Somov (Sergei Sereivich) v. Her Majesty's Chief Immigration Officer

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST Royal Courts of Justice

Tuesday, 30th June 1998

Before: LORD JUSTICE ROCH, LORD JUSTICE WARD, LORD JUSTICE POTTER

SERGEI SERGEIVICH SOMOV-v-HER MAJESTY'S CHIEF IMMIGRATION OFFICER

MISS K. OGUN (instructed by Messrs Osibanjo-Ete & Co., London, SE5) appeared on behalf of the Appellant/Applicant.

MR. R. JAY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.

JUDGMENT

LORD JUSTICE ROCH:

This is an appeal from the order of Forbes J. made on 28th April 1998 adjourning the appellant's application for the issue of a writ of habeas corpus to the Governor of Her Majesty's Prison Rochester for a period of six weeks. That period expired on 9th June without the matter coming back before Forbes J. That seems to have been due to the difficulties in listing the matter before him again. It does not seem to have been due to any fault on the part of those acting for the appellant or for those acting for the respondent Secretary of State. We considered that we should hear this matter, despite the fact that it was listed to come back before Forbes J in Liverpool on 29th June.

The applicant is a person of Russian origin. He arrived in this country as a stowaway in August 1996. He purported to come from Portugal. He was removed to Portugal. The Portuguese authorities returned him by air the next day to Heathrow. There he applied for political asylum. That was rejected in July 1997. He had been in detention since August 1996 and he has been detained pending his removal from this country since July 1997. He claims to be a Russian citizen. The Russian authorities so far have declined to issue travel documents to enable him to be returned to Russia because they are not satisfied as to his identity. There have been difficulties, in that the appellant has been asked by the immigration authorities in this country for certain details about himself and his family which he has not supplied. There is an issue as to why he has not supplied those details.

In April 1998 his fingerprints and a photograph were supplied to the Russian authorities in London, and they indicated that they would require some four weeks to determine the appellant's identity and to decide whether or not to issue him with travel documents.

The matter was complicated, in that in April 1998 several doctors expressed the opinion that the appellant was suffering from mental illness and was potentially a danger to himself and possibly to others. Those opinions were qualified by the doctors because they had not been able to communicate fully with the appellant.

The application for a writ of habeas corpus first came before the High Court on 17th February 1998. It has been back before judges of the High Court on five further occasions and has prior to today engaged the attention of at least five judges of the High Court.

The appeal came before us on Thursday of last week, and on that occasion we were informed by Mr. Jay, who appears for the Secretary of State, that the position had changed, in that two doctors, one of whom was Russian speaking, had seen the appellant on 25th June and had been able to make oral contact with him. He had been forthcoming to them and they were able to make a full and comprehensive assessment, during which the appellant had spoken lucidly and fluently. They expressed the view that he did not suffer from any mental illness; nor did he require treatment in hospital, as had been thought by other doctors in April.

This court expressed concern about the length of time during which the appellant had been detained. Since Thursday of last week there has been this further development. Yesterday the appellant was granted temporary admission to a person who is liable to be deported, and has been freed on certain conditions which need not be set out in this judgment. We have an affidavit from Margaret Brown, a chief immigration officer with the Home Office, setting out the details as to that release.

Consequently, only one matter needs to be resolved by this court today. That is an application on behalf of the appellant that the Secretary of State should pay the costs of this appeal. We have heard from Mr. Jay a submission that the Secretary of State should not pay the costs for the reason that, in his submission, the Secretary of State's conduct when examined has been reasonable throughout. Miss Ogun has submitted that the appellant should have his costs. Her submission would be that, at some time after 28th April, and before yesterday, the appellant should have been released.

The critical event, in my judgment, was the assessment of the appellant by Dr Lambert and Dr. Farah on 25th June. Release of the appellant prior to that assessment would have been irresponsible. His detention up to that time was therefore reasonable. I would not make an order for costs against the Secretary of State in this appeal. The only order for costs that I would make is a legal aid taxation direction.

LORD JUSTICE WARD:

I agree.

LORD JUSTICE POTTER:

I also agree.