Despite the foregoing conclusions, the Tribunal found that the decision to make a deportation order against the applicant had been unlawful as the Secretary of State had failed to comment on the sentencing judge�s decision not to recommend deportation in the applicant�s case. The applicant�s appeal against deportation was therefore allowed, to the limited extent that the Home Office should reconsider the decision to deport in the context of the sentencing remarks. The Home Office appealed against this decision and the Upper Tribunal dismissed the appeal on 2 December 2010 on the basis that a fresh decision was to be reached by the Home Office. This decision was issued on 5 January 2011. It was considered that, despite the sentencing judge�s decision not to recommend deportation in the case of the applicant, his deportation was nonetheless conducive to the public good.
The applicant sought judicial review, which was refused on 7 March 2011 by the High Court, on the grounds that the applicant had no arguable case that his removal would be unlawful.
In parallel with the domestic proceedings concerning the lawfulness of the applicant�s proposed deportation, he also lodged an application for judicial review of the decision to maintain his immigration detention, which was still ongoing. His application was refused by the High Court on 25 May 2010, on the basis that he was lawfully subject to detention while the Secretary of State considered whether or not he was liable to automatic deportation as a foreign criminal. The fact that the applicant represented a high risk of reoffending and of absconding meant that his detention was fully justified. The applicant must have renewed his application at an oral hearing before the High Court, which was presumably refused; however, this decision has not been submitted to the Court. He then sought permission to appeal to the Court of Appeal, but this application was refused on 11 February 2011 as being totally without merit. The Court of Appeal considered that the applicant�s detention had been prolonged by his pursuit of false claims for asylum and humanitarian protection. He had committed a serious offence and it was to be presumed that, if released, he would abscond, given his unwillingness to return to Iraq. In the circumstances, his continued detention was justified.
The applicant sought interim measures from this Court to prevent his deportation to Iraq, which had been scheduled for 9 March 2011. On 8 March 2011, the Acting President of the Fourth Section decided to refuse the applicant�s request. However, his removal to Iraq did not proceed. On 23 June 2011, the applicant notified the Court that he had been released from immigration detention.
B. Relevant domestic law
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.
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.
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.
COMPLAINTS
The applicant complains under Article 5 of the Convention about the length of time he spent in immigration detention. He also claims that his deportation to Iraq would breach Articles 2 and 3 of the Convention.
QUESTIONS TO THE PARTIES
1. How long in total did the applicant spend in immigration detention?
2. Why did the applicant�s removal to Iraq not take place as planned on 9 March 2011?
3. Why was the applicant subsequently released from detention?