In The Secretary of State for the Home Department v JM (Zimbabwe)  EWCA Civ 1669 (25 October 2017), the Secretary of State appealed against the declarations made by Jay J on 15 July 2016 in JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department  EWHC 1773 (Admin) that:
she could not lawfully require JM under section 35 of the Asylum and iImmigration (Treatment of Claimants) Act 2004 to tell officials at the Zimbabwean Embassy that he agreed voluntarily to return to Zimbabwe; and
that he was entitled to substantial damages against the Secretary of State for unlawful immigration detention between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015 when he was serving a sentence of imprisonment).
A previous blog post of July 2016 summarises the effect of Jay J’s judgment in Unlawful detention: Court grapples with the problem of Zimbabwe’s refusal to accept enforced removals from the UK
The Court of Appeal noted in their very recent judgment that given that JM’s passport had expired, his deportation to Zimbabwe depended upon the grant to him by the Embassy of an Extraordinary Travel Document (ETD). The Court of Appeal also recognised the continuing problem that it has been the settled policy of the Zimbabwean Government since 2002 that it will not grant ETDs to its nationals who do not wish to return and that this was a particular feature of the present case. The practical reality is that the Zimbabwean authorities will not issue an ETD unless the individual in question has said he or she is willing to return to Zimbabwe.
JM had provided his Zimbabwean passport to the Home Office as long ago as 2002 in the course of a leave to remain application. That application and the subsequent appeal did not succeed. He claimed asylum in 2006 however that claim too failed.
On 4 May 2011, JM was arrested for possession with intent to supply quantities of class A and class B drugs. On 26 August 2011, after his plea of guilty, he was sentenced to a total of 4 years’ imprisonment. The automatic deportation regime kicked in. He was subsequently taken into immigration detention. He was served with a decision to make a deportation order. He appealed against that decision. On 26 February 2014, the First-tier Tribunal dismissed his appeal.
What JM refused to do :
As a preliminary step to the obtaining of an ETD, JM needed to complete a bio-data form. He declined to sign the bio-data form. Despite it being explained to him that continued non-compliance could lead to prosecution, he maintained the position that he did not wish to complete the bio-data form.
JM was then given a Disclaimer in a Deportation Case form. He ticked the box which stated that at the police station he had stated that he would now comply with the Zimbabwean ETD application but refused to tick another box which stated: “I state that I will comply with the [ETD] progress as I am will[ing] to go home to Zimbabwe”. He explained to the officers that he was willing to comply and give the Secretary of State any information needed, but he did not want to return to Zimbabwe. He did not wish to sign the disclaimer because he did not wish to return.
On 4 February 2015, JM was served with a further section 35 notice requiring him to attend an interview at the Zimbabwean Embassy and, amongst other things: “to give your consent to return to Zimbabwe if requested to do so by an Embassy official”. JM attended the Embassy with immigration officers. He was asked by an Embassy official if he wanted to return to Zimbabwe and he replied that he did not want to go back to Zimbabwe. He said that he wasn’t willing to go but would if he had to. The Embassy official then declined to issue a travel document.
JM’s Punishment :
On 21 April 2015, immigration officers arrested JM at the removal centre for an offence under section 35, due to his failure on 11 February to comply with the section 35 notice. He was taken to the police station, where the officers interviewed him under caution. He repeated what he had said to the Embassy official.
JM then pleaded guilty at the Magistrates Court on 22 May 2015 and was sentenced to 9 months imprisonment, the custodial term of which was served in prison, not in immigration detention.
On 6 September 2015, at the end of the custodial element of his sentence, he was detained again under immigration powers.
Commencement of judicial review proceedings:
On 11 January 2016, the Secretary of State served on JM a further notice under section 35 of the 2004 Act. The notice required him to attend the Zimbabwean Embassy for interview on 20 January 2016, 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 that request was challenged by JM’s solicitors. On 19 January 2016, Judicial Review proceedings were filed.
The proceedings culminated in Jay J’s judgment in JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department  EWHC 1773 (Admin) in July 2016, meanwhile JM had been released from detention on 25 May 2016.
Observations as to Jay J’s judgement:
It was observed by the Court of Appeal that Jay J’s conclusion that the Secretary of State could not lawfully require JM under section 35 of the 2004 Act to tell Zimbabwean officials that he agreed to return to Zimbabwe voluntarily was based primarily upon his analysis having regard to Section 35 of the 2004 Act that on the correct construction of the section, subsection (2) provided an exhaustive list of the types of action which the Secretary of State could properly require to be undertaken by way of “specified action”.
It was further noted that Jay J had gone on to consider the two previous Zimbabwean cases directly on point: Mhlanga v SSHD  EWHC 1587 (Admin) and Babbage v SSHD  EWHC 148 (Admin). In the latter case, the judge had considered the impact of the settled policy of the Zimbabwean authorities only to accept voluntary returnees, in a case similar to the present of voluntary refusal. Garnham J in Babbage held that it could not be said that there was a realistic foreseeable prospect of returning the claimant to Zimbabwe. Jay J approved the approach of Garnham J on this issue.
The Court of Appeal also noted that jay J had concluded that there was no realistic prospect of a change of policy on the part of Zimbabwe during any part of the period germane to these proceedings. The Court of Appeal emphasized that there was no appeal against that conclusion.
What the Court of Appeal decided:
The Court of Appeal considered and decided as follows:
Addressing the Secretary of State’s submissions, the Court of Appeal decided that the views of the DPP and/or CPS as to the meaning of Section 35 section are wholly irrelevant and the Secretary of State was unable to point to any authority to the contrary. The correct analysis was that the CPS guidance and the views of the CPS are irrelevant to the issue of construction in the present case.
It was noted that those representing the Secretary of State were not in a position to say that the Zimbabwean authorities had ever been prepared to issue an ETD in respect of someone like JM who said “I don’t want to return but I will if I have to”. The Court of Appeal agreed with Counsel for JM that there was no evidence to that effect and the burden to produce such evidence would be on the Secretary of State.
The Court however could not accept that subsection (2) provided an exhaustive list. The natural and ordinary meaning of the words “in particular” is “especially” or “by way of example” which does not connote exclusivity. Even the alternative meaning which the judge preferred in his judgment of “specifically” did not seem to the Court of Appeal to connote exclusivity, but to be highlighting particular examples.
The Court stated that the section followed a commonly used Parliamentary drafting technique of granting a general power in subsection (1), albeit subject to (a) and (b), then specifying in subsection (2) the principal areas in which that power will be exercised. When a particular area in which the power can be used is specified and given express or implied limitations, then the Secretary of State cannot use the general power to undermine the limitations of the specific. In the Court’s judgment, that is the correct construction of section 35. The correct construction of section 35 is that the power given in subsection (1) is subject to the limitations within subsection (2) in respect of the specific areas of exercise of the power there enumerated.
In practice, in the present case, the Secretary of State could not require JM to tell Zimbabwean officials that he was willing to return to Zimbabwe when he was not, since that would be requiring him to do something which was inconsistent with the specific provision in (2) (g): “to attend an interview and answer questions accurately and completely”. He would be required to answer that specific question as to his willingness to return inaccurately or incompletely.
Since the Secretary of State knew or must be taken to have known that saying something along those lines would not satisfy the Zimbabwean voluntary returns policy and, accordingly, the Zimbabwean authorities would not issue an ETD, the inevitable conclusion is that, by requiring JM in the Notices to give his consent or agreement, the Secretary of State was requiring JM to lie to the Zimbabwean officials. In those circumstances, the Secretary of State was requiring him to do something which was inconsistent with subsection (2) (d), which she could not lawfully do.
JM’s Counsel was right that consenting to or cooperating with an application to the Zimbabwean authorities did not involve JM guaranteeing that that application will be successful. The judge was right to conclude in his judgment that, at the moment the interview started at the Embassy, JM was consenting to the application. In any event, the Secretary of State was still requiring JM to lie to the Zimbabwean authorities, which was contrary to (g) and which she therefore could not lawfully require him to do.
Accordingly, albeit through the application of the principle of construction that general provisions do not override specific ones rather than the adoption of the construction found by the judge that subsection (2) is an exhaustive list, the Court of Appeal considered that the judge’s conclusion, that the Secretary of State could not lawfully under section 35 require JM to tell Zimbabwean officials that he agreed to return voluntarily, was correct and the judge was right to grant a declaration to that effect.
The Court of Appeal found that given that conclusion in relation to section 35, the principal basis for the appeal by the Secretary of State against the judge’s finding of unlawful detention, that his finding was infected by his incorrect conclusion in relation to section 35, must fail.
Given that the judge was right to conclude that the Secretary of State could not lawfully require JM to tell the Zimbabwean authorities that he would return voluntarily, JM’s refusal to do so simply could not be characterised as deliberately obstructive. In any event, the extent and seriousness of any obstruction will vary from case to case.
Given that the Secretary of State could not lawfully require JM to tell the Zimbabwean authorities that he agreed to return voluntarily, his refusal to do so, even if it could be characterised as obstruction, must be at the lower end of the spectrum, given that, as the judge found, he cooperated other than in that refusal to agree to return voluntarily.
In the Court of Appeal’s judgment, the judge was right to conclude in applying Hardial Singh principle (iii) that, by 28 January 2015, when JM refused to sign the disclaimer, it was crystal clear that he was not a voluntary returnee, so that the Secretary of State would not be able to effect deportation within a reasonable period. Applying Hardial Singh principle (iii), continued detention thereafter was unreasonable and unlawful.
The question for the Court was not whether JM would have consented to removal seven months earlier if the Secretary of State had acted with reasonable expedition and diligence. The correct question was whether, if the Secretary of State had acted with reasonable expedition and diligence and had presented JM with the disclaimer seven months earlier, it would have become apparent seven months earlier that removal would not be possible within a reasonable period of time. The judge addressed that question in his judgment and answered it affirmatively, a finding of fact which could not be challenged on this appeal.
Jay J’s conclusion that JM was unlawfully detained between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015, when he was serving a sentence of imprisonment) was correct, as is his conclusion that this was a case which warranted an award of substantial damages.
The Secretary of State lost in her appeal to the Court of Appeal.
It is not known whether the Secretary of State will appeal to the Supreme Court. It won’t be surprising if she does so. This is because there are likely to be thousands of undocumented Zimbabweans in the UK whose removal she cannot enforce so long as such affected individuals do not have a valid Zimbabwean passport and further do not consent to voluntary return. The Secretary of State would have a fair idea of the numbers involved: either from those who continue in compliance with regular reporting without any pending claims or those awaiting resolution of submitted applications. In some cases, others have simply dropped below the radar waiting to resurface when in a better potion to rely upon the Immigration Rules or other provisions.
The Secretary of State may therefore permit such individuals to remain in the UK undocumented for a considerable period of time however equally she is unable to remove them.