In this case, The Secretary of State as the appellant appealed against the judgment made in JM (Zimbabwe) v Secretary of State for the Home Department EWHC 1773 on the grounds that Mr Justice Jay had failed to determine what the “reasonable period” is after which detention becomes unlawful in relation to the Hardial Singh principles. Aside from clarifying this, this is a test case on the Secretary of State’s use of Section 35 notices, specifically where the limitations lie in conjunction with JM’s cooperation pertaining to his planned removal.
The case concerns Zimbabwean national JM who has HIV. He came to the United Kingdom in 2002, aged 14, to live with his aunt. His application for indefinite leave to remain was rejected, despite his medical condition requiring intravenous drugs which he was unlikely to be able to get should he be removed to Zimbabwe. He appealed for asylum in 2006, which was rejected, though after a sequence of attempts to appeal he was given temporary admission with the requirement to report. This went on until he was arrested for possession in 2011.
He was found guilty and imprisoned, during which time the automatic deportation regime detailed in section 32 of the UK Borders Act 2007 was activated and he was detained immediately after his release in 2013. Even though the Probation Office predicted he posed a 4% risk of reoffending within the year, which only doubled after two years and the Immigration Officers recommended he be released in light of the impossibility of effecting involuntary removal to Zimbabwe, this was rejected by senior officials and he remained in detention.
On 11th November 2013, he was served with a decision to make a deportation order under section 32(5) of the 2007 Act. This he appealed but the First-Tier tribunal dismissed it. The offer to have an assisted return to Zimbabwe was complicated by the fact that JM’s passport had expired and he would require an Emergency Travel Document (ETD). It is the Zimbabwean Government’s policy not to issue an ETD should the national not wish to return. After refusing to complete a bio-data form required for an ETD application, JM was arrested for non-compliance, but then agreed to sign it so the charges were dropped. However, he would not sign a Disclaimer in a Deportation Case form since he did not want to return to Zimbabwe. In the interview with the Zimbabwe Embassy official, as he responded that he did not wish to go, but would if he had to, the official declined to issue him with an ETD.
JM was arrested for not complying with the section 35 of the 2004 Act because the Embassy official had not given an ETD since JM said he was not willing to go to Zimbabwe. He was advised to plead guilty to reduce his sentence and subsequently spent the next 9 months in prison. After which, he was detained in an Immigration Detention Centre.
James Packer, Duncan Lewis Public Law Director, alongside Kate Newman, Public Law solicitor, wrote to explain JM’s willingness to attend an interview with Embassy officials, but pointed out that The Secretary of State should not expect JM to lie if asked whether he wanted to return to Zimbabwe. The Secretary of State served JM a further notice under section 35 of the 2004 Act requiring him to agree to return to Zimbabwe if asked during interview by Embassy officials. This JM’s solicitors challenged by applying for Judicial Review since subsection (2) (g) of the section 35 notice stated that JM can only be required to answer questions in interview accurately and completely.
During the hearing JM (Zimbabwe) v Secretary of State for the Home Department, The Secretary of State was criticised for having detained JM after it had become clear that removal would not take place within a reasonable period of time when exercising the power of detention. The judge also stated that JM would not be committing a criminal offence under Section 35 should he fail to say he was willing to return to Zimbabwe. It can be used to find someone guilty of an offence, but the judge could not justify indefinite detention or multiple use of section 35.
When the Secretary of State appealed this judgment in this case, it was dismissed on the grounds that JM did cooperate with the request to meet with Embassy officials, but could not be required to volunteer to return without willing ness to do so. The detention which followed was unlawful in relation to the Hardial Singh principles, resulting in Mr Justice Jay’s decision to grant JM substantial damages.
James Packer wrote for Free Movement on the significant points this case highlights. To read the full article, please click here.