Detention ruled unlawful since no realistic prospect of Zimbabwean authorities accepting enforced removals; Court condemns disclosure conduct.

04.02.16 | |

The Administrative Court (Garnham J) has handed down its reserved judgment in R (Babbage) v SSHD [2016] EWHC 148 (Admin). The Claimant, represented by Mark Henderson and Jed Pennington at Bhatt Murphy, had won a final order from the Court on 15 December 2015 for his release from detention by the Home Secretary. Judgment was then reserved for further investigation into breach of disclosure duties by those acting for the Home Secretary.

In his judgment, the Judge stated that:

"1. The Claimant is a Zimbabwean national, with no right to remain in the UK, who has committed serious offences in this country and whose home country will only accept returning nationals if they have a passport or wish to return....  t is my judgment that the Claimant would be likely, if released, to abscond and to commit further offences. The question which arises here is whether the Home Secretary can justify the Claimant’s continued detention when he has made it clear he will not agree to his return home. "

The judgment first addressed very serious disclosure failings and gave emphatic guidance to the Home Secretary and Government Legal Department (GLD) as to future conduct of disclosure. The Judge said that:

"13. I confess to having been extremely concerned about the attitude of the Secretary of State, or alternatively her advisers, towards the supply of documents necessary for the resolution of this case. The Secretary of State, through her officials or advisers, was under a duty to disclose this material of their own volition. They did not do so. They were prompted to supply it by the solicitors for the Claimant. They did not provide them. They were ordered to provide it by Collins J. They failed properly to comply with that order. They were then ordered to provide specific, identified material, or an explanation of why they could not do so, by Picken J. They failed to comply with that order too."

The Court held that the Defendant breached the Court’s disclosure orders, inter alia, by redacting documents falling within classes subject to specific disclosure without making any application to the Court for permission to do so:

" 20. In particular, it is not open to the Secretary of State, or her advisers, to decide that some of the documents falling within the category made subject to the Order ought to be redacted to protect some interest of the Home Office or because they do not appear, to the Secretary of State, to be relevant to the issues in the case. The Order of the Court determines relevance and disclosability."

The Court concluded that:

“This case concerned allegations of unlawful detention. In such cases, an especially careful approach is necessary, by those acting for the Secretary of State, to issues of disclosure. It is plain there was no such approach here. It strikes me as astonishing that more than 20 years after the decision of the House of Lords in M v The Home Office [1994] 1 A.C. 377, it should be necessary to set out what are, in truth, elementary principles of constitutional law. But it seems it is…  These fundamental principles should be at the forefront of the mind of those advising the Secretary of State." (para 22-24)

The judgment recorded that the GLD made “a fulsome apology to the Court, confirming that training in duties of disclosure was provided to those responsible for cases such as this, and indicating that "a review of disclosure in all claims ...  which challenge use of the power of detention”  had been initiated” (para 25). Natalie Lieven QC, acting for GLD at a further hearing to investigate disclosure failings, assured the Court that the GLD continues to act according to the Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings [2010] JR 177, and has no internal policy or practice departing from it. The Court ordered that the Defendant pay on the indemnity basis, inter alia, the costs "occasioned by the failure of the Government Legal Department to comply with the duty of candour and the disclosure orders made by the court".

The Court went on to address the substantive judicial review as to the current lawfulness of current detention, and disposed of a number of issues of importance in the course of its judgment:


  • The Court considered that there was no realistic prospect for the foreseeable future of the Zimbabwean Government agreeing to accept enforced removals from those who did not hold a current passport: "The Zimbabwean authorities’ position has been made clear over a prolonged period; they will not accept the return of those who do not hold a current passport other than from those willing to go back. There is nothing to suggest that stance is likely to change in the foreseeable future…" (para 95)
  • Where, as here, the Court considers that release carried significant risks of absconding and harm to the community, "Those risks go to, and may have a very significant effect upon, what is to be regarded as a reasonable period of detention prior to the proposed removal. But the acid test is always whether there is a realistic prospect of effecting a return." (para 90, emphasis added)
  • The Home Secretary contended (as she regularly does) that she was entitled to maintain detention on the basis that she was acting expeditiously to have the Claimant prosecuted for failing to co-operate with his removal under s.35 of the Asylum and Immigration Act 2004. However, the Judge held that this was not a lawful purpose for which to maintain detention: "74. I cannot see how it can conceivably be said that pursuit of the possibility of prosecution under Section 35 can justify the Claimant’s detention. The first principle set out by Lord Dyson in Lumba was that the Secretary of State can only use the power to detain for the purpose of deporting the person concerned. If the true purpose for detaining him was to prosecute him under Section 35, that was not a lawful exercise of the power".
  • The Court in any event rejected the Home Secretary's case that the Claimant could be prosecuted under s.35 for refusing to sign a declaration, or confirm when asked by his Embassy, that he intended to return, if that declaration would be untrue: "75... The Claimant was being asked to sign a document indicating that he intended to leave the United Kingdom. If, in truth, he did not intend to leave the United Kingdom he could not properly be required to sign the voluntary disclaimer; or to put it another way, he would have a reasonable excuse for not doing so."

The judgment can be found here.

A briefing note can be viewed here.

Press coverage can be viewed here.

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