Bosombi, Re

Detention under Schedule 3 to the Immigration Act 1971 remains lawful where there is a realistic prospect of removal within a reasonable time and the detainee presents a significant risk of absconding or non-co-operation. Delay caused by refusal to assist with travel documents may support continued detention. Habeas corpus cannot be used to reopen deportation or Convention-rights objections where an earlier appeal opportunity existed. Once practical obstacles to removal disappear, removal should proceed promptly and need not be deferred merely because related proceedings are subject to a pending permission application.

The appellant, a national of the Democratic Republic of Congo, had completed a prison sentence following serious convictions for fraud-related offences. The Secretary of State decided to deport him under section 3(5)(a) of the Immigration Act 1971, detained him under Schedule 3, and later made a deportation order. The Administrative Court, Sir George Newman, dismissed his habeas corpus claim on 27 November 2007. The appellant challenged the lawfulness of his detention and sought to raise Convention-rights objections. The issues before the Court of Appeal were whether detention remained lawful pending removal and whether those objections could be advanced at that stage.

Appeal dismissed. The detention remained lawful.

1. The governing principles for the Secretary of State’s power to authorise detention under Schedule 3 to the Immigration Act 1971 had been considered in A v Secretary of State for the Home Department [2007] EWCA Civ 804. It was unnecessary to repeat them. The first-instance judge’s decision was fully in line with those principles.
2. The relevant assessment included the prospect of removal within a reasonable time and the risk that the appellant would abscond or fail to comply with restrictions. His repeated serious convictions supported the assessment of risk. His refusal to co-operate with obtaining travel documentation had contributed to delay. The temporary undertaking not to remove failed asylum seekers to the DRC, pending the decision in BK (DRC) [2007] UKAIT 00098, did not make the detention unlawful.
3. The appellant’s argument that removal would breach his Convention rights was not open to him in this appeal. He had previously had full opportunities to bring a human-rights appeal and had unsuccessfully attempted to do so. Habeas corpus could not be used to reopen that issue.
4. By the time of the appeal, the travel document was available and the decision in BK (DRC) had been given. The Secretary of State was not lawfully required to hold up deportation because an application for permission to appeal remained outstanding. Necessary internal approvals, including consideration of the appellant’s British family, should be addressed as speedily as possible so that the deportation could be carried through with minimum further delay.

1. Court of Appeal (Civil Division): Appeal dismissed. The Court upheld the lawfulness of the detention.
2. Administrative Court: Sir George Newman dismissed the appellant’s habeas corpus claim on 27 November 2007.