“Judge frees illegal immigrant sex offender in human rights shocker”. That’s a story. “Judge leaves failed asylum seeker in jail without charge for potentially two years or more.” That, apparently, is not a story. But it is worth looking at the case, not least to dispel the notion that unaccountable UK judges spend much of their time releasing foreign criminals at the drop of a cat because of the Human Rights Act.
The case is R (Abdulrahman Abunasir) v Secretary of State. Abunasir had been released from an 18-month sentence for an attempted sexual assault by digital penetration, a “very serious and frightening sexual offence, committed against a young woman, while she was on her own in the street, by a man unknown to her and who had been in the country in all probability less than a fortnight” in April 2013.
While in jail he made an asylum claim saying he was a refugee from Syria. Langage tests suggested he might actually be from Egypt. Bio tests did not. Served with a deportation notice he argued in November 2013 that he could not be returned to Syria “as to do so would breach the UK’s obligations under the Refugee Convention”. He completed his sentence on the 13 January 2014 and was immediately detained under s. 36(1) UK Borders Act 2007 pending a decision whether to deport him. He is held under The Immigration Act 1971 Schedule 3 para 2(1).
Abunasir thus fell into a common limbo: foreign nationals whom the government does not want to release onto the streets of Britain but who cannot be deported because of fear of torture back home, for example or simply because of the seriousness of troubles in their own country. Here there was no way of engaging with authorities amid the Syrian chaos to establish Abunasir’s claim to nationality. The result has been he has remained in jail for 18 months beyond his prison sentence. He was deemed as being of high risk of offending, likely to abscond and had no family ties in Britain. Much work was done by investigators and the probation service to resolve the issues – the possibility of release under probation or return to Syria under the Facilitated Return Scheme (which involves the individual disclaiming rights to pursue legal action, which Abunasir seemed for a time willing to do). To no avail.
This is the sort of case where habeas corpus should step in to release a man against whom there is no criminal charge, and indeed Abunasir’s case was based on several of the Hardial Singh principles (see below) in R (Hardial Singh) v Governor of Durham Prison – a habeas corpus case. The government in that case had simply failed to expedite Singh’s deportation (following sentences for burglary). In that case the judge said “as the power [to detain pending deportation] is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose”.
So the crucial principle states: “If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention.” A judge trying to established whether a reasonable period has passed or, crucially, whether there is a prospect of the deportation occuring within a reasonable period yet to elapse, must look at these matters:
“the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences” – Dyson LJ: R (I)-v-SSHD  EWCA 888.
So Abunasir’s lawyers argued that there is no prospect of removal within a reasonable period of time – and that “unreasonableness” here should take avccount of the 18 months in detention following the end of his sentence as well as any prospective period during which further inquiries and legal work would be done before he could be deported. They accepted that there was plenty of evidence that he was not Syrian but that his own obstruction of the process does not legally justify indefinite detention.
Counsel for the Secretary of State contended there was “no unexplained extended period of complete inactivity here that could constitute illegality” – in other words inquiries and other work were going on throughout the period of detention. Indeed the length of time involve spoke to the care with which each stage of the process was being considered.
In this case the judge, HH Clive Heaton QC, rejected Abunasir’s claim and noted: “In my judgment, faced with a difficult situation created by the obstruction of the machinery of removal by the Claimant, the Defendant [Home Office] has taken a series of steps to try to make progress. They have not succeeded to date, but to find illegality as a result of that lack of success would be to fall into the trap of applying hindsight.” Furthermore “the decision to deport is an important one, and the Defendant is entitled to take her time to think about it”.
On the Hardial Singh issue of reasonableness of the length of time detained he said: “I accept the Claimant’s submission that when looking at the reasonable period, and at what might be reasonable in the future, the time already spent in detention is a key consideration.” A period of 18 months requires careful scrutiny. However, “the Defendant has not failed to remove the Claimant through lack of diligence, but because it is difficult to do so”. The First Tier Tribunal had only the previous month found as a matter of fact that Abunasir was not Syrian and was likely to be Egyptian so the Home Office deserved the time to pursue this matter. The situation was not static with nothing happening and no avenues to pursue. Heaton also considered that Abunasir’s original offence was serious and there was a high risk that he might reoffend. It was difficult to see what bail conditions might counter that risk. Similarly the risk of absconding was also high. Obstruction and failure to engage in voluntary return can lead to the judicial measurement of a “reasonable time” being extended and did so in this case. There is a sufficient or realistic prospect of removal and the period in which the Claimant has been detained to date was within the reasonable period, so his case under limb ii of Hardial Singh (“deportee may only be detained for a period that is reasonable in all the circumstances” did not assist him; and similarly with limb iii.
The time would come, however, when detention has gone on so long that “this Court would expect to see in evidence a carefully crafted plan from the Defendant addressing the difficulties in this case and setting out what action she [the Secretary of State] intended to take so as to justify continued detention”. For now another six months at the outside should be enough for the Secretary of State to look at the matters that have arisen from the First Tier Tribunal – but more time still might be allowed depending on what is then thrown up.
Judge Heaton had a very difficult decision to make here but was guided by a set of principles that allowed him to accept the reasonableness of two years’ detention of someone against whom there is no charge – and potentially more before these matters get sorted out.
In considering the matter the judge noted that Abunasir presented a rather unattractive case, but:
“these cases are not decided on the basis of the Court’s like or dislike of a Claimant’s case, neither is immigration detention to be used as some form of second punishment for a criminal offence. These cases are decided on the basis of what is now well established law. That will mean that on occasion these Courts will come to decisions that the wider public will neither agree with nor understand, but the Court must put all of that out of its mind and concentrate on the forensic argument.”
That, in a sense, is an answer to the Daily Mail-type headlines about stories such as “dangerous Moroccan sex attacker allowed to cheat deportation”. The moral quality of the person involved is not relevant – though the possibility that they might reoffend while free and awaiting deportation is relevant.
There is strong pressure to change this presumption and instead of allowing judges to craft objective judgments based on legal precedent and principle, to introduce a subjective element: what is the judge’s view of the morality of the person. Should legal principles be interpreted quite so correctly, human rights extended quite so thoroughly for people who have done bad things?
That is the dangerous implication of the kneejerk condemnation of “unaccountable judges” – and it is likely to be at the heart of the Conservative “Bill of Rights” that seeks to overturn the principle that everyone is equal before the law for one that says some must be more equal than others.
On the draft Conservative Bill of Rights see: The State v the People
Note: The case of the Moroccan sex offender the Mail referred to is R (AB) v Secretary of State. An earlier part of this long-running case, at the Upper Tribunal in 2014, can be read here: R (on the application of AB) pdf
Hardial Singh principles
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 deportation within that reasonable period, she should not seek to exercise the power of detention;
iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.