UK immigration deportation: Detainees awaiting deportation have rights to a regular reviews

UK immigration deportation: Detainees awaiting deportation have rights to a regular reviews

Rozo-Hermida, R (on the application of) v Secretary of State for the Home Department[2011] EWHC 695 (Admin) (23 March 2011) The claimant had finished serving a prison sentence for rape. Had he been British, the claimant would have been released. However, because the claimant was a non-EU foreign national and subject to a deportation order, it was open to the Secretary of State for the Home Department (SSHD) to detain the claimant under the Immigration Act 1971.

Detainees awaiting deportation can be held in Immigration Removal Centres (IRCs) or in prison (under Paragraph 18(1) of Schedule 2 to the 1971 Act). The claimant has been held in prison since 2005, when he was convicted. IRCs are different from prisons in that prisoners in IRCs can have longer visiting times and mobile phones. The claimant applied to be transferred to an IRC

Although the government had previously operated an outright ban on moving previous sex offenders to IRCs on completion of their prison sentences, a process of reviewing each individual case was in place by the time the claimant was seeking to be moved from prison to an IRC.

In terms of reviewing the location of a prisoner's detention, the Ashingdane principle is crucial. Article 5(1) ECHR requires that there must be a relationship between the ground of permitted deprivation of liberty...and the place and conditions of detention' (Ashingdane v UK [1985] 7 EHRR 528; Aerts v Belgium [2000] 29 EHHR 50; Mayeka v Belgium [2007] 1 FLR 1726).

There is case law to justify holding foreign nationals awaiting deportation in prisons, rather than in IRCs (R (T) v SSHD [2007] EWHC 3074 (Admin); R (Chaboub) v SSHD [2009] EWHC 1989 (Admin); R (MacFarlane) v SSHD [2010] EWHC 3081 (Admin)). However, in light of the Ashingdane principle, and the government's policy of review, the claimant in this case should have been subject to a review. It should not have been deemed inappropriate to transfer him to an IRC automatically.

The claimant in this case was automatically categorised as unsuitable for transfer for the following reasons. The official conducting the review wrongly believed that no registered sex offender could be transferred to an IRC in any event. The official took the fact that the claimant was registered on a sex offenders' register to be an indication that the trial judge had deemed the claimant to be a lifelong threat to women. However, the entering of someone convicted of a sexual offence is automatic, and unrelated to the sentence that person receives. The claimant's good behaviour during his four years in prison was counted as a factor in favour of him remaining in prison. This was flawed reasoning.

Although it is always open to officials to find that the risks of transferring to an IRC someone who has in the past committed a serious offence, and is then awaiting deportation, each detainee must be subject to an initial assessment and regular reviews thereafter (R (AE)(Libya) v SSHD [2011] EWHC 154 (Admin)).

The decision was quashed and the SSHD was directed to give the claimant a proper review.

For further information or a case specific evaluation, please contact one of our lawyers on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk.

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