Re Nwafor's Application

Re NWAFOR'S application

Queen's Bench Division

[1994] Imm AR 91

Hearing Date: 20 September 1993

20 September 1993

Index Terms:

Deportation -- recommendation by court -- custodial sentence -- decision by Parole Unit that applicant be released on parole and deported -- appeal pending against sentence -- whether continued detention lawful. Immigration Act 1971 ss 3(6), 6(6), sch 3 para 2(1).

Held:

The applicant for habeas corpus and leave to move for judicial review was a citizen of Nigeria who had been convicted of being involved in the importation of heroin. The trial judge had recommended his being deported. The Parole Unit of the Home Office had recommended the applicant be paroled and deported. He had appealed against conviction and that appeal had not yet been determined. Until it was, the Secretary of State, under section 6(6) of the 1971 Act, was not empowered to sign the deportation order: the applicant accordingly remained in custody. Counsel submitted that following the decision that the applicant be released on parole and deported the Secretary of State lacked power, pursuant to paragraph 2(1) of schedule 3 to the 1971 Act to continue to detain the applicant. Held 1. No parole licence had yet been issued: the Secretary of State was unable to sign a deportation order until the applicant's appeal against conviction had been determined. 2. It followed that the applicant was accordingly detained presently in pursuance of the sentence of the court. 3. Accordingly paragraph 2(1) of schedule 3 of the 1971 Act had no relevance and the continuing detention of the applicant was lawful. 4. No challenge by way of judicial review on Wednesbury principles could be mounted against the Secretary of State's approach.

Counsel:

Miss R Lacey for the applicant; A Bishop for the respondent PANEL: Laws J

Judgment One:

LAWS J: This is an application for a writ of habeas corpus. Also this morning placed before the court is an application for leave to move for judicial review made on behalf of the same applicant and relating to the same facts. The facts so far as relevant are as follows. This applicant, Michael Chukwa Nwafor, was on 1 December 1990 convicted of an offence of being involved in the importation of a class A drug, heroin. In January 1991 he was sentenced to eight years' imprisonment for that offence, but in November 1992 his appeal against conviction was allowed by the Court of Appeal Criminal Division. There was a re-trial. However, on 12 March 1993 the jury at that re-trial failed to agree, and so a third trial took place. At the third trial he was convicted on 16 June 1993 and, on 24 June 1993 sentenced to a period of six years' imprisonment. It seems that the learned judge on passing sentence took account, as no doubt was entirely right, of the period for which he had already been detained. The judge may have contemplated that in early course he would be taken from prison and deported, because he made a recommendation for deportation under section 3(6) of the Immigration Act 1971. On 12 July 1993 an application for leave to appeal against his conviction was lodged. On 6 August 1993 there was written a document from the Parole Unit of the Home Office to the Governor of the prison where this applicant was held, and it is in these terms: "Further to the review of early release for the above-named inmate it has been decided that the inmate should be released on Parole and Deported on a date to be decided in consultation with the Immigration and Nationality Department which has the responsibility for making the necessary arrangements for his deportation. Please inform the inmate of this decision. You will be notified when a date has been set for the deportation to proceed and the licence can be issued." I am told by Miss Lacey on the applicant's behalf that there is some indication in a letter by the Home Office of 1 September 1993, that the applicant's deportation would not be effected until the outcome of any decision on his application for leave to appeal, or, I assume, any appeal which follows the grant of leave. Miss Lacey supported her application for a writ of habeas corpus originally by asserting that, given the decision that this applicant should be released on parole and deported, the case was one in which his present detention subsisted by virtue of schedule 3, paragraph 2(1) of the Immigration Act 1971. She went on to submit that if that was right, then the Home Office on the particular facts of this case lacked the power to continue to detain him under that paragraph. Paragraph 2(1) commences with these words: "Where a recommendation for deportation made by a court is in force in respect of any person, and that person is neither detained in pursuance of the sentence or order of any court nor for the time being released on bail by any court having power so to release him, . . ." It will be seen at once that paragraph 2(1) has no application in a case where the person in question is detained in pursuance of the sentence or order of a court. Miss Lacey asserts that as the Home Office are in some sense treating the applicant as detained under paragraph 2(1), the court should so treat him also. However, the fact is that he was, as I have said, sentenced on 24 June 1993. He has not, in fact, been released on licence. Indeed the document of 6 August, on which Miss Lacey relies and which I have read, indicates that some future date will be set for this applicant's deportation and the issue of a parole licence. Given that no such licence has been issued, it seems to me inescapable that at this moment he remains detained in pursuance of the sentence of the court passed on 24 June 1993. In those circumstances, paragraph 2(1) of the third schedule has no application and the application for habeas corpus is misconceived. If, however, that be wrong, the question would arise whether there is any flaw, amenable to correction by the writ of habeas corpus, in this man's continued detention under paragraph 2(1). Miss Lacey has, in fact, abandoned her assertion that this continued detention is flawed for the purposes of a habeas corpus application, because she recognises, contrary to her original submissions, that the Secretary of State must possess the power to retain the applicant in custody under paragraph 2(1), by reason of the fact that under section 6(6) of the Immigration Act 1971 he is not able to make a deportation order following a section 3(6) recommendation until any outstanding appeal against the recommendation or against conviction has been dealt with; that being so it is plain, as Miss Lacey acknowledges, that a detention under paragraph 2(1) can lawfully run until the moment when the deportation order would fall to be made. In those circumstances, there is clearly nothing wrong with the applicant's continued detention on its face if paragraph 2(1) were in play, and the habeas corpus application will accordingly be dismissed, primarily on the grounds that I have stated; namely that paragraph 2(1) has no application to the case but, if that be wrong, then on the ground that there is no flaw on the face of this detention under paragraph 2(1) which should attract the habeas corpus jurisdiction. I have said that there is also an application for leave to move for judicial review. Such an application could only properly be granted, if it seemed to me to be arguable, that in exercising his discretion not to release the applicant pending further consideration of the case under paragraph 2(1), the Secretary of State had committed or was committing some legal error cognisable in public law. I should read the balance of paragraph 2(1) so that the point may clearly emerge. It provides: ". . . he [that is the prisoner] shall, unless the court by which the recommendation is made otherwise directs, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case." Therefore the position prima facie is that if such a person remains detained the Secretary of State has a discretionary power to release him pending further consideration of the case. It would take an unusual case, indeed, to establish that the Secretary of State was obliged, in effect, to order an applicant's release under paragraph 2(1) in a case where section 6(6) applied, as it does here, since by virtue of section 6(6) the Secretary of State cannot deport the applicant at present. The proposition that nevertheless he should now be released would mean that the Secretary of State on the particular facts was in some way obliged to order release, even though some time would inevitably pass before any deportation would be effected. I do not say that there could never be such a case. Certainly, there is nothing in the material before me that shows either such a breach of Wednesbury principles, or other error of public law that renders it arguable that the Secretary of State is exceeding his powers in failing to direct release under paragraph 2(1). There is, in my judgment, nothing in this application and it will be dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

McCullochs, Crawley, West Sussex: Treasury Solicitor