the decision should not have been made applying the factors to be considered under
the Immigration Rules and any relevant Home Office Policy to the circumstances of the case
-there are human rights reasons why the person should not be deported (including their
family life and the right to be free from torture, inhuman or degrading treatment or
punishment)
-if they have claimed asylum, that their removal would be in breach of the Refugee
convention.

In preparing any appeal against such a decision particular regard should be had to the test as
set out in Rule 364 and the various Home Office policies. Article 8 of the ECHR will be
relevant in most cases and a balancing act will need to be performed between the public
interest in deporting criminals and the individual‟s personal and private life. Factors to
consider would include:
    -        partner
    -        children
    -        employment
    -        date of conviction
    -        date of release
    -        probation officers report relating in particular to propensity to re-offend and
             danger to public
    -        nature of crime

Historically it has been very difficult to succeed where a case involves violence or supply of
drugs. It is likely that it will become more difficult to resist deportation because of the
politicisation of the issue.




                                                                                                 8
9.     How is a deportation order made?

 If no appeal is brought or the appeal is unsuccessful the Home Office can make a
“deportation order”

A deportation order is effective when it is signed and before it is served on the deportee.
Usually the order is signed by a Home Office Minister however where the case is
contentious the Home Secretary will be asked to sign the order personally.

At this stage further representations can be made to the Home Office and the deportee can
ask that the order is revoked.

If the Home Secretary refuses to revoke the order an appeal may be brought. However if
the person has already appealed the decision to make an order on such grounds the Home
Office would probably “certify” the appeal thereby preventing a further appeal (s96
Nationality, Immigration and Asylum Act 2002).

10.     How does removal take place?
Once a deportation order is signed and any further appeal rights exhausted, an immigration
officer will set removal directions. Where the person is serving a prison sentence,
arrangements for removal should be made to coincide with his release (whenever possible).

Deportation normally takes place at public expense.

11.     Resources:
Immigration Rules HC 395
http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/immigration_rules/part_
13.html

Policy instructions
Immigration Directorate Instructions
http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/table
_of_contents/chapter_13_-_deportation.html

Enforcement Instructions
http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/oem
/section_b_-_deportation.html

Louise Hooper
Garden Court Chambers
30th May 2006




                                                                                              9
            RECOMMENDATION FOR DEPORTATION
                  BY CRIMINAL COURT

     1. What is the procedure to be followed by the Criminal courts before a
        recommendation for deportation is made?
     2. What criteria do the Criminal Courts apply?



See:
        Archbold 5-910 to 5-923
        S3(6) Immigration Act 1971
         “…a person who is not a British Citizen shall… be liable to deportation from the UK if, after he
         has attained the age of 17 he is convicted of an offence for which he is punishable with imprisonment
         and on his conviction is recommended for deportation by a court empowered by this Act to do so”.

     1. What is the procedure to be followed by the Criminal courts before a
        recommendation for deportation is made?

        If a recommendation for deportation is to be considered at sentence, at least 7 days
         notice must be given to the offender in writing (Form IM3) )S6(2) Immigration Act
         1971)
        If the notice has not been served in time the hearing may be adjourned to enable the
         notice to be served.
        A recommendation for deportation should not be added „as if by an afterthought‟. The
         court must hold a “full inquiry into all the circumstances” with full submissions
         being invited from the defence on the issue (Archbold 5-918)
        If a recommendation is made full reasons should be given but failure to give full
         reasons does not necessarily mean the recommendation should be quashed.
        In the criminal courts, the power to make a recommendation must be exercised
         judicially and is concerned with the criminal behaviour rather than the enforcement
         of an immigration policy
        Whether to recommend deportation should be decided independently of the
         immigration status of the offender
        An appeal against a recommendation for deportation can be made to the Court of
         Appeal

2.       What criteria do the criminal courts apply?

R v Nazari 71 Cr.App.R 87 CA

The following guidelines („not rigid rules‟) were set

Firstly, the court must consider whether the accused‟s continued presence in the UK is to it‟s
detriment. The more serious the crime and the longer the criminal record, the more


                                                                                                           10
appropriate the order recommending deportation. But a minor offence would not merit a
recommendation for deportation. This analysis is fact dependant and the following will be
taken into account- seriousness of offence, the harm caused to the community by it and the
risk of committing further offences.

Secondly, the criminal courts should not be concerned with the political system in the
offender‟s home country or what their life is likely to be like there. It is for the Home
Secretary to decide in each case whether an offender‟s return to his country of origin would
have consequences which would make his compulsory return unduly harsh.

Thirdly, the criminal courts should have regard to the effect of any recommendation on
innocent third parties (eg family members). „This Court and all other courts would have no wish to
break up families or impose hardship on innocent people‟

The fact that an offender has been granted refugee status does not prevent the court from
making a recommendation for deportation if his continued presence is considered to be to
the potential detriment of the UK (R v Villa and Villa 14 Cr.App.R.(S) 34 CA).

A recommendation for deportation is not part of the punishment thereby justifying a
reduction in the overall sentence (R v Edgehill, 47 Cr.App.R 41, CCA)

If a recommendation is made the person may be detained under immigration powers whilst
awaiting deportation or alternatively given temporary admission to the UK by the
Immigration Authorities. (see also section on bail)

‘Potential Detriment’

See Archbold 5-920

Although a recommendation for deportation can be made against a first time offender, it is
arguable that an isolated offence, even serious in nature, committed by a person who has
otherwise led a law abiding life in the UK does not always indicate that the continued
presence of that person in the UK may give rise to „potential detriment‟. Where the person
has dependents who are resident in the UK, the court should balance the potential detriment
to the country by his continued presence against the harm that would be done to the
dependents should he be deported.

Brenda Campbell
Garden Court Chambers
30th May 2006




                                                                                                     11
      DEPORTATION OF PERSONS EXERCISING
    COMMUNITY LAW RIGHTS OF FREE MOVEMENT
   1. Who qualifies as a person exercising community law rights?
   2. In what circumstances can they be expelled?
   3. Can a European national against whom expulsion action is being taken be
      detained?
   4. Can expulsion be challenged?


1. Who qualifies as a person exercising community law rights?

The Treaty Establishing the European Community confers rights to enter and reside in the
UK on various categories of people. The most important piece of EU legislation describing
and giving effect to these rights is Directive 2004/38/EC of the European Parliament and of
the Council on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States                         (http://eur-
lex.europa.eu/LexUriServ/site/en/consleg/2004/L/02004L0038-20040430-en.pdf)             („the
directive‟). These rights are implemented in the UK by the Immigration (European
Economic        Area)      Regulations       2006     SI    2006/1003      (http://www.uk-
legislation.hmso.gov.uk/si/si2006/uksi_20061003_en.pdf).

Nationals of EU member states and their family members have a right of residence for up to
3 months (directive art. 6). The principal categories of people who have community law
rights to reside in the UK for more than 3 months are the following (see directive art. 7 and
12-14):

       a. workers or self employed persons (including those temporarily unable to work
          due to sickness or accident and in certain circumstances, the involuntarily
          unemployed);

       b. economically self-sufficient persons

       c. students

       d. the family members of a., b. and c. including family members who are not
          nationals of an EU member state

       e. non-EU national family members of a., b and c. who retain a right to reside in
          the UK following the death of, divorce from or departure of the EU citizen.

2.      In what circumstances can they be expelled?
Article 27 of the directive sets out „general principles‟ applicable to decisions to expel EU
nationals and their family members exercising community law rights of residence. It says in
part:




                                                                                          12
                  1. Subject to the provisions of this Chapter, Member States may restrict
                     the freedom of movement and residence of Union citizens and their
                     family members, irrespective of nationality, on grounds of public
                     policy, public security or public health. These grounds shall not be
                     invoked to serve economic ends.

                  2. Measures taken on grounds of public policy or public security shall
                     comply with the principle of proportionality and shall be based
                     exclusively on the personal conduct of the individual concerned.
                     Previous criminal convictions shall not in themselves constitute
                     grounds for taking such measures. The personal conduct of the
                     individual concerned must represent a genuine, present and sufficiently
                     serious threat affecting one of the fundamental interests of society.
                     Justifications that are isolated from the particulars of the case or that
                     rely on considerations of general prevention shall not be accepted.

                  3. …

                  4. …

Article 28 of the directive provides:

                  5. Before taking an expulsion decision on grounds of public policy or
                     public security the host Member state shall take account of
                     considerations such as how long the individual concerned has resided
                     on its territory, his / her age, state of health, family and economic
                     situation, social and cultural integration into the host Member State and
                     the extent of his/her links with the country of origin.

                  6. The host member state may not take an expulsion decision against
                     Union citizens or their family members, irrespective of nationality, who
                     have the right of permanent residence on its territory, except on serious
                     grounds of public policy or public security.

                  7. An expulsion decision may not be taken against Union citizens, except
                     if the decision is based on imperative grounds of public security, as
                     defined by Member states, if they:

                        (a) have resided in the host Member state for the previous 10 years;
                            or

                        (b) are a minor, except if the expulsion is necessary for the best
                            interests of the child, as provided for in the United Nations
                            Convention on the Rights of the Child of 20 November 1989

See regulations 19, 21, 24 and 25-29 of the Immigration (European Economic Area)
Regulations 2006 which are intended to implement the foregoing provisions in UK law.



                                                                                           13
Note that the directive refers to expulsion (not deportation) and the Regulations refer to
removal.

Regulation 19(3)(a) enables the removal of a person who otherwise has a community law
right of residence „on the grounds of public policy, public security or public health in
accordance with regulation 21‟. Regulation 21 reflects the provisions of directive arts 27 and
28 as to the circumstances in which a decision to remove on such grounds may be taken.

3.       Can a European national against whom expulsion action is being taken be
detained?
If a decision to remove a person with a community law right of residence is taken on
grounds of public policy or public security then, by regulation 24(3) he or she is to be treated
as if the provisions of the 1971 Immigration Act relating to deportation applied (i.e. s.
3(5)(a), s. 5 and Schedule 3. Schedule 3 includes the power to detain a person who has been
served with a notice of a decision to make a deportation order against him or her (para. 2(2)).
(see sections on immigration detention and bail)

4.     Can expulsion be challenged?
A person may appeal to the Asylum and Immigration Tribunal or to the Special Immigration
Appeals Commission against such a decision (regulation 26(1) and (6)).

Ronan Toal
Garden Court Chambers
30th May 2006




                                                                                             14
     RECATEGORISATION OF A FOREIGN PRISONER’S
                 SECURITY STATUS
Prison Service Order (“PSO”) 0900 governs the categorisation and allocation of prisoners. It
is available on the Prison Service Website (http://www.hmprisonservice.gov.uk) and should
be consulted before advising a prisoner on categorisation or recategorisation.


The security categories available for sentenced adult male offenders are as follows:


         Category A

Prisoners whose escape would be highly dangerous to the public or the police or the security
of the state, no matter how unlikely that escape might be, and for whom the aim must be to
make escape impossible.

         Category B

Prisoners for whom the very highest conditions of security are not necessary, but for whom
escape must be made very difficult.

         Category C

Prisoners who cannot be trusted in open conditions, but who do not have the resources and
will to make a determined escape attempt.

         Category D

Prisoners who can be reasonably trusted in open conditions


For the security categorisation available for women prisoners and young offenders, please
refer to PSO 0900.

Sentenced prisoners are categorised when they first enter the prison system and thereafter
security categories are regularly reviewed. The “test” for recategorisation of an adult is:

 (1), is the prisoner more or less of a risk to the public than when he was first categorised; and
(2), is he now more or less likely to escape or abscond

If the risk assessment points to downgrading or retaining the current category, control
factors (dependent on custodial behaviour) may nonetheless override the provisional
categorisation (control issues are not taken into account in the case of young offenders).




                                                                                                     15
A form RC1 must be completed at the time of recategorisation (even in urgent cases). This is
an open document. Prisoners serving determinate sentences (as opposed to lifers) do not
have the right to make representations prior to recategorisation but have the right to appeal
within the internal complaints system. The law is well settled in this area. Any public law
challenge will usually be on the basis of an irrational / unreasonable decision.

The purpose of recategorisation is to ensure that a prisoner does not remain in a higher
category than necessary. For prisoners serving very long sentences, movement through the
prison estate is essential if the Parole Board is to be satisfied that the prisoner is ready for
release at the appropriate stage.

Allocation to an appropriate prison is the next stage after recategorisation.


Deportation and Recategorisation

As a direct result of the recent political revelations about “foreign criminals”, it would seem
that foreign prisoners who are currently being held in open conditions (Category D) and
who are coming up to their release date are being suddenly recategorised upwards (usually
after being served with deportation notices). Any public law challenge to that
recategorisation will depend on the particular facts and should be considered against the
background of the recent media reporting of 11 “foreign” escapees from Ford open prison.
It is potentially legitimate for the prison service to consider that a prisoner is more likely to
escape once he has been served with a deportation notice and therefore review his security
status. Of course if a prisoner has always been at real risk of being deported and has
nonetheless been held in low security conditions, sudden recategorisation upwards as a
response to the current political climate may well be unlawful.

The most fruitful form of challenge is likely to be on proportionality grounds. For example,
if a prisoner is being held in open conditions with a temporary release licence (to go out to
work in the community or on home leave), it may be that a proportionate response would be
to revoke such a licence rather than just recategorise upwards.

If deportation is successfully challenged, then a prisoner should be returned to his original
security status.

What advice should be given to a prisoner who has been recategorised because of his
immigration status?

       Check that the deportation itself is being challenged through immigration solicitors
       Obtain a copy of the form RC1 to see how recategorisation has been justified by the
        prison before advising further
       Advise prisoner to make immediate use of the internal complaints system
       If the claim has merit, write a letter before action in line with the JR protocol
       As far as I am aware two judicial review claims on this issue (I am unaware of the
        exact facts) have been lodged by Bhatt Murphy solicitors and it may be prudent to
        await the outcome of those before proceeding with a JR


                                                                                              16
Maya Sikand
Garden Court Chambers
30th May 2006




                        17
                       IMMIGRATION DETENTION
     1. Where are the immigration powers of detention to be found ?
     2. What categories of foreign nationals can be detained under immigration
        legislation ?
     3. What changes are proposed to the above powers of immigration detention ?
     4. Is everyone who falls within the above powers of detention automatically
        detained by the immigration authorities ?
     5. The above powers of immigration detention seem very broad; can everyone
        who, on the face of it, appears to fall within the above categories be detained
        lawfully ?
     6. What procedures must officers go through in order to effect immigration
        detention ?
     7. What about the detention of ‘suspected international terrorists’ ?



WHO CAN BE DETAINED UNDER THE IMMIGRATION POWERS ?

1.       Where are the immigration powers of detention to be found ?

The powers of immigration detention are contained in the following four pieces of
legislation:

        paragraph 16, Schedule 2 and paragraph 2, Schedule 3 to the Immigration Act 1971 –
         these are the main detention powers and they apply to „port‟ cases; illegal entrants
         and deportees;

        section 10(7) Immigration and Asylum Act 1999 – this applies the 1971 Act powers
         to „administrative removal‟ cases (overstayers etc.);

        section 62 Nationality, Immigration and Asylum Act 2002, which gives the „Secretary
         of State‟ powers to detain in certain cases where, previously only the immigration
         service could detain - this only affects who can authorise the detention – it does not
         change who can be detained;

        section 71(3) Nationality, Immigration and Asylum Act 2002 – this gives a power to
         detain asylum-seekers who have existing leave in the UK.

For the precise categories of people covered by the above powers, see below.




                                                                                            18
2.      What categories of foreign nationals can be detained under immigration
legislation ?

Foreign nationals falling into any of the categories below may, in principle, be detained
under immigration powers. Note: the legislation which grounds each of the stated powers is
given in brackets after the

Port cases

   Persons arriving in the UK may be detained pending their examination to establish
    whether they can be admitted, and pending a decision as to whether to admit them
    (Immigration Act 1971, Sch 2, para. 16(1); Nationality, Immigration and Asylum Act
    2002, s62(2)(a)(b)).

   Those who arrive in the UK with leave to enter given to them before they arrive, but
    whose leave is then suspended by an immigration officer, may be detained pending their
    examination by an immigration officer and pending a decision on whether to admit them
    or to cancel their leave (Immigration Act 1971, Sch 2, para. 16(1A)).

   Those refused leave to enter, those reasonably suspected of having been refused leave to
    enter, and those reasonably suspected of being the family member of a person refused
    leave to enter, may be detained pending a decision on whether to give directions for their
    removal, and pending their removal after removal directions have been given
    (Immigration Act 1971, Sch 2, para. 16(2) as amended by s73(5) 2002 Act from 10
    February 2003; Nationality, Immigration and Asylum Act 2002, s62(1)(a)(b), (2)(c)(d))

Illegal entrants

   Illegal entrants, those reasonably suspected of being illegal entrants, and those reasonably
    suspected of being the family members of an illegal entrant, may be detained pending a
    decision on whether to issue removal directions, and pending their removal after
    removal directions have been given (Immigration Act 1971, Sch 2, para. 16(2) as
    amended by s73(5) 2002 Act from 10 February 2003; Nationality, Immigration and
    Asylum Act 2002, s62(1)(a)(b),(2)(c)(d))

Administrative removal cases

   Those who overstay their leave in the UK; those who breach any of their other
    conditions of leave (for example working in breach of a restriction or prohibition
    employment or self-employment); those who used deception in trying to obtain leave to
    remain (whether they got leave or not); those whose indefinite leave is revoked as a
    result of their ceasing to be a refugee; those who are family members of a person who
    has been given directions for removal because they fall into any of the last four
    categories; and anyone who is „reasonably suspected‟ of falling into any of the last five
    categories. All of these people may be detained pending a decision on whether to remove
    them, and pending their removal after removal directions have been given (Immigration
    and Asylum Act 1999 s10(1)(a)(b)(ba)(c),(7) as amended by section 74 and 76(7) 2002


                                                                                             19
    Act from 10 February 2003; Immigration Act 1971, Sch 2, para. 16(2); Nationality,
    Immigration and Asylum Act 2002; s62(1)(a)(b),(5)).

Crews of ships and aircraft

   Members of the crews of ships or aircraft who remain beyond the leave granted to
    enable them to join their ship or aircraft, or who intend to remain beyond that leave, or
    those who abscond (or intend to abscond) having lawfully entered without leave, or
    anyone who is reasonably suspected of being in any of those categories. They may be
    detained pending a decision as to whether to remove them, and pending their removal
    after removal directions have been given (Immigration Act 1971, Sch 2, para. 16(2),
    Nationality, Immigration and Asylum Act 2002, s62(1)(a)(b))

Asylum-seekers with leave

    Those who claim asylum (including an Article 3 ECHR claim) at a time when they have
     leave to enter or remain, and who breach a condition imposed on them as to residence,
     reporting or occupation. Dependants of asylum-seekers who fall into this category may
     also be detained (Nationality, Immigration and Asylum Act 2002, s71 read with Sch 2,
     para 16 1971 Act). Important note: other asylum-seekers may be detained when (as is likely) they
     fall into the other categories set out above and below.


Notice of intention to make a deportation order

   Persons who have been given notice of intention to make a deportation order, pending
    the making of the deportation order (note the distinction between the „decision to make
    a deportation order‟ and the making of a deportation order; see further the section below
    on deportation; note also the proposed change as to when persons may be detained
    when the notice is „ready‟ to be given to them). The following people may be given a
    notice of intention to make a deportation order and detained under this power: those
    whose presence is not „conducive to the public good‟; those who are recommended for
    deportation following conviction for an offence by a criminal court; and the family
    members of persons who are, or who have been, ordered to be deported (Immigration
    Act 1971, Sch 3, para. 2(2) as amended by: (a) s114(3) and Sch 7, para. 7 of the 2002 Act
    from 1 April 2003 (and note also s3(5)(6) 1971 Act and s82(2)(j) of the 2002 Act); (b)
    s34(2) 2004 Act from 1 October 2004).

Recommendation for deportation

   Persons who have been issued by a criminal court with a recommendation that they be
    deported following their conviction for a crime, unless the criminal court that made the
    recommendation (or the criminal court dealing with an appeal against the conviction or
    the recommendation) has directed that they be released. These people may be detained
    „pending‟ the making of a deportation order (Immigration Act 1971, Sch 3, paras 2(1),
    (1A) as amended by s34(1) 2004 Act from 1 October 2004).



                                                                                                  20
Deportation orders

    Persons who have a deportation order in force against them, may be detained pending
     their removal or departure from the UK (note that family members can be issued with a
     deportation order after they have received notice of intention to deport – see above). If a
     person is already detained under the powers above for deportees when the deportation
     order is made, then they „shall‟ continue to be detained unless the Secretary of State
     directs otherwise, or unless they are released on bail (Immigration Act 1971, Sch 3, para.
     2(3)).

3.         What changes are proposed to the above powers of immigration detention ?

There is one important change to detention powers which is contained in section 53
Immigration, Asylum and Nationality Act 2006 (which is not yet in force). This section
amends paragraph 2(4), Schedule 3 1971 Act to the effect that a person may be detained
when a notice of a decision to make a deportation order is ‘ready to be given’ to them
although they have not yet been served with it (potentially because the person could not
be served through lack of availability – see the way in which the existing power is framed
above).

4.     Is everyone who falls within the above powers of detention automatically
detained by the immigration authorities ?

No. The Home Office has detailed policy as to who will and who will not be detained.
The policy is set out in different policy documents/materials and is too detailed to set out
in full here. It is, however, set out in full in the JCWI Handbook (2006 Ed), pps905-917.
The original sources for Home Office detention policy which are drawn on there are:

     (1)    the Operational Enforcement Manual (OEM), Chapter 38 in particular, available
            on the Home Office (IND) website under ‘law and policy’;

     (2)    Form IS 91R (pro forma ‘reasons for detention’ notice);

     (3)    various other letters and statements.

Separate detention policy on particular categories is dealt with at the following pages of
the JCWI Handbook:

     (1)    fast-track asylum determination purposes (Oakington, Harmondsworth, Yarl’s
            Wood, pps673-81);

     (2)    age dispute cases (688-91);

     (3)    immigration detention in prisons and prison cells (pps 936-8 and 912).

Immigration detention in breach of Home Office policy is unlawful as a matter of public
law (see further the section immediately below).


                                                                                             21
5.     The above powers of immigration detention seem very broad; can everyone
who, on the face of it, appears to fall within the above categories be detained
lawfully ?

No. While at first sight the powers look very broad, they are in fact limited by:

   (1)     the narrow way in which the courts will interpret the powers, for example the
           construction of the term ‘pending’;

   (2)     Article 5 ECHR (the right to liberty and security).

If the person falls appears to fall within any of the above categories in respect of which
there is a power to detain, the following is a further check-list to see whether there is in
fact a power to detain them (there is only room for the briefest of details):

Non-statutory purpose. Detention may only be used for the statutory immigration
purpose (eg ‘pending’ examination, an immigration decision, removal, deportation); it
cannot be used for any other purpose (Hardial Singh [1983] Imm AR 198). If the real
reason is not the statutory purpose (or is no longer the statutory purpose, see Khadir
[2005] UKHL 39 at para 32); or there is no real prospect of carrying out the immigration
action (see Tan Te Lam; Khadir at paras 4, 32-3), the detention will be unlawful.
However, the detention does not have to be necessary in order to carry out the statutory
purpose, it must simply be effected for the statutory purpose (Saadi & Others [2002] 1
WLR 3131, para 24).

Statutory conditions not satisfied. The person simply does not fall within the
circumstances described in the legislation on the basic facts of their case. To take a stark
example, there is no immigration power to remove a British citizen and so detention for
the purposes of such removal would be unlawful. However, many of the powers are
triggered on the grounds of ‘reasonable suspicion’ (see above). But this means that there
must be (1) a genuine suspicion; (2) there must be objective, reasonable grounds for the
suspicion (O’Hara –v- Chief Constable of the RUC [1997] AC 286).

Detention ‘unlawful’ under Article 5(1) ECHR.         There must be a clear, accessible,
domestic law that underpins the detention.

Detention not for a purpose permitted by Article 5(1)(f) ECHR. Article 5(1)(f) is the
particular ‘exception’ to the right to liberty and security which permits detention for
immigration reasons. Detention for immigration reasons can only be carried out:

           -       to prevent ther person effecting an unauthorised entry to the country
                   (first part, Article 5(1)(f))(see Saadi above);




                                                                                         22
           -       where ‘action is being taken with a view to [the person’s] deportation
                   or extradition’ (second part, Article 5(1)(f)) – deportation proceedings
                   must be in progress and deportation must be possible.

Even if there is a power to detain the person because (1) they fall within the categories of
those who can be detained; and (2) non of the above check-list points apply, the exercise
of the power in the particular case may be unlawful. The following is a checklist of when
decisions to exercise the power will be unlawful (there is only room for the briefest of
details):

Unreasonable length of time. The principles set down in Hardial Singh and confirmed
by the Privy Council in Tan Te Lam are: (1) a person may only be detained for as long as
reasonably necessary to carry out the immigration action for which the power is given;
(2) the immigration authorities must act with speed to ensure that the immigration action
is carried out within a ‘reasonable time’; (3) if it appears that the purpose cannot be
carried out within a reasonable time then detention will no longer be lawful.

Detention in breach of published policy. Detention in breach of Home Office published
policy will be unlawful (Nadarajah [2004] INLR 139 CA, paras 35-6, 54).

Unlawful policy. Detention based on a policy which is unlawful (for example because it
is arbitrary or irrational) will also be unlawful (Nadarajah at para 60).

Unreasonable/disproportionate detention. Detention which is disproportionate (for
example where the effect upon the individual is disproportionate to the immigration
interest in detaining) may also be unlawful: see Evans (No 2) [2001] 2 AC 19 HL pp38C-
E; Amirthanathan [2003] EWHC 1107 paras 50-1, 56, 60). Detention which is arbitrary
as being unpredictable as based on unknown/unpublished criteria will also be unlawful
(Nadarajah & Amirthanathan, paras 64-72). Detention which is carried out on the basis
of an inadequate/manifestly erroneous assessment of the facts relating to an individual
may also be unlawful (R (Mohamed) –v- SSHD [2002] EWHC 1530)

Failure to take into account relevant considerations. Detention without taking into
account relevant circumstances may be unlawful (ID –v- Home Office [2005] EWCA Civ
38 CA)

Failure to take into account a change of circumstances. Detention which is unlawful at
the outset may become unlawful due to a change in circumstances (R –v- (1) Special
Adjudicator; (2) Secretary of State ex parte B [1998] INLR 315).

If there is no power to detain, the detention can be challenged in the High Court by
habeas corpus and judicial review proceedings. If the exercise of the power is unlawful,
then it can be challenged in the High Court by judicial review proceedings. Decisions to
detain individuals on their merits can be overturned by bail proceedings before the
Asylum and Immigration Tribunal (see below in this briefing).




                                                                                         23
6.     What procedures must officers go through in order to effect immigration
detention ?

Reasons
Detainees have an immediate right to reasons under the ECHR (Article 5(2)).

In April 1998, Lord Williams of Mostyn, speaking for the government in the House of
Lords, accepted that the giving of written reasons improves decision-making (ie of as to
whether to detain) and stated that detainees:
“…will know and have at least a degree of moral consolation that their detention is not an
unthinking exercise of administrative power”.

The Detention Centre Rules 2001 require that detainees be given initial reasons for detention
and further reasons every month (rule 9). The Operational Enforcement Manual, also states
that, when a person is detained, written reasons should be given at the time of the detention
and at monthly intervals afterwards (OEM at Ch 38.6, 38.6.3, 38.7.1).

Since October 1999, immigration officers have served the initial written reasons for the
decision to detain in the form of a check-list (Form IS 91R). The form allows officers to tick
boxes to indicate the reasons for detention which apply in the particular case.

Detainees should also be told the power under which they are being detained, and they
should be told of their rights to apply for bail (OEM Ch 38.6.3). This is normally done by
providing detainees with Forms IS 98, IS 98A and Form B1 so that detainees can apply for
bail to the immigration authorities and/or to the AIT. The information given on all of these
forms should, if necessary, be translated to detainees when they are detained.

Reviews of detention
Although the OEM and the Detention Centre Rules refer to reasons being given monthly,
(above) it seems that reviews of detention should be more frequent. It states that reviews of
detention should take place „after 24 hours by an Inspector and thereafter, as directed,
usually weekly by an Inspector‟. Detention should also be reviewed at the point of any
change of circumstances. Detention is reviewed by a CIO or Inspector at 28 days and at
higher levels up to Director level after 12 months (OEM at Ch 38.8).

7.      What about the detention of ‘suspected international terrorists’ ?
In addition to the above powers, until 14 March 2005 there was a power to detain foreign
nationals whom the Secretary of State had certified as being a risk to national security, and
who were suspected of having connections to international terrorism (Anti-terrorism, Crime
and Security Act 2001). Such persons could be detained in any of the normal circumstances
given under the 1971 Act. These powers allowed a person to be detained indefinitely even
though they could not be removed from the UK. This meant that the powers were contrary
to Article 5 ECHR (which allows detention that is with a „view to deportation‟). Therefore,
the government had to „derogate‟ from Article 5 ECHR. It purported to do so on the
grounds that, following the 11 September attacks, there was a „public emergency‟, in the
form of a terrorist threat to the life of the nation.




                                                                                           24
In A others v SSHD, the House of Lords held that the powers under the 2001 Act were
unlawful: they were not a rational or proportionate response to the threat faced. In
particular, the Lords found that the powers were unjustifiably discriminatory. This was
because they could only be used against non-nationals, when the terrorist threat came from
both non-nationals and nationals. Following this decision, the relevant provisions of the
2001 Act were repealed.1 In their place, the Prevention of Terrorism Act 2005 brought in a
whole range of powers called „control orders‟, which are aimed at preventing people from
taking part in terrorist-related activity. These powers include taking away people‟s liberty, but
they apply to British citizens as well as foreign nationals.

Duran Seddon
Garden Court Chambers
30th May 2006




1
 Section 16 Prevention of Terrorism Act 2005 repealing sections 21(1)-(5), 23 of the Anti-terrorism, Crime
and Security Act 2001


                                                                                                       25
                                IMMIGRATION BAIL
   1.      Right to seek bail
   2.      Who do I make the application to?
   3.      How do I make the application?
   4.      What conditions can be imposed?
   5.      Sureties/Recognisance
   6.      Taking instructions in bail cases
   7.      Accommodation
   8.      How do I challenge the lawfulness of detention?
   9.      National security cases


1.       Right to seek bail
The right to seek bail is contained in Schedule 2 of the 71 Act, the 1996 and the 1999 Act. It
arises in the following circumstances:


    i)         new arrivals detained for more than 7 days pending examination (Schedule 2
              paragraph 22(1)(a)(1b) as amended by Schedule 2 paragraph 11(1)-(3) of 96 Act);
    ii)        those whose leave to enter is cancelled or leave to enter is refused (paragraph
              22(1)(aa), Schedule 14 para 63 of the 99 Act);
    iii)       suspected illegal entrants and overstayers pending the giving of directions;
              (22(1)(b))
    iv)        following a decision to deport; (22(1)(b)
    v)         following a recommendation for deportation or a deportation order now that
              s.54 of 99 Act comes into force.
    vi)        pending appeal except where the appeal is in respect of human rights issues and
              the person has been recommended for deportation following criminal
              conviction.
    vii)      on an application for judicial review as part of interim relief.
    viii)     by the Court of Appeal on appeal from the IAT.

2.          Who do I make the application to?
Bail applications may be made to a Chief Immigration Officer, or to an immigration judge.
Therefore if the Immigration Service refuse to grant your client temporary admission or bail,
they have a right to apply for bail to an immigration judge.




                                                                                           26
3.      How do I make the application?
Part V, paragraphs 31-36 of the Immigration and Asylum (Procedure) Rules 2003 now
makes specific provision for bail applications before the IAA. The rules require detailed
grounds in support, together with advanced service of a bail address and surety details
(though the provision of the latter is not a pre-requisite under the rules), and similarly
envisages service of the Respondent‟s Bail summary by 2.00pm the day prior to the bail
application provided adequate notice was given.

4.      What conditions can be imposed?
An immigration judge may release your client on bail subject to conditions (similar to those
an IO may impose). This will include reappearing before the immigration judge on at a later
hearing usually the full appeal hearing. Immigration judges can be expected to be
sympathetic to clients not attending every further hearing especially where they have to
travel some distance – but you may need to make clear at the hearing that your client has
maintained contact with you. The exception is where the hearing is a bail variation or
extension.

Remember at the bail hearing that the burden of proof in justifying detention lies, given the
presumption in favour of bail, on the Secretary of State to the balance of probabilities. The
immigration judge should give a reasoned decision, albeit that it is not in writing.

5.      Sureties/Recognisance
Sureties are put forward as potential guarantors that a person will answer their bail.

There is no requirement in law that your client provide sureties/recognisances Glowacka) ,
nor that there be any particular sum of money, nor that the money be in especially liquid
form (hence one might offer to stand on the basis of property rather than cash deposits in a
bank). The UNHCR in their 1999 Guidelines on Criteria and Standards Relating to the
Detention of Asylum Seekers make the point that asylum seekers should not be expected to
produce sureties willing to offer prohibitively high sums of money.

The standard Bail Form has spaces for two sureties, though there is no requirement that
there are a pair: you could offer more, or none. It will be necessary to supply the IAA and
IS/HO with their details so that the individuals in question, and their addresses, can be the
subject of investigation via the national police computer. Two days notice should be given to
the SSHD for this purpose.

Those with criminal convictions or insecure immigration status, or whose addresses have in
the past been associated with absconding, are unlikely to be accepted as sureties.

The sureties should always attend court – it will rarely be the case that non-attendance will
accepted (though it is not completely unknown for a formal declaration to suffice, taken
before an establishment figure). The surety should have proof of ID, address occupation,
financial status, immigration status (ideally British citizenship/Indefinite leave to remain) and
evidence of the address that is available to the detainee. Immigration judges prefer a surety
who is living with or near an applicant to ensure that are able to exercise a measure of


                                                                                              27
control over them. The surety should explain their relationship to the detainee, and what
level of contact they have had with them in the past, and intend to maintain in the future.

Recently arrived immigration detainees are not likely to know many people in the United
Kingdom. The Chief Adjudicator, alive to the likelihood that asylum seeker in particular will
lack contacts in the country, specifically drew attention to this factor in his Guidance Notes
for Adjudicators, published in September 2000.

The Churches Commission for Racial Justice for this reason set up the Bail Circle, an
association of people who are willing to introduce themselves to detainees and to stand
surety for them in bail applications.

If bail is granted, conditions will be fixed by the immigration judge. The attendance of the
sureties may be waived for the next occasion, so long as they provide letters explaining their
absence and indicating their continued acquiescence in the original bail conditions. In our
ethics chapter (Chapter 12, paragraph 14) we deal with the possibility of issues arising under
money laundering regulations from holding money for sureties. The applicant must attend
on the next occasion.

If your client doesn‟t attend the sureties risk forfeiting all or part of their recognisance. You
must explain this to the sureties, who may be liable even though they have done their best to
avoid such an event (this advice would be prudently given in writing, and care should be
taken over any conflicts of interest that might ensue). Large sums were sometimes required
by Adjudicators (or CIOs) – indeed at one time £5000 was not uncommon. In order to
ascertain the surety‟s appreciation of the situation, the immigration judge may question the
sureties to see if their confidence in the your client meeting his bail was well founded,
whether they monitored compliance with bail conditions and whether they suspected any
failure to comply.

6.     Taking Instructions in Bail Cases
With the detainee client, ensure you cover the following ground:

     The detention criteria issues listed already, in so far as relevant to the facts of the case
      in hand.
     Ensure that the facts that are said to give rise to a power to detain are truly
      established – eg was the person working in breach of conditions, and/or are the
      Immigration Service right to say they have overstayed their leave? Do they have an
      entitlement to remain in the UK under a Home Office policy?
     Ensure that any referrals are made that are shown to be necessary by the instructions
      – eg for mental or physical health care.
     Ensure that instructions are taken in a way that recognises any vulnerability of the
      client.
      In addition, explain –
     a late claim for asylum and failure to approach the authorities at the border
     a failure to claim asylum from the moment contact made with the authorities.




                                                                                               28
And ensure
     willingness to ensure compliance with reporting/residence conditions (and
      understanding that a failure to comply might have adverse implications for future
      immigration applications to the UK); you could suggest possible reporting regimes to
      clarify this.
     client understands that sureties could lose their money in the event of absconding.

With the sureties, ensure you have information regarding

     Criminal convictions (especially offences of dishonesty or related to immigration)
     Financial situation, including expenses and income – any recent large transactions
      into their account should be explained. Liquidity of assets – they may have to deposit
      the money in question; and can they deal with its forfeiture. Evidence of support and
      accommodation arrangements. Ensure any money comes from sources that do not
      raise questions of ethics or criminal immigration offences
     Plans regarding any trips abroad or other engagements which might impact on the
      effectiveness of their being surety, or their ability to support subsequent extensions
      of bail.
     How they know, and how they intend to maintain contact with, or control over, the
      applicant

7.       Accommodation
It is extremely difficult to obtain bail without an accommodation address. The main source
of accommodation currently are the organisations like Refugee Council and Refugee Action
who provide accommodation prior to entry into the NASS system.

In those cases in which asylum-seekers are offering accommodation, the landlord or social
service which provided the accommodation must be contacted for written agreement to
accepting the bail applicant should s/he be released.

It is important to identify the nearest police station to the accommodation address as in
most cases bail is granted with reporting conditions at the local police station.

8.     How can I challenge the lawfulness of detention?
Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 enunciated
some principles regarding lengthy detention.

    "First, the power can only be exercised during the period necessary, in all the
    circumstances of the particular case, to effect removal. Secondly, if it becomes clear that
    removal is not going to be possible within a reasonable time, further detention is not
    authorised. Thirdly, the person seeking to exercise the power of detention must take all
    reasonable steps within his power to ensure the removal within a reasonable time."



                                                                                             29
Detention for purposes of immigration control is provided by United Kingdom law. If it
would not be possible to actually remove or deport the person from the United Kingdom
then the detention would be unlawful, something that might be demonstrated by lengthy
detention whilst unsuccessful attempts are made to remove an individual: see in re Wasfi
Suleman Mahmod [1995] Imm AR 311. See Simon Brown LJ in the Court of Appeal in R v
Secretary of State for the Home Department ex parte Applicant I [2002] EWCA Civ 888:

    “Given, as stated, that the appellant had by then been in administrative detention for
    nearly 16 months and that the Secretary of State could establish no more than a hope of
    being able to remove him forcibly by the summer, substantially more in the way of a risk
    of re-offending (and not merely a risk of absconding) than exists here would in my
    judgment be necessary to have justified continuing his detention for an indeterminate
    further period.”

Applications in such cases may be run by way of habeas corpus application, which is made in
the Administrative Court, or in the course of judicial review proceedings.

There is judicial support for the notion that whereas immigration judges are to consider the
correctness of the exercise of the power to detain (via the factors set out above, paragraph 3.1
onwards), the lawfulness of the exercise of the power is a matter for the Administrative Court
alone. Thus Collins J stated in R v Secretary of State for the Home Department ex parte Konan [2004]
EWHC 22 Admin:

    “An adjudicator in considering a bail application is not determining (indeed, he has no
    power to determine) the lawfulness of the detention.”

However many arguments may be relevant under both the lawfulness of detention and its
correctness – eg a lengthy detention is something which might eventually make detention
unlawful, but it is also a relevant consideration as to the correctness of detention in all the
circumstances.

Habeas Corpus
Where the issue is one of lawfulness of the detention a writ of habeas corpus can be applied
for. This has a higher priority over judicial review with respect to listing of the hearing and a
refusal of the writ is potentially appealable to the House of Lords whereas a refusal by the
Court of Appeal, on a renewed application, to grant permission to apply for JR is not.

9.     National Security Cases
Under the NIA 2002, the SSHD may certify that it is believed that the person‟s presence in
the United Kingdom is a “risk to national security” and that it is suspected that the person is
connected to international terrorism. On certifying an individual is such a person the
immigration service may take removal action.

The government has found it necessary to derogate from Article 5 ECHR for the duration
of this legislation.



                                                                                                 30
These powers have been interfered with by the ruling by Britain‟s highest court, the Law
Lords, that the indefinite detention of foreign terrorism suspects is incompatible with the
Human Rights Act and the European Convention on Human Rights (ECHR) (article 14 of
the ECHR). Indefinite detention was found to discriminate on the grounds of nationality
because it applies only to foreign nationals suspected of terrorism, despite a comparable
threat from terrorism suspects with British nationality. They also held that the suspension of
human rights was unjustified because indefinite detention powers that apply only to some of
those who pose a threat cannot be said to be “strictly required”.

Terrorist legislation gives the Home Secretary powers to make control orders with a range of
conditions, including a ban on internet or mobile phone use, restrictions on movement and
travel, restrictions on associations with named individuals, curfews and tagging.

The Home Secretary has stressed that prosecution remains the Government‟s preferred way
of dealing with suspected terrorists, but where this was not possible control orders would
provide a valuable tool in disrupting and preventing terrorist-related activity.

The orders would be made by the Home Secretary, but would be subject to independent
judicial oversight.

Key features include:

      - independent judicial scrutiny of decisions to impose control orders, including the
      hearing of evidence in open and closed session by the High Court, with the interests
      of the subject of the order represented by a special advocate in closed session;

        - breach of a control order would be a criminal offence – triable in the criminal
        courts and punishable by imprisonment;
     - regular reporting to Parliament on orders made; and
     - independent annual review of the powers.

The orders would apply to British and foreign nationals suspected of any terrorist-related
activity.

Liberty‟s briefing on these Orders states

   ”Control orders„, as currently outlined, fail adequately to address the underlying human
   rights objections to detention without trial under Part 4 of the Anti-Terrorism, Crime
   and Security Act 2001.The ultimate objection is to the complete abrogation of the right
   to a fair trial and the presumption of innocence in particular
   1- Unending restrictions on liberty (up to and including detention) based on suspicion
   rather than proof.
   2- Reliance upon secret intelligence (which by definition may be all the less reliable for
   having been gained by torture around the world)
   3-The complete inability of the subject to test the case against him in any meaningful
   way .



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   The House of Lords Appellate Committee found ”judicial supervision” of the 2001 Act
   (the Special Immigration Appeals Commission and the use of Special Advocates)
   inadequate remedy for the fundamental defects of detention without trial. Similar
   attempts to provide ”judicial supervision„, appeal or review of control orders will also
   operate as political palliative rather than real cure for a process built on secret
   intelligence and suspicions which never solidify into charges or proof.

Mark Symes
Garden Court Chambers
30 May 2006




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