Hussein v Secretary of State for the Home Department

A conviction occurring after the passing of the UK Borders Act 2007 but before the commencement of its automatic deportation provisions may satisfy the conviction condition in section 32. The statutory use of the present tense does not prevent section 32 from applying to earlier convictions, read in the light of the transitional power in section 59.

Detention under section 36(1)(a), while the Secretary of State considers whether an exception to automatic deportation applies, is capable of falling within Article 5(1)(f) of the Convention. The detention remains subject to modified Hardial Singh limitations, including reasonable duration and diligence. The detention in this case was lawful.

The claimant, a Somali national with indefinite leave to remain, was convicted and sentenced to 16 months’ imprisonment. After the relevant custodial period, the Secretary of State detained him under section 36(1)(a) of the UK Borders Act 2007 while considering whether automatic deportation applied and whether any exception under section 33 arose.

He sought judicial review on three grounds: that his conviction fell outside the commencement arrangements; that section 36(1)(a) was incompatible with Article 5 of the Convention; and that the power had been unlawfully exercised because of delay and the length of detention.

1. Automatic deportation. Section 32, read with section 59(4)(d), was intended to cover persons convicted before commencement as well as those convicted afterwards. The transitional provision dealt with the mechanics and extent of commencement; it did not define the substantive scope of section 32. The present tense in sections 32 and 38 could not sensibly exclude persons convicted between the passing of the Act and commencement. Such an interpretation would produce absurd results, including treating sentencing dates as decisive in cases where Parliament had plainly contemplated earlier convictions. The claimant’s conviction was therefore sufficient.
2. Article 5. Section 36(1)(a) permits detention while the Secretary of State investigates whether an exception under section 33 applies. Article 5(1)(f) has an autonomous meaning and does not require a concluded deportation decision or court proceedings. The claimant was detained pursuant to a sufficiently firm intention to operate the deportation powers unless an exception applied. Chahal v United Kingdom (1996) 23 EHRR 413 supported a broad construction covering detention while an asylum or human-rights claim is being considered. McVeigh, O’Neill and Evans v United Kingdom (1981) 5 EHRR 71 was distinguishable because there was then no sufficiently firm intention to deport. Permission was granted on this ground, but it failed.
3. Implied limitations. The section 36(1)(a) power is subject to adapted Hardial Singh principles: the Secretary of State must have a conditional intention to deport and may detain only to investigate the section 33 exceptions; detention must remain reasonable; it must cease if deportation or resolution of the exceptions cannot be achieved within a reasonable time; and the Secretary of State must act with reasonable diligence and expedition. Those requirements were not breached. The period of asylum investigation, including delay attributable to the claimant’s representatives, was not excessive. The claimant’s criminal history and risk of reoffending were relevant circumstances.
4. The judicial review application was dismissed.