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FOURTH SECTION

Application no. 25315/09
Hamza Ali FARADOON
against the United Kingdom
lodged on 7 May 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Hamza Ali Faradoon, is an Iraqi national who was born in 1982 and lives in Croydon.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant entered the United Kingdom on 15 May 2001 and claimed asylum upon arrival. His asylum claim was refused on 11 September 2001; however, because he was a minor the applicant was granted exceptional leave to remain until 11 September 2005. The applicant sought indefinite leave to remain on 2 November 2005; however, whilst his application was pending, he was convicted on 11 October 2006 of unlawful wounding, for which he was sentenced to 2 years and 11 months’ imprisonment.

He was notified of his liability to deportation on 3 May 2007, and served with a notice of intention to make a deportation order and refusal of his application for indefinite leave to remain on 20 September 2007, following the consideration of representations from the applicant. It was noted that, in refusing his original asylum claim, the Home Office had found that his claims regarding his political activities related to the very lowest level of involvement and that the Iraqi authorities would not be interested in him. Furthermore, there had been a regime change since he had left his country of origin. It was not accepted that a general climate of instability in his home region of Kirkuk gave rise to a real risk under Articles 2 or 3. Finally, it was noted that the sentencing judge had found that the applicant posed a significant risk of serious harm to the public. The applicant did not appeal against this decision and on 7 January 2008, was served with a deportation order.

The applicant’s prison sentence expired on 21 October 2008 but he remained in prison pursuant to the deportation order. He was transferred to an immigration detention centre in April 2009.

Following a country guidance case on Iraq, the applicant’s case was given further consideration and he was served with a fresh liability to deportation letter on 23 October 2008, in response to which he raised issues which were considered to amount to a fresh asylum claim. His asylum claim was refused on 15 February 2010 and on 16 April 2010, he was served with a fresh decision to make a deportation order. His appeal against this decision was heard on 13 May 2010 by the Asylum and Immigration Tribunal.

The Immigration Judge noted the major discrepancies between the applicant’s oral evidence and his various written statements, and found that these cast serious doubts on the veracity of the applicant’s account. He was not found to be credible. The most glaring of his inconsistencies was the fact that he had variously stated that he had escaped from prison prior to his departure from Iraq and had produced arrest warrants purportedly relating to this escape but had then denied that he had ever escaped from prison. The documents he had submitted were not reliable. The applicant had “inappropriately elaborated upon an already fabricated claim.” In the event that the applicant was telling the truth, which was not believed, it was considered reasonable for him to relocate to the Kurdish Regional Government area of Iraq (KRG), which was relatively stable. Background evidence indicated that internally displaced Iraqis had free access to the KRG unless they were on a suspect list, which the applicant was not. The applicant did not have family life in the United Kingdom and his deportation would not interfere disproportionately with his private life.

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?

4.  Was the applicant lawfully detained throughout the entire period of his detention as “a person against whom action is being taken with a view to deportation” within the meaning of Article 5 § 1(f)? Did the length of the detention exceed that reasonably required for the purpose pursued under Article 5 § 1(f)?