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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cente Sheikh Noor Mohammed, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 1898 (Admin) (17 June 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1898.html Cite as: [2014] EWHC 1898 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy Judge of the High Court)
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The Queen (On the application of Cente Sheikh Noor Mohammed) |
Claimant |
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- and - |
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The Secretary of State for the Home Department |
Defendant |
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Mr Sarabjit Singh (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 14 February 2014
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Crown Copyright ©
Mr Ben Emmerson QC:
Introduction
The relevant factual history
(a) On 6 May 2010 he was convicted of two counts of criminal damage and sentenced to a community order together with an unpaid work requirement of 120 hours.
(b) On 13 January 2011 he was convicted of causing racially or religiously aggravated fear or provocation of violence using words or writing, and subsequently sentenced to 12 weeks imprisonment suspended for 12 months, and an unpaid work requirement of 150 hours. At the same time the sentence imposed following his conviction of 6 May 2010 was varied, due to his failure to perform the requirements of the community order. A sentenced of 12 weeks imprisonment suspended for 12 months was imposed, together with a supervision order, an unpaid work requirement of 150 hours and a 12 month requirement to attend a thinking skills programme.
(c) On 17 March 2011 the Claimant was convicted of failing to comply with the community order requirements of a suspended sentence order, and sentenced to 12 weeks immediate imprisonment.
(d) On 5 April 2011 the Claimant was convicted of common assault and sentenced to 84 days imprisonment[1].
(e) On 25 July 2011 the Claimant was convicted of using disorderly behaviour or threatening, abusive or insulting words, likely to cause harassment, alarm or distress. He was sentenced to one day's imprisonment.
(f) On 1 September 2011 the Claimant was convicted of having a bladed instrument in a public place and sentenced to four months imprisonment.
(g) On 24 May 2012 the Claimant was convicted of affray and sentenced to 5 months imprisonment.
(h) On 22 August 2012 the Claimant was convicted of using threatening abusive or insulting words or behaviour with intent to cause fear or provocation of violence, and theft. He was sentenced to a fine of £100 or 1 days' imprisonment (deemed served) for each offence.
(i) On 24 August 2012 the Claimant was convicted of common assault and sentenced to 20 weeks imprisonment.
(j) On 26 November 2012 the Claimant was convicted of common assault and sentenced to 18 weeks imprisonment.
(k) On 13 June 2013 the Claimant was convicted of possession of cannabis for which he was fined £50 and ordered to pay a victim surcharge of £20.
(l) On 5 December 2013 the Claimant was convicted of robbery and sentenced to 4 years imprisonment. He is currently serving this sentence.
The lawfulness of the first and second periods of detention
"(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 a reasonable period, he should not seek the exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal."
"109. But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only where there is also a risk of absconding. As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his reoffending will impede his deportation.
110. The risk of reoffending is, therefore, a relevant factor."
"Overall, I accept that as the period of detention becomes longer, so a greater degree of certainty and indeed proximity of removal is likely to be required. I accept also that there was no certainty that the litigation – the ECtHR proceedings and the application for revocation of the deportation order – would conclude in the Secretary of State's favour, and that it was not possible to predict precisely when they would conclude. However, I think that at all times it could be anticipated that those proceedings would be completed within a reasonable time, and that once they were concluded, if which might be the case the result was in the Secretary of State's favour, then there was no other obstacle to deportation. I think in the circumstances of this case, and taking account of the risk the Claimant presented of absconding and re-offending, that was sufficient."
"At the time of the receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but it was not apparent that they would drag on as they did. Nor was it apparent that the ECtHR's final decision would be such as to prevent the claimant's removal. I stress "apparent" because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain."
"I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or the period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. At the time of receipt of the Rule 39 indication in the Claimant's case, although it was not possible to say when the ECtHR proceedings would be concluded, there was none the less a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances."
Conclusion
Note 1 The Defendant's records indicated a further conviction for robbery on this occasion. However this was disputed by the Claimant, and the Defendant was not in a position to prove this conviction. Accordingly it has been disregarded for the purposes of this judgment. The claimant also disputes the Defendant's records of a conviction for the robbery and common assault at Southwark Crown Court on 23 May 2011. Again, and for the same reasons, this has been disregarded for the purposes of the present judgment. Otherwise the Claimant accepted the Defendant's record, set out in her skeleton argument, as accurate. [Back]