Reported Case

The High Court has today ruled in a test case brought by Duncan Lewis that the Home Office cannot lawfully require (on pain of prosecution) foreign nationals to state to officials from their home country that they are willing to return. The Court also found that JM had been unlawfully detained for 18 months.

Facts of the case:

JM, a Zimbabwean national subject to deportation, was placed in immigration detention immediately on the expiry of his sentence in May 2013. The Home Office attempted to obtain an Emergency Travel Document (ETD) from the Zimbabwean High Commission which would allow them to remove JM to Zimbabwe. It is the policy of the government of Zimbabwe that they will only provide ETDs to nationals if their country of they are willing to return. As the judgment records:

On 11th February the Claimant attended the Embassy. He was asked if he wanted to return to Zimbabwe and he replied that he did not. According to paragraph 17 of the Claimant’s witness statement, he explained that he did not want to go, but if they forced him, he would.

On 21st April 2015 the Claimant was charged with an offence under section 35 of the 2004 Act. The particulars of the offence were that the Claimant had failed to consent to return to Zimbabwe when requested by an Embassy official. On the Claimant’s account, he was advised to plead guilty; and on 22nd May 2015 he did so, and was sentenced to 9 months’ imprisonment. During the currency of the Claimant’s sentence, he was no longer detained under immigration powers, and he was transferred to prison.

On 13th August 2015 the Defendant wrote to the Claimant asking whether he could confirm that he would comply in attending the Zimbabwean Embassy for the purpose of a face-to-face interview. On 21st August the Claimant’s case was discussed at the “section 35 Tasking Board meeting” and the “prosecutions’ team” confirmed that they would prosecute “as many times as it takes before he complies”.

Once we became aware that JM was in danger of a second prosecution Duncan Lewis issued a claim for judicial review of JM’s ongoing detention and the Home Office’s powers under s.35, and obtained an injunction from the High Court preventing the Home Office from attempting to progess the ETD application until the Court had ruled on whether section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 could make failing to state willingness to return to a foreign official an offence. Despite this obvious barrier to any removal taking place for some time, given that the claim for judicial review was not listed to be heard until July 2016, the Home Office continued to detain JM so Duncan Lewis made a further interim application to the Court – the Home Office then released JM in May 2016, the day before that hearing was due to take place.

Mr. Justice Jay, well known to the public as counsel to the (Leveson) Inquiry into press standards, further stated:

any notion that section 35 could be used “as many times as it takes” is so Kafkaesque as to be inimical to the rule of law.

James Packer and Kate Newman of the Public Law Department represented JM.

The Home Office have indicated an intention to seek permission to appeal to the Court of Appeal.

Find full details of this case on Bailii’s website here.