By Frances Webber
A ruling in February that the continuing detention of one of the thirty-four Iraqi Kurds deported to Baghdad and refused admission to Iraq was unlawful, should benefit others held for deportation for years with no prospect of speedy return.
In October 2009, a charter flight left the UK with forty-four Iraqi deportees on board, bound for Baghdad. The flight, the first for five years, was the culmination of five years' negotiation with the Iraqi authorities. But the flight returned to the UK with thirty-four Iraqi Kurds still on it, all refused entry to Iraq. The refused Iraqis were returned to detention. A number of them launched legal challenges against their detention. In the lead case, that of Mr A, the High Court judge made a ruling which, although addressing Mr A's specific situation, will have positive implications for the other detainees.
Mr A, a refused asylum seeker, was being deported after being convicted of various criminal offences. He had been in custody since 2006, for much of that time serving a criminal sentence, and he had been awaiting deportation for 21 months. He had applied for bail many times - he said twenty-one, the Home Office said fourteen - and was always refused. He had initially signed a waiver agreeing to his removal to Baghdad, but then retracted it, saying he wanted to return direct to his hometown Kirkuk (where no flights go). The judge, Justice Langstaff, was not impressed with his evidence, holding there was a real risk that if released he would abscond.
But the judge also found that there was no reasonable prospect that the Kurds would be readmitted to Iraq within any foreseeable timescale. He held that the likely length of the men's detention was 'uncertain and very close to arbitrary'. This, he ruled, combined with the possibility of imposing conditions to make absconding less likely, made the continued detention unlawful.
In the course of the judgment, the judge described events leading up to the attempted deportation on 15 October 2009. A memorandum of understanding was signed between the Iraqi and British governments in 2005, under which deportation flights have landed in northern Iraq. A senior Foreign Office official was negotiating returns to Baghdad. The Iraqi authorities were always resistant to taking back Iraqi deportees from the UK, particularly non-Arabs, those without passports, and criminal deportees. The UK Border Agency appears to have pressed on regardless of these problems in its determination to fill a charter flight to Baghdad. Instructions to staff said no ethnic Kurds and no-one from outside central and southern Iraq should be included on the flight, but there weren't enough to fill the flight, so the instructions were revised - apparently without the agreement of the Iraqi authorities. A final passenger list was not sent to the Iraqi authorities, despite repeated requests, until three days before the flight was due to leave.
Events at Baghdad airport were the subject of reports and documentation which the Home Office did not fully disclose, to Mr A's lawyers, until after five separate hearings before five separate judges. But the men's Kurdish ethnicity played a large part in the refusal to admit them. On their return to the UK, all the men were re-detained, although UKBA officials were aware that it would take a significant period of time to get the Iraqi authorities to agree to their return. There had been no further discussion with the Iraqi authorities in the five months between the attempted deportation and the hearing. UKBA's argument for continuing to detain the men was that otherwise they might abscond, and that they were responsible for their own detention by refusing to go voluntarily.
Emphasising that he was only dealing with one man's case, the judge nonetheless made important statements of principle which will be applied in other cases, holding that the uncertainty as to when removal could be effected meant that detention was 'unreasonable and disproportionate' unless justified by serious risks to the public if the detainee was released.