Rowan Pennington-Benton (instructed by Government Legal Department) for the Defendant
Upper Tribunal Judge Elizabeth Cooke sitting as a Deputy High Court Judge:
The Claimant is the subject of a deportation order made in 2018. He has now been in immigration detention for some 25 months. In this application for judicial review he seeks a declaration that his detention is unlawful, damages, and an order for his release. I am grateful to Ms Masood and Mr Pennington-Benton for their helpful arguments.
The factual background
The Claimant was born in 1977 and is a national of Jamaica. He entered the UK in July 2000 as a visitor with limited leave to enter until 15 January 2001. In January 2001 he applied for an extension of his stay as a student which was granted until 30 November 2001, when his leave expired. On 25 July 2002 he applied for leave to remain as a spouse of a British citizen; to jump ahead a little, that application was not determined until 2018, at the same time as the decision to deport the Claimant, by which time his marriage had been over for some years, since 2008 or 2009.
The Claimant was convicted of battery in 2005, for which he was sentenced to three months’ imprisonment, of possession of drugs in 2006, for which he received an 18 months’ conditional discharge, and again of possession of drugs in 2016, for which he was fined. He was also given cautions for four further offences of property damage, fare evasion and possession of drugs.
On 28 June 2017 the Claimant was convicted at Woolwich Crown Court of sexual assault and sentenced to 4 years imprisonment. He did not appeal his conviction or sentence. On 3 October 2017 the Defendant served the Claimant with a notice of her decision to deport him, and in January 2018 she served the Claimant with a deportation order signed on 16 January 2018. At the same time she rejected the 2002 visa application. On 31 January 2018, the Claimant appealed the decision to deport him on human rights grounds, claiming the protection of Article 8 of the European Convention on Human Rights.
On 31 May 2019 the Claimant was detained by the Defendant under immigration powers on the completion of his custodial sentence. His appeal against the deportation order was dismissed by the First-tier Tribunal on 19 August, and his appeal rights were exhausted on 3 September 2019. On 16 December 2019 removal directions were set for 1 January 2020.
On 18 December 2019 the Claimant made an asylum claim. He was released on or about 11 February 2020 (and therefore was now on licence from prison pursuant to his sentence in 2017). His detention from 31 May 2019 to 11 February 2020 is not under challenge in these proceedings.
On 8 January 2021, the Claimant was recalled under the terms of his licence for a fixed term of 28 days; the Claimant’s instructions to Ms Masood are that he was recalled because he breached covid restrictions. At the end of that fixed term, on 4 February 2021, the Claimant was detained by the Defendant under immigration powers.
The Defendant has remained in immigration detention ever since, for over two years, and that is the period under challenge. It will be recalled that at the start of this period of detention the Claimant’s asylum claim made 14 months beforehand remained outstanding.
On 4 March 2021 the Claimant was granted bail in principle by the FTT to commence when the Defendant provided a suitable release address, and on 14 May 2021 the Defendant’s Case Progression Panel recommended the Claimant’s release on the grounds that removal was not going to take place within a reasonable timescale.
Nevertheless the Claimant was still in custody when on 14 July 2021 the Defendant’s officials received a phone call from “Genesis Legal Advice”, saying that the Claimant had stated that he no longer wanted to remain in the UK. On 10 August 2021 he signed a declaration withdrawing his asylum claim and stating that he wished to return to Jamaica and understood that arrangements would be made as soon as possible for his departure. He was still in detention on 1 December 2021 when he signed a disclaimer for the Facilitated Returns Scheme saying that he was content to be returned to Jamaica.
However, soon after that the Claimant began to express concern to detention staff about how his medical condition, glaucoma, would be managed in Jamaica. It proved impossible to send him there on a scheduled flight because he was no longer willing to go and the Defendant was constrained to wait until a charter flight was available. In December 2021 he instructed his current solicitors. On 4 January 2022 he said he did not want to go to Jamaica, and on 28 January 2022 he was served with notice that he had been withdrawn from the Facilitated Returns Scheme.
On 10 March 2022 the Defendant was advised by her removals desk that the Claimant would not be able to return on a scheduled flight, since the relevant companies were not prepared to take unwilling returns; the Claimant’s return would have to await the next charter flight in May.
In April the Claimant made a bail application to the FTT; it was withdrawn at the hearing because his solicitors had not appreciated until that point that the asylum claim had been withdrawn the previous August and needed to take instructions.
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