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- Charles Spurgeon

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12 oktober 2012

Belangenafweging bij voortduren vreemdelingenbewaring

Volgens Britse rechter mag je weigering om zelf terug te keren maar juist een procedure te starten niet tegenwerpen bij belangenafweging vreemdelingenbewaring. Wij noemen dat wel bij frustreren uitzetting.

De Somalische afgewezen asielzoeker had een procedure lopen bij het EHRM en in de pv's en de verslagen van de toetsing van de vreemdelingenbewaring werd steeds genoemd dat hij zelf de bewaring kon laten eindigen door zelf terug te gaan. De rechter overweegt als volgt:

It is submitted first that following the receipt of the rule 39 indication, the Secretary of State failed to take any reasonable steps to acquaint herself with when a decision might be forthcoming from the ECtHR and the measure might be lifted. This is described as a "process" failing, amounting to a breach of the duty of inquiry referred to in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, where Lord Diplock, at page 1065B, expressed the question for the court as being: "did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?". The detention review forms contained a heading, "Likelihood of removal within a reasonable time scale (outline details of barriers to removal … and likely time need to resolve these)". Whilst the completed forms referred repeatedly under that heading to the existence of the rule 39 indication, they did not address the likely timescale for the lifting of the measure, and it is submitted that no or insufficient steps were taken to ascertain that timescale.

I do not accept that argument. It can reasonably be inferred from the history set out at paras 29-32 above that the Secretary of State was aware at all times of where matters stood in relation to the relevant ECtHR proceedings. Whilst communications with the court took place through the FCO, the Secretary of State was plainly in the loop. One gets further indications of this from the detention review forms themselves. For example, the form for August 2010 included the comment, in relation to the rule 39 cases in the ECtHR, that "[w]e have been advised that some of these case[s] are being looked at after a long time on hold and we are hopeful of a breakthrough in the not too distant future"; the December 2010 form stated that "[t]here has recently been some movement on some Rule 39 cases …"; and the forms for February 2011 and March 2011 stated, in relation to the ECtHR position, "we should in the very near future have an outcome". Nor do I accept that more should reasonably have been done to ascertain when a decision might be forthcoming. Appropriate inquiries and requests were made through the FCO. It is unrealistic to suggest that any better indication of the timescale might have been obtained had greater pressure been applied.

The second error alleged relates to what was said in the detention review forms about the possibility of the appellant's voluntary return to Somalia. The first form specifically relied on in this connection is that for July 2009, where one of the sections relating to authority to maintain detention (though not, it would seem, the last and operative section) includes this statement, after reference to the rule 39 indication: "Whilst this means that enforced removal is not possible, Mr M could reduce the length of time he spends in detention by withdrawing the application and returning voluntarily." A similar point features as part of the reasons for maintaining detention in some, though not all, of the later forms. For example, the form for February 2010 states: "Rule 39 ECHR is a barrier to removal but I note that FRS [facilitated return scheme] is an option that should be explored to the full to expedite his removal from the UK". The form for July 2010 states: "The length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject." By way of further example, the form for December 2010, having made reference to the application to the ECtHR and the rule 39 indication, states that the appellant "could minimise his time in detention by withdrawing that application and taking up FRS which is offered each month", and that he could "end his detention by volunteering to return (with or without FRS) at any time".

Mr Husain submitted that the Secretary of State erred in relying on the possibility of the appellant withdrawing his application to the ECtHR and returning voluntarily to Somalia. Reliance on the possibility of voluntary return in circumstances where the appellant had made an application to the ECtHR and had subsequently appealed to the tribunal against the refusal to revoke the deportation order was inconsistent with certain observations of Lord Dyson in Lumba. In relation to cases where return would be possible but the detained person was not willing to go, Lord Dyson said this:

"127. … Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a real risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees … or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return."

It is, however, important to note the context of those observations. Lord Dyson was dealing with a series of points concerning the application of Hardial Singh principles, in particular as to what is a reasonable period of detention. As he said at para 123, what was in issue was "whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful". Moreover, he was not suggesting that it was wrong to offer voluntary return; only that a detainee should not penalised for the refusal to accept such an offer, which was not relevant to whether detention had exceeded a reasonable period.

I do not accept that the references in this appellant's detention reviews to the possibility of voluntary return gave rise to any material error of law. It may have been unrealistic in the circumstances to pursue the question of voluntary return with him, but pursuit of that question did not mean that he was being pressured to withdraw his application to the ECtHR or his appeal to the tribunal or that he was being penalised for pursuing his legal remedies. For so long as his detention had not exceeded a reasonable period on Hardial Singh principles, it could properly be pointed out to him that voluntary return would reduce the length of detention. What could not properly be done was to treat the refusal of an offer of voluntary return as a relevant factor in determining whether a reasonable period had been exceeded. Whilst some of the passages in the detention reviews are not very happily expressed, I do not read any of them as involving that legal error. I note moreover that the decision that continued detention was justified was reached in all the detention reviews, irrespective of whether reference was or was not made in them to the question of voluntary return. This supports my view that the refusal of the offer of voluntary return played no material part in the assessment of whether detention should be maintained.

Accordingly, I reject the contention that the detention review decisions were vitiated by material public law error in the respects contended for by Mr Husain. To use the language of Lord Dyson in Lumba (see para 58 above), in neither respect was there a breach of public law bearing on and relevant to the decision to detain.


Bron: http://www.bailii.org/ew/cases/EWCA/Civ/2012/1270.html

Dus deze meneer schoot er niets mee op. Maar leuke uitspraak om te overleggen in zaken waar bewaring over 6 maanden heen gaat of IND roept dat meneer altijd kan vertrekken.



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