British judge frees Iraqi sex assault asylum seeker waiting deportation
An Iraqi asylum seeker jailed for an "intense and frightening" sexual assault on a woman was ordered to be released into the community by the High Court today, despite strong opposition from Home Secretary John Reid.
The man, "AM", who comes from Baghdad, cannot be named for legal reasons.
He was ordered to be set free, subject to certain restrictions, while he challenges moves by Mr Reid to deport him and seeks damages for unlawful detention.
He was convicted of indecent assault at Liverpool Crown Court in March 2005 and sentenced to 15 months' imprisonment.
Even though he has completed his sentence, Mr Reid wants to continue detaining him under immigration rules until he can be deported.
But AM has now been detained this way for some nine months, and Mr Justice Hodge ruled at London's High Court today that it was "arguable" that his detention - given there was no current prospect of him being deported - had become unlawful.
Mr Reid's lawyers said AM should not be released because there was a risk of him absconding. They also argued AM had committed a serious criminal offence, and it was in the public interest to remove him from the UK.
He had not been removed so far because he had an outstanding appeal against the deportation order. The Home Secretary contended there was no impediment to AM's removal to Iraq, provided that he co-operated in returning voluntarily.
Mr Reid's lawyers also drew attention to remarks made by the judge who sentenced AM for assault, saying that his victim had been "badly affected" by the "short but rather intense and frightening assault" and she was "shaking and in tears" throughout most of her evidence.
The crown court judge told AM that the UK had provided him with "sanctuary" and he was under a corresponding obligation to abide by its laws, "one of which is not sexually assaulting women."
But Mr Justice Hodge ruled today against the Home Secretary and said there was no evidence before him that AM was likely to reoffend.
There had also been "lack of detail" before him from the Home Office about the crime AM had committed.
The judge ordered that AM be released under a restriction order and given permission to seek judicial review and a High Court declaration that he was being unlawfully detained.
If his application is successful, he will also be entitled to seek damages for unlawful detention.
Mr Justice Hodge said AM, whom evidence suggested had become depressed in detention, had clearly indicated that he wished to remain in the UK.
His outstanding appeal to the Asylum and Immigration Tribunal against deportation "might ultimately be successful".
The judge said: "There appears to be no prospect of any compulsory return to Iraq at present, and there has been no such prospect throughout the applicant's detention."
The judge said it stood to AM's credit that he had voluntarily surrendered when he knew in July last year that he was wanted by the immigration authorities.
There was nothing in the papers that gave any notion that he was likely to reoffend.
The sentencing remarks of the trial judge indicated what a bad effect his crime had had on the victim - "but do not address the risk of further reoffending".
There was also a lack of detail before the High Court about the crime itself.
The judge ruled: "On the basis of the information I have before me it is arguable that the current detention of the appellant is unlawful."
"Given there was no present possibility of him being compulsorily returned to Iraq, and given the fact the appellant did voluntarily present himself once he knew the immigration authorities wished to see him, I regard it as right to make an interim order permitting the appellant's release."
The judge said AM would be released under a restriction order, but the terms would now have to be arranged "with some care".
In particular there would need to be an address at which he would have to reside, and his name would have to be recorded on the Sex Offenders' Register.
"Once the terms of the restriction order can be agreed it is right that the detention should not continue."
AM claimed asylum on his arrival in October 2002. It was refused but he was granted exceptional leave to remain in the UK for four years.
He was released from prison in October 2005. The Home Office decided in June last year that, following his conviction, it would be "conducive to the public good" to deport him.
He was detained in July 2006 pending moves to carry out the deportation and has been held ever since.
Twice refused bail by an immigration judge, his appeal against deportation was dismissed. He has applied to the Asylum and Immigration Tribunal (AIT) for his case to be reconsidered.
His lawyers argue the deportation decision made against him was flawed because it was not in accordance with Home Office policy at the time of his release from prison in October 2005.
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