Israeli Arab activist detention was (mostly) lawful

Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011). Read judgment.

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

The High Court has ruled that detention of a Palestinian activist, whilst he was challenging the decision to deport him on public policy grounds, was lawful in principle. However, the failure to explain to Raed Salah Mahajna the reasons for his detention in a language he could understand rendered the first 35 hours of detention unlawful.

The treatment of foreign nationals pending deportation has provoked a good deal of controversy, as reported recently. These cases are primarily ones where deportation is considered to be conducive to the public good because of serious criminal offences committed by the individual. In this case however, no crime was committed, but a history of activism perceived as anti-semitic preaching was considered a threat to security in the UK.

Mr Raed Salah Mahajna entered the UK as a result of errors made by the UK Borders Agency. He was the subject of an exclusion order because of fears that his brand of anti-Israeli activism could provoke violence in the UK. This order wasn’t served on him.

Two days later, he arrived in the UK and was allowed leave to enter, despite the order excluding him. Once news of his entry reached the Home Secretary, she decided to deport him; a decision which is being challenged in separate proceedings. Mr Mahajna was arrested in his hotel on 28th June and kept in detention until he was released on bail on 18th July. Mr Justice Nicol heard the challenge to the lawfulness of this detention.

Three grounds of challenge

The detention was challenged on three grounds: that it was contrary to the purpose of the legislation under which it was sanctioned; that it was contrary to the Secretary of State’s policy; and that it was, initially, procedurally improper.

Paragraph 2(2), Schedule 3 of the Immigration Act 1971 allows individuals to be detained pending the making of a deportation order. Clear principles limiting the exercise of this power were established in the case of R v Governor of Durham Prisoner ex parte Haridal Singh [1984] 1 WLR 704 (now often referred to as “the Hardial Singh principles”). The first of these is that the Secretary of State must intend to deport and detention must be for the purposes of deportation only (see paragraph 25 of the judgment for a summary of the principles).

Mr Mahajna argued that he was detained contrary to these principles. He did in fact have a return ticket booked for a week after his arrest. There was evidence that he was not considered at risk of absconding. And he was going to challenge his deportation, which his representatives suggested meant that deportation was no longer imminent and so should have ceased. His legal representatives argued that the real reason for the arrest was to stop him making the speeches for which he was in the UK.

The second argument draws on principles from R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671. As explained here, in that case the Supreme Court found that if the decision to deport was because of a policy that was unlawful, that would make the decision itself unlawful and hence invalidate the ground for detention. Here, it was argued that Mr Mahajna’s deportation would be contrary to policy set out in guidance document Enforcement Instructions and Guidance. It was said deportation could not be said to be imminent, as is necessary according to the guidance, when Mr Mahajna’s intention to appeal was known and that risk of harm to the public should only be considered as a reason to detain in cases of foreign national criminals.

The third argument concerned procedure of arrest. Mr Mahajna does not speak English. On arrest he was told, in English, of the legal basis for his arrest but not the facts – which would be insufficient even if Mr Mahajna did speak English. After that, the arresting officer translated a phrase to the effect that the arrest was for “immigration offences” into Arabic using an iPhone application. This was incorrect. Mr Mahajna was then told the correct reason for the arrest – that he was arrested pending deportation – at the police station, again in English. It wasn’t until the morning of 30th June – a day and a half after arrest – that Mr Mahajna’s lawyers could translate the grounds for arrest so that he could understand.

The ruling

Mr Justice Nicol rejected the first two arguments but accepted the third.

He accepted the Home Secretary’s argument that on arrest, Mr Mahajna’s deportation was imminent and he was only detained to make deportation easier. When it was known Mr Mahajna would appeal the decision, he was kept in detention partly to protect the public interest. It was ruled that under the Hardial Singh principles, this was lawful (paragraph 34).

The judge disagreed that the policy on removal where deportation is imminent related to foreign national criminals only. The relevant parts of the policy were cast sufficiently broadly to include rare cases where the public good would be threatened by people who had committed no crime (paragraph 41).

However, the third argument was successful. The requirement to give sufficient reasons is long-standing, and is classically stated in Christie v Leachinsky [1947] AC 573 (paragraph 43). Though a full list of reasons need not be given at the point of arrest, officers must do what is reasonable to inform the person of their arrest. Similarly, Article 5(2) of the European Convention on Human Rights (the right to liberty) provides:

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

In Mr Mahajna’s case it was ruled this did not happen. He was given reasons that were insufficient or wrong even in English, and there was no evidence that it would have been unreasonable to have someone who could speak Arabic at the scene. When he was finally informed of the correct reasons, the detention became lawful.

The ruling may be touted as a success for the activist. He did of course succeed in showing that his arrest and detention, for a day and a half, were unlawful. However, the case primarily shows that it is lawful to arrest and detain someone who is to be deported on public interest grounds even if they are not proven criminals.

There is an important sidenote to the case. Those criticising the use of human rights arguments in deportation cases should note that the unlawfulness of this detention was founded upon English common law principles, which arguably go further than the European Convention on Human Rights in this regard.

• Deportation, secrecy and knowing the case against you
• When detaining foreign criminals the rules are the rules, says Supreme Court
• Purpose, policy and publication: Analysis of Lumba ruling