The High Court recently considered the case of R (on the application of Babbage) v Secretary of State for the Home Department  EWHC 148 (Admin) Mr Justice Garnham sitting in the High Court released a detained Zimbabwean foreign criminal. In his judgement, he was extremely critical of the conduct of Government lawyers acting for the Home Office. The case has received a lot of attention in the media and what is crucial in the Claimant’s matter is the inability of the Home Office to remove him from the UK. We consider Mr. Babbage’s case in more detail.
The Zimbabwean authorities do not accept the return of a claimed Zimbabwean national who does not have a passport and who does not wish to return, this is the case for a number of countries and is not limited to Zimbabwean authorities.
The Claimant had no right to remain in the UK, had committed serious offences in the UK and his home country did not accept his return as he did not have a passport nor did he wish to return voluntarily. The Judge went on to comment that if released the Claimant is likely to abscond and to commit further offences. The legal question which arose before the immigration Judge was whether the Home Office could justify the Claimant’s continued detention when he had made it clear he did not agree to his return home.
The Judge’s Decision
The Judge’s answer to the legal question as to whether the Home Office could justify the Claimant’s continued detention was a “no”. The Judge therefore ordered the Home Office to release the Claimant from detention by 4pm the day following the end of the proceedings. The Judge commented that his primary reason for doing so was that
there have been no reasonable prospects of returning the Claimant to Zimbabwe since, at least, August 2015.
The Judge was extremely critical of the conduct of the Government lawyers. The civil servants who had conduct of the case had disclosed the relevant documents in full to the Government Legal Services. The Government Legal Service had then decided not to disclose those documents to the court or the claimant. The civil servants had decided among themselves what was specifically relevant to the hearing.
The Judge considered the proper approach in determining disclosure to the Court. He held:
It is wholly unacceptable for those acting for the Secretary of State to ignore or disregard the orders of the Court. Furthermore, once a Judge of this Court has identified specific documents which are required to be disclosed, there is no basis for the exercise of any discretion by the Home Office’s advisers. If the document falls within the class covered by the Order, it must be disclosed.
In particular, it is not open to the Secretary of State, or her advisers, to decide that some of the documents falling within the category made subject to the Order ought to be redacted to protect some interest of the Home Office or because they do not appear, to the Secretary of State, to be relevant to the issues in the case. The Order of the Court determines relevance and disclosability.
If it is thought that there are grounds on which material covered by the Court Order should be redacted before it is disclosed to the other party (or, conceivably, even to the Court) then a proper application should be made for the Order to be varied to accommodate that concern. What must never happen is that those acting for the Secretary of State (or any other party) decide, off their own bat, not to disclose material subject to an order of the court because they Judge it irrelevant.
The Judge held that the Home Office was therefore in breach of repeated orders by the court. The Judge commented that he was “extremely concerned about the attitude of the Secretary of State, or alternatively her advisers, towards the supply of documents necessary for the resolution” of the case.
Challenging A Home Office Deportation Order
The process of deportation is justified on the basis that it is for the public good and that this should outweigh the interest of the individual in question – unless the deportation breaches that individuals rights under the Human Rights Act 1998. Deportation can be challenged if it is contrary to the United Kingdom’s obligations under the Refugee Convention or ECHR. Regard may also be had to other relevant factors which constitute exceptional circumstances. There are two fundamental rights which could be breached when a deportation order is granted are the following Article 3 Human Rights Act 1998 which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment and/or article 8 Human Rights Act 1998 which states the following everyone has the right to respect for his private and family life, his home and his correspondence and no public authority can interfere with the exercise of that right.
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