Undeniably, there  are long standing  “problems”  between the  Zimbabwean  and UK  authorities but  these  are spilling  over and affecting   whether and how soon the  UK authorities can  deport or remove  affected  Zimbabwean nationals to Zimbabwe.

 

The case of JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773, dealt  with several issues,  ranging from discussion on the  demise  of President Mugabe; whether the Home Office   could   lawfully require the  Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agreed  to return voluntarily; whether the claimant’s refusal  to  sign  a disclaimer that he would return to Zimbabwe could be seen as deliberate obstruction  rather that a refusal to return voluntarily; whether the Secretary of State  can use section 35 serially, “for as many times as it takes”;  whether  the pursuit of a section 35 prosecution amounted to improper pressure and/or an uncovenanted exercise of the power to detain and whether section 35 can be legitimately used by the Secretary of State both to secure compliance and to justify detention.

 

The problem:

 

Since Restrictive Measures were installed in 2002, Zimbabwe requires the returnee’s consent before issuing an emergency travel document ( ETD in ) relation to enforced returns. The   current position of the Zimbabwean authorities  therefore  is that they will only accept voluntary returnees.

 

At paragraph 107 in JM(Zimbabwe), Mr Justice Jay  noted that the  question arose  whether there was any realistic prospect, during the whole of the period under consideration, of the Zimbabwean authorities changing their policy on this issue. During the hearing there was some speculation about a range of possibilities, including the demise of the Zimbabwean President.  The  Judge noted “that will happen one day” but that the temporal framework was uncertain. The Judge  noted  that  it went without saying that when he dies no one, including the Secretary of State  really has any idea whether Zimbabwe’s policy will change, and when.  It was not until February 2016 that there was even the remotest prospect of a possible change of political heart. The Court was  informed that there was some thawing in the relationship between the UK and Zimbabwe in February 2016, and on 16^th March a high-level meeting took place at the British Embassy in Harare. That meeting  was described as  “more positive than expected”. The court was also informed that the Secretary of State  was awaiting a political decision in relation to 18 cases, not including this Claimant’s,  in relation to  which  the Court noted that  the decision may never come. The Judge stated that  there was no realistic prospect of a change of policy on the part of the Zimbabwean authorities during any part of the period germane to the proceedings. This  seemed apparent to the  Judge and in  his  view the Secretary of State could not  cling to threads of speculation and hope.

 

The Court found that there was no realistic, or sufficient, prospect of a volte face by the Zimbabweans during any part of the period under scrutiny in the case of JM(Zimbabwe).

 

The Claimant’s actions and failures:

 

Relevantly, in summary, having  become subject to criminal proceedings,   following a criminal conviction,  JM’s custodial term came to an end on 5^th May 2013  and he was  detained under immigration powers.  He became subject  to automatic  deportation proceedings. Following an appeal in the immigration tribunal, the Claimant became “appeal rights exhausted” on 10^th March 2014.

 

On 28^th January 2015 the Claimant was provided with a disclaimer form in connection with the ETD process to confirm that he agreed to return to Zimbabwe. He  ticked the box stating that he would now comply with the Zimbabwean ETD application. He left open the box which required him to states, “ that I will comply with the ETD process as I am willing  to go home to Zimbabwe”.

 

On 21^st 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. He pleaded guilty on 22^nd May 2015 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 13^th August 2015 the Secretary of State  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 21^st 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”.

 

On 6^th September 2015 the custodial part of the Claimant’s sentence came to an end, and he was re-detained under immigration powers. On 11^th January 2016 the Defendant served on the Claimant a further notice under section 35 of the 2004 Act.

The notice required him to attend the Zimbabwean Embassy for interview on 20^th January, and amongst other things, “agree to return to Zimbabwe if asked as part of the requirements for re-documentation, by Embassy official”. The legality of this request was then challenged by the Claimant.

 

On 19^th January 2016 judicial review proceedings were filed. On the same day Walker J made an Order that, pending determination of the application to apply for judicial review or further Order, the Defendant could not take the Claimant to the Zimbabwean Embassy or in any other way to arrange for him to be interviewed by anyone acting for that Government.

 

Relevant Statutory provision:

 

Section 35 of  the Asylum and Immigration (Treatment of Claimants etc.) Act 2004  Act provides, in material part:

 

“35 Deportation or removal: cooperation

(1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that—

(a) the action will or may enable a travel document to be obtained by or for the person, and

(b) possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom.

(2) In particular, the Secretary of State may require a person to—

(a) provide information or documents to the Secretary of State or to any other person;

(b) obtain information or documents;

(c) provide biometric information (within the meaning of section 15 of the UK Borders Act 2007), or submit to a process by means of which such information is obtained or recorded;

(d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom;

(e) cooperate with a process designed to enable determination of an application;

(f) complete a form accurately and completely;

(g) attend an interview and answer questions accurately and completely;

(h) make an appointment.

(3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1).”

 

Relevant caselaw on unlawful detention:

 

The four Hardial Singh principles were listed by Lord Dyson JSC at paragraph 22 of his judgment in R (Lumba) v SSHD [2012] 1 AC 245:

 

(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

(ii) the deportee may only be detained for a period that is reasonable in all the circumstances.

(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.

(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

 

The issues:

 

JM sought damages for false imprisonment at common law, and damages for breach of Article 5(1)(f) of the ECHR, in relation to his detention pursuant to immigration powers between 5^th May 2013 and 25^th May 2016, excluding a period when he was detained pursuant to the sentence of the court in criminal proceedings.

 

His case also raised for the  first time, an important point of principle concerning the true construction and application of section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 to Zimbabwean nationals who refuse to consent to removal to their homeland.

 

It was submitted on the Claimant’s behalf that section 35 does not permit the Defendant to require the Claimant to say to Embassy officials that he is willing to return when that is not true. In any event, the Claimant has a “reasonable excuse” under section 35(3). None of the sub-section (2) matters includes a requirement to “agree” or “consent” to return, still less express a willingness to return. Section 35(2) contains an exhaustive list of the types of action the Defendant can lawfully require under sub-section (1). All the sub-section (2) requirements are procedural in nature, and to insist on agreeing to return is both substantive in nature and compelling a mendacious utterance. There is an important distinction between, on the one hand, refusal to co-operate with a procedural requirement and, on the other hand, refusal to return voluntarily.

 

It was submitted on behalf of the Secretary of State  that the offence is created by section 35(1), and not section 35(2). “specified action” is any action which the Secretary of State specifies, providing that she thinks that it might achieve either or both of the objectives set forth in sub-paragraphs (a) and (b), which is not in issue. It follows that the Defendant does not need to show that the case falls within section 35(2), because the core provision is section 35(1), and in any event subsection (2) opens with the adverbial phrase, “in particular”: it is not exhaustive. In the alternative, it was submitted that the instant case fell  within section 35(2)(d). In the further alternative,  there was a submission  that  the Court  should construe section 35(2)(d) in a manner which serves to accommodate action which is close in nature and character to its express language.

 

In relation to detention arguments, it was submitted on the claimants behalf that the Secretary of  State  was in breach of Hardial Singh (i) because detention cannot be used for the purpose of putting pressure on a detainee to leave voluntarily, and in particular the pursuit of a section 35 prosecution amounted to improper pressure and/or an uncovenanted exercise of the power to detain.  In relation to Hardial Singh (iii), his case was that, given that it was always clear that the Zimbabwean authorities would not issue an ETD to someone who was not a voluntary returnee, there never was a sufficient prospect of deportation within a reasonable time. In relation to Hardial Singh (iv), it was submitted that the Defendant clearly failed to progress the Claimant’s case with reasonable expedition and diligence.

 

On behalf of the Secretary of State it was argued that the starting point must be that the Claimant was disobeying a deportation order which required him to leave the UK, and that he was in substance and practical reality wilfully obstructing the process of deportation by refusing to facilitate the obtention of an ETD from the Zimbabwean authorities. The Court was invited to focus on the panoply of considerations which indicated that there was some prospect of removal within a reasonable time. These were: the risk of absconding; the Claimant’s deliberate obstruction; the seriousness of his criminal offending; his clear failure voluntarily to repatriate; and, the fact that the attitude of the Zimbabwean authorities was changing, and that the Court  should not second-guess delicate matters of international and diplomatic relations. It was noted by the Court that towards the end of her oral argument Ms Anderson appearing on behalf of the Secretary of State  appeared to accept that the lawfulness of the Defendant’s position on section 35 of the 2004 Act could be relevant to Hardial Singh (iii).

 

Disapproval of Dicta in  Babbage:

 

It was noted that in R (oao Babbage) v SSHD [2016] EWHC 148 (Admin) Garnham J said this, at paragraph 75:

 

“In any event, I have the gravest doubt whether a breach of section 35 could be made out against the Claimant. The Claimant was being asked to sign a document indicating that he intended to leave the United Kingdom. If, in truth, he did not intend to leave the United Kingdom, he could not properly be required to sign the disclaimer; or, put another way, he would have a reasonable excuse for not doing so.”

 

Babbage was a Zimbabwean unlawful detention case where the Defendant was confronted by the same practical difficulty, namely the attitude of the authorities to enforced returnees. The Court noted in JM(Zimbabwe) however, that  the section 35 point was not argued. Mr Justice  Jay   pointed  out  that Garnham J’s reasoning in relation to subsection (3) could however not  be reconciled with the decision of the Court of Appeal in R v Tabnak [2007] EWCA Crim 380 where, at paragraph 20 of his judgment, Lord Phillips CJ stated, “as a matter of law, reasons why a defendant is unwilling to comply with a section 35 requirement with which he is perfectly able to comply cannot constitute a reasonable excuse for non-compliance”. Put another way, section 35(3) cannot be concerned with a person’s motives and subjective wishes, however strongly held. Thus, if the case under consideration falls within section 35(2), and the Secretary of State could properly demand of someone in this Claimant’s position that he must answer an official’s question in a certain way, a defendant cannot be heard to say that he does not want to.

 

No lawful requirement by the Claimant to tell Zimbabwean officials that he agrees to return voluntarily:

 

• The Court stated that the Section 35, subsection (2) categories threw light on the exercise. Some of these are broad, others are much narrower and more specific. The draftsperson has not included a catch-all category, “such other action as the Secretary of State may reasonably require, in order to fulfil the objects of subsection (1)”. In the Court’s judgment, subsection (2) has every appearance of being an attempt by Parliament to lay down a list of the types of action which the Secretary of State could properly require to be undertaken, and moreover that this list was intended to be comprehensive. The inference the Court drew , approaching the exercise of statutory construction on an objective and traditional basis, is that Parliament intended to cover every angle and all possibilities.

• In the Court’s judgment, JM’s case could not be brought within sub-paragraph (d), “make or consent to or co-operate with the making of, an application [etc.]”. The Claimant did not oppose the making of an application for an ETD (on these facts, it was made by the Defendant on his behalf), and he participated in it to the extent required by agreeing to be interviewed by a Zimbabwean official. At the moment his interview started, he was consenting to the application. The Defendant’s real complaint was that he did not say at interview that he was willing to return to Zimbabwe. The Claimant’s actions did not amount to refusing to give consent to the application, particularly in circumstances where the requirement in sub-paragraph (g) is to attend an interview and “answer questions accurately and completely”. The Claimant would not be answering the Zimbabwean official’s question accurately if he had said that he was willing to return there. Thus, sub-paragraph (g), which precisely fits the circumstances of this case and the Defendant’s real complaint, had been complied with by the Claimant.

• Mr Justice Jay stated his textual analysis of sub-paragraphs (d) and (g) must lead to the conclusion that the meaning of “consent to” cannot be expanded, on any putative kindred basis, to suit the Secretary of States’ forensic needs. Parliament could, if it had wanted to, have introduced a specific category of requirement which would cater for the instant case, even if that requirement compelled the individual to lie.

• The Court also pointed out that a stipulation which in substance required an individual to lie to an embassy or consular official would have to be covered by clear statutory wording. But if there were a further sub-paragraph which read something along the lines of, “if asked by an official whether you are willing to return, you must answer in the affirmative”, sub-paragraph (g) would have to be dis-applied in relation to that part of the interview alone. That Court however stated that would entail a form of verbal contortion which would likely confound the most adept of Parliamentary draft-persons.

• The Court held that substantially for the reasons advanced on behalf of the Claimant,  the Secretary of State may not lawfully require the Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agrees to return voluntarily.

• The Claimant was entitled to a declaration that the Defendant may not lawfully require the Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agrees to return voluntarily.

 

Finding that the Claimant was unlawfully detained:

 

• The Court rejected the Secretary of State’s submission that the Claimant had been deliberately obstructive. He fell into the category of voluntary refusenik. Examining the disclaimer which the Claimant was asked to sign, he stated that he would now comply with the Zimbabwean ETD application, but that he was not willing to go home to Zimbabwe. The instant case was covered by paragraphs 122-128 of R (Lumba) v SSHD [2012] 1 AC 245 as applied by Garnham J in R (oao Babbage) v SSHD [2016] EWHC 148 (Admin) and Mr Justice Jay agreed with the latter’s analysis.

• The Detention Reviews made clear that there were “no enforced returns to Zimbabwe”. In the Court’s judgment, it was crystal-clear on 11^th February 2015 that the Claimant was not a voluntary returnee, and applying a probabilistic test to the issue the Defendant knew or ought to have known of this by 28^th January 2015, at the latest.

• The Court held that that the Claimant was barred by public policy from advancing a claim in relation to the period 21^st April to 6^th September 2015.

• The Court stated that overall, the focus must be on the period between February and October 2014, when in effect nothing happened. It was found that the Defendant was in breach of Hardial Singh (iv) in relation to that period. As the Detention Reviews made clear, one of the purposes (possibly the main purpose) underlying the Claimant’s continued detention at this stage was to secure his compliance with the ETD process. The Court did not hold that this was an improper purpose, but it certainly accentuated the need to proceed with good speed. Had the Defendant acted with reasonable expedition and diligence, an interview with immigration officers should have taken place by 1^st April 2014, and the Claimant should have been taken to the Zimbabwean Embassy by 1^st August. There was no evidence before the Court as to how long it takes to arrange embassy visits of this sort, but the Court drew the inference that it was not entirely straightforward. Working backwards from the known chronology, the Claimant’s position should have been made clear by the disclaimer document which he should have been asked to complete by 15^th July 2014.

• The Court therefore found that the Claimant was unlawfully detained between 15^th July 2014 and 26^th May 2016, a period of 1 year 10 months and 11 days. From this must be deducted the 126 days referable to his criminal sentence served between 21^st April and 4^th September 2015.

• It was noted that, the problem created by the attitude of the Zimbabwean authorities remained. Unless the Claimant says that he is willing to return, deportation within a reasonable time will not happen. Section 35 cannot physically compel the Claimant to say that he is willing to return; all that it can do is to make him guilty of a criminal offence if he disobeys that requirement.

• The position was not improved from the Secretary of State’s perspective by the observation that those in breach of section 35 are wilful obstructers. Mr Justice Jay stated that he agreed that they are, and that this was a relevant factor, however it could not begin to justify indefinite detention or the multiple use of section 35.

• The Court agreed with Garnham J in Babbage that section 35 cannot be used to justify detention which would otherwise be unlawful. However, there may be circumstances, in Zimbabwean cases, where it would/could appear to the Secretary of State that the use of section 35 might secure a practical result, namely a change of heart or mind, making deportation within a reasonable time a realistic prospect. That said, this is very much a fact-sensitive exercise, and Mr Justice Jay reiterated that 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.

• The Defendant was in breach of Hardial Singh (iii) and (iv), viewed in combination, between 15^th July 2014 and 25^th May 2016 (save in relation to the period 21^st April to 6^th September 2015, when the Claimant was serving his criminal sentence), and he was unlawfully detained during that period. In the Court’s judgment, it was plain that this was a case which warranted an award of substantial rather than nominal damages.

 

Conclusions

 

Unless overturned in future  by the higher courts, the  judgement in JM(Zimbabwe)  leaves this question: So,  until President Mugabe  dies,  does this mean  that the Home Office  will accept that non- consenting Zimbabwean failed  asylum seekers, deportees who have exhausted  their rights of appeal and  those without leave  generally are irremovable and that therefore  such persons can be sure that they will not be subject to detentions which serve no practical purpose?