Sahrawi Asylum Seeker’s Detention Upheld

R (ML (Morocco)) v SSHD [2016] EWHC 2177 (Admin) (31 August 2016)

The Convention Relating to the Status of Stateless Persons 1954 expresses quite “profound concern” for stateless persons not protected by the Convention Relating to the Status of Refugees 1951 and the UN calls for the “widest possible” protection of such persons’ fundamental rights and freedoms. Last year it was held in the case of Pham [2015] UKSC 19 that “stateless” in section 40(4) of the British Nationality Act 1981 has the same meaning as article 1(1) of the 1954 Convention. That was a memorable case but this one, which is from the troubled Maghreb region, also involves interesting facts. Ethnically the claimant was Sahrawi. ML begrudgingly said that he hated Morocco and told its authorities that he was Algerian. He suffered from a mental health disorder and offended serially amassing 14 convictions for 17 offences. His convictions over a seven-year period (2005-2007) included crimes such as attempted robbery, criminal damage, drugs offences and theft and he was considered to pose a high risk of harm to the public. He misused substances, was schizophrenic and took prescribed medication. The strange thing about the outcome of this case is that the home office – probably the most inefficient public authority of all time – comes out as a winner for diligence.

ML’s detention for more than two years ended in November 2015. The issue was whether the home office acted reasonably by attempting to apply for an Emergency Travel Document from the Western Sahara Mission – which had already refused an ETD in March 2014 – given that the mission is not recognised by the British government. The court held that detention for 10 months during which efforts were made to obtain an ETD was not unlawful because the home office acted expeditiously and reasonably diligently in its continued efforts to obtain one. Born in Tindouf in a Polisario operated refugee camp in Western Sahara, ML claimed asylum in the UK in mid-2003 by contending that he was ill-treated in the camp but his claim remained undetermined as it was rejected for non-compliance. Irrespective of his claim to statelessness, no formal application had been made in that regard.

Another application, including evidence that ML’s father was born in Western Sahara, was made to get an ETD from the mission. The application was chased up and advice was imparted that the matter needed to be raised with the Algerian or Moroccan embassies subsequent to which in May 2015 the home office approached the latter country’s authorities, which advised it in June that a response would be made in September. However, no response was made and ML was released in November 2015.

Further facts of the case are that in August 2013, following his arrest for criminal damage and affray, to which he pleaded guilty and was fined, ML was detained pursuant to immigration powers first at Colnbrook IRC and then Morton Hall IRC. ML complained that his unlawful detention from 23 January 2015 to 10 November 2015 breached both the common law and also the Hardial Singh (1984) 1 WLR 704 principles and article 5 of the ECHR. In 2014, a psychiatrist diagnosed ML as a paranoid schizophrenic suffering from emotionally unstable personality disorder. His claim for unlawful detention failed and alleged breaches of article 5 made no difference. ML complained that his detention from January to November 2015 was unlawful and violated the second, third and fourth principle in Singh.

The Singh principles were endorsed in Tan Te Lam [1997] AC 97 which itself brought to light the plight of Vietnamese boat people who had been detained in places such as Tai A Chau Detention Centre and High Island Detention Centre pursuant to section 13D of the Immigration Ordinance of Hong Kong.

In R (I) [2002] EWCA Civ 888 – a case about a detained Afghan asylum seeker who had committed sexual offences – Lord Dyson observed that (i) the person’s deportation must be intended and the power to detain can only be used for that purpose (ii) the deportee may only be detained for a period that is reasonable in all the circumstances (iii) where prior to the expiry of the reasonable period, it becomes apparent that deportation will not be able to effected within that reasonable period, the authorities should not seek to exercise the power of detention and (iv) the authorities must act with reasonable diligence and expedition to effect removal. Lord Hope of Craighead KT endorsed this approach for the majority of the Supreme Court in WL (Congo) [2012] 1 AC 245.

Addressing principles 2 and 3, Judge McKenna held that ML’s multiple convictions, persistent absconding, high risk of harm to the public and dishonest use of half a dozen aliases (and as many dates of birth) were factors that had to be weighed against him when assessing what was a reasonable period of detention. It was not unreasonable to detain ML for a 10-month period if there was a realistic prospect of removal during that time. On the other hand, the court needed to be mindful to particular circumstances arising from ML’s place of birth. Addressing the central issue in the case, Judge McKenna said:

33. … On this issue I have concluded that the second attempt was different in substance to the first ETD in that more supporting evidence was included, including in particular, the Receipt document to which I have referred and it seems to me that in the circumstances the Defendant was entitled to explore this avenue at least for a short period of time. Nor am I persuaded that it was irrational for the Defendant to pursue this avenue in the light of the Claimant’s professed fear of the Western Sahara authorities in the absence of any determination that he was at any risk from them.

The abandonment of the second ETD application to the Western Sahara Mission in favour of approaching the Moroccan authorities was a reasonable avenue to pursue in the light of the absence of a decision as to an ETD from the former body. Delay was not attributable to the home office because it had made reasonable attempts to secure progress and it was relying on the Moroccan authorities to process the application. The court did not find it possible to hold that the regular decisions to continue to detain while the Moroccan ETD application was being processed were unlawful in any way.

The final point made in relation to principle 4 was that the home office acted with reasonable diligence during the course of ML’s period of detention because reasonable steps had been taken to pursue removal. The foreign authorities involved were regularly contacted for updates and when the closure of a certain avenue occurred a different route had been taken, and taken reasonably promptly.

Overall, it was not possible to argue that the home office had acted other than with reasonable expedition. That may have been so before Judge McKenna but the simple truth is that overall the home office’s performance is so appalling, negligent and poor that even the public authorities of developing African and Asian countries can outrank it in terms of efficiency.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Africa, Article 5, Asylum, Crime, Detention, Statelessness and tagged , , , , . Bookmark the permalink.

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