DZ (Eritrea), R (on the application of) v The Secretary of State for the Home Department [2017] EWCA Civ 14

Case No C4/2014/0844[2017] EWCA Civ 14
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 92 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
His Honour Judge Birtles
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/01/2017
Before
LADY JUSTICE GLOSTERVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE DAVID RICHARDSSIR STEPHEN TOMLINSON
Between
THE QUEEN ON THE APPLICATION OF DZ (ERITREA)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Declan O'Callaghan (instructed by Duncan Lewis & Co) for AppellantJulie Anderson (instructed by Government Legal Department) for RespondentHearing Hearing date : 21 July 2016
Judgment

Introduction

[1]The appellant appeals against an order made by HHJ Birtles, sitting as a deputy judge of the High Court (“the judge”), dismissing the appellant’s judicial review claim for declaratory relief that he had been unlawfully detained and tortious damages for detention. The judgment (“the judgment”) is to be found at [2014] EWHC 92 (Admin).[2]The appellant contended before the High Court that he was unlawfully detained by the Secretary of State for the Home Department (“the respondent”) for some or all of his detention from 28 November 2008 to 11 July 2012, a period of some 43 months or 1322 days. During such time the respondent stated that she was seeking to deport the appellant to Ethiopia.[3]The principal issue said to arise on the appeal is the lawfulness of the reasoning adopted by the judge and his approach to the application of the relevant principles set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704.[4]Permission to appeal was granted by Davis LJ on 5 August 2014.[5]In this court, Mr Declan O’Callaghan appeared on behalf of the appellant as he had below; Miss Julie Anderson appeared on behalf of the respondent.

Background facts

[6]The essential facts are set out in the judgment. The appellant was born in Ethiopia in 1978 (prior to Eritrean independence in 1993). He is an ethnic Eritrean. He entered the United Kingdom on 28 August 1994, in possession of an Ethiopian passport (Eritrea being de jure a province of Ethiopia at the time the passport was issued). He was an Ethiopian national upon his arrival in this country. He was aged 16. On 1 September 1994 he claimed asylum.[7]The appellant’s asylum application was refused in a decision dated 9 May 2000, but he was granted exceptional leave to remain in the United Kingdom until May 2004. The appellant did not make any application for a further period of leave and he has remained unlawfully in the UK since May 2004.[8]During the period from 1999 to 2007 the appellant was convicted of a number of drug-related and other criminal offences, all but one resulting in non-custodial sentences. That was a conviction for attempted robbery at Blackfriars Crown Court on 15 August 2001, for which he was sentenced to two years imprisonment.[9]No deportation action was taken at the time of the appellant’s release from prison in 2002. On 25 April 2006 the appellant applied for indefinite leave to remain. That was refused on 25 May 2007 in light of his extensive criminal record.[10]A notice of a decision to make a deportation order was served on the appellant on 25 May 2007. He appealed and, after an extended appeal process, including a High Court review, his appeal rights were finally exhausted the first time around on 23 September 2008. By this stage the appellant had already been recorded as an absconder (on 22 August 2008) after he had repeatedly failed to comply with reporting requirements and efforts to trace him had failed.[11]A deportation order was signed in relation to the appellant on 28 October 2008. The appellant entered immigration detention on 28 November 2008, after being apprehended by the police. The Appellant was admitted to Oakington IRC on 29 November 2008. A deportation order was served on him formally on 22 January 2009. On 8 March 2009 he was admitted to Lindholme IRC after his poor conduct at Oakington IRC led to a request for his removal from that IRC to maintain good order.[12]On 17 March 2009 the appellant was served with removal directions. The removal directions were cancelled when the appellant’s representatives responded with an application to revoke the deportation order. That application was considered and, when it was refused on 11 February 2010, the appellant was provided with a right of appeal. That appeal was dismissed by the First-tier Tribunal (“FtT) on 23 June 2010 and permission to appeal refused on 16 July 2010 by the FtT. On 13 August 2010 the Upper Tribunal also refused permission to appeal. The appellant brought an out of time judicial review challenge to the refusal to grant permission to appeal (“the appellant’s Cart Based on the procedure challenging refusals to grant permission to appeal adopted in R (on the application of Cart) v The Upper Tribunal [2012] 1 AC 663. judicial review proceedings”), which in turn was refused permission on the papers on 16 February 2011. Removal directions were re-set for 7 March 2011, but these were cancelled on 5 March 2011 when the Secretary of State was informed that the appellant had renewed his application for permission to bring judicial review in the appellant’s Cart judicial review proceedings. Those proceedings were then stayed pending the Supreme Court’s judgment in Cart; the hearing had concluded on 17 March 2011 but the Supreme Court did not hand down its judgment until 22 June 2011. Subsequently, at a renewed oral hearing on 5 December 2011 of the appellant’s Cart judicial review proceedings, the High Court refused permission for a judicial review.[13]Meanwhile the appellant had applied for bail but withdrawn the application on 4 October 2010. The appellant made a further application for bail some months later that was refused by the FtT on 14 June 2011. His representatives made a further application for revocation of the deportation order on 7 October 2011. The refusal of that application (with no further in-country right of appeal) was challenged by way of a further application for judicial review on 17 November 2011. Permission for judicial review was refused at the oral hearing on 5 December 2011.[14]On 27 May 2012 the appellant was returned to Ethiopia. On arrival he told the Ethiopian officials that he was not Ethiopian but Eritrean. The Ethiopian Officials rejected the removal on the basis that the EU letter was insufficient travel documentation for these purposes and the appellant was returned to the UK. In interview on 30 May 2012 the appellant insisted that he wanted to return to Ethiopia not Eritrea. On 19 June 2012 the appellant confirmed that he wanted to return to Ethiopia.[15]Removal directions were re-set for 27 June 2012. That removal did not proceed to completion as the airline refused to allow the appellant to board as it considered that he did not have the correct paperwork.[16]On 2 July 2012 the appellant confirmed in interview that he wished to return to Ethiopia so investigations were made to re-set removal directions for 11 July 2012.[17]On 6 July 2012 the appellant applied for bail and served a pre-action protocol letter in the current judicial review proceedings.[18]On 9 July 2012, removal directions were set for 11 July 2012 with a different airline. A response to the pre-action protocol letter was provided by the respondent on 10 July 2012. Removal directions were cancelled on notification of the issue of the current judicial review proceedings. At the bail hearing held on 11 July 2012, the FtT was informed that the removal directions had been cancelled in the light of the current judicial review proceedings, bail was granted and the appellant released that day.

The judgment

[19]The judge came to the conclusion that he was not satisfied that the respondent had breached either the Wednesbury principle or the Hardial Singh principles and found that the detention of the appellant was lawful. The judge quoted at length the statement of the relevant Hardial Singh and other principles as set out by Haddon-Cave J in R (on the application of Ahmed Yakoub Mesbah Belkasim) v. Secretary of State for the Home Department [2012] EWHC 3109 (Admin) at paragraphs 102-106. He concluded that the appellant’s original detention had been lawful and that, in relation to none of the respective periods of detention relied upon, had the Hardial Singh principles been “engaged”, “involved” or “breached”. The critical paragraphs of his judgment are paragraphs 47-53, where the judge deals with the relevant factors. He said:
“The five factors 47. Some of these have also been identified by Mr O'Callaghan and I have referred to that earlier in this judgment. I take each of the five factors in turn. 1. Lack of cooperation 48. There was a failure to cooperate with the removal process from 30th December 2008 to 18th October 2010. I have already referred to some of them. The relevant references are core bundle 1/359 (22nd January 2009); 1/362 (2nd April 2009); 21/364 (17th April 2009); 1/365 (12th May 2009); 1/332 (25th November 2011). 2. Risk of Absconding 49. Prior to his detention there were three failures to report: core bundle 1/431. In addition there was a breach of a Community Rehabilitation Order in September 2004. There was therefore some risk that the Claimant would abscond and it was a factor the Defendant was entitled to take into account: core bundle 1/681. 3. Risk of reoffending 50. It is only necessary to refer to the long list of offences committed by the Claimant whilst on bail and they were mostly after his custodial sentence. Furthermore there was misconduct whilst in custody and a denial of criminal activity. The Defendant's view places this as high: core bundle 1/684. She was entitled to come to the conclusion that there was a high risk of the Claimant reoffending. 4. Effect of detention on the Claimant 51. Mr O'Callaghan has not submitted that the continued period of detention has had a detrimental effect on the Claimant. Defendant's conduct 52. There had been a large number of detention reviews supplemented by the Monthly Review statements supplied to the Claimant. There was no criticism about the detention conditions. Finally, the Defendant was entitled to take account of the Claimant's attitude to deportation to Eritrea and Ethiopia. Thus on the 16thSeptember 2009: core bundle 1/368, the Claimant stated that he did not wish to return to Eritrea. On 22nd February 2011: core bundle 1/376, he stated that he did not want to return to Ethiopia but would return to Eritrea. On 18th June 2012: core bundle 1/414 he was now prepared to return to Ethiopia. I accept Mr Whale's submission that the Claimant's changing views affected the approach of the Defendant to the Eritrean embassy in London or the British embassy in Addis Ababa. She was entitled to take the Claimant's views into account. Conclusion 53. For these reasons I am not satisfied that the Defendant has breached either the Wednesbury principle or the Hardial Singh principles and I find that the detention of the Claimant was lawful. It follows that the claim is dismissed.”

Grounds of appeal

[20]Before us the appellant pursued the following five grounds of appeal identified in his grounds of appeal dated 12 March 2014: i) “The unlawful reliance upon 5 identified factors without considering the diminishing impact of the said factors upon the lawfulness of detention over time. The factors were unlawfully treated as being “static” in nature immune from the [e]ffect of time or particular facts arising; ii) A failure to lawfully assess the reasonableness of pursing removal to Ethiopia over three years when the Ethiopian authorities expressed its concern as to whether the appellant was an Ethiopian national as early as March 2009 and when it was confirmed in June 2009 that the appellant’s parents had been deported from Ethiopia as enemy aliens in 1998 [the appellant was detained for another 3 years as the respondent sought to remove him to Ethiopia]; iii) A failure to lawfully assess the reasonableness of continuing detention when the respondent accepted between June 2009 and March 2010 that removal was not imminent; iv) A lack of lawful reasoning throughout the judgment; v) A failure to expressly consider favourable precedent authority relied upon both in the appellant’s skeleton argument and submissions.”[21]A sixth ground of appeal originally appearing in the grounds of appeal (viz. that the judge had failed “to make a finding of fact as to whether the appellant was lawfully detained from the outset of his detention despite this being an issue before the Court”) was not pursued before this court.

The grant of permission to appeal

[22]In granting permission to appeal Davis LJ stated:
“a detention totalling over 3 ½ years (in circumstances where it was established early on that the applicant was of Eritrean ethnicity) has to be a matter of concern. Further, I am not quite clear what the judge meant by saying, in respect of various of the points, that Hardial Singh principles were not “engaged” or “involved” (as opposed to “breached”) ….. On the whole, I think there is an arguable case here that so long a period of detention was, in the circumstances, not justifiable.”

The appellant’s submissions

[23]Before this court Mr O’Callaghan submitted, in summary, as follows: i) The judge failed to provide sufficient, or on occasions any, reasons as to why he rejected the appellant’s arguments that the various periods of detention were unlawful. His repeated mantra that the Hardial Singh principles were not engaged or breached did not explain why, in circumstances where, as the appellant contended, it was more likely than not that Ethiopia would not accept his return, and the respondent was not pursuing return to Eritrea with any vigour, the judge had concluded that the various periods of detention were reasonable. ii) The judge’s reliance upon the appellant’s non-cooperation with the emergency travel document (ETD) process failed to consider the appellant’s argument that the respondent had sufficient information for such an application in any event as it held a copy of the appellant’s expired Ethiopian passport on file, which contained sufficient details establishing the appellant’s identity as known to the Ethiopian authorities. iii) If the respondent were seeking the removal of a detained foreign national to a country, she had to possess a reasonable belief that the country in question would admit the detained foreign national and that such admission would be secured within a foreseeable period of time. The respondent in the present case could not reasonably have held such a belief that Ethiopia would accept the appellant from 17 March 2009 onwards, or alternatively from 15 June 2009 or dates thereafter. iv) The judge failed to engage with the appellant’s argument, which relied upon supporting evidence, that for 9 months between June 2009 and March 2010 the respondent accepted that removal was not imminent. v) The judge failed to engage with the respondent’s tardiness, an example of which was her position between June and October 2011 that she was still awaiting judgment from the Supreme Court in R (Cart) v Upper Tribunal [2011] UKSC 28 and there was no prospect of an immediate resolution of the issue. Judgment in Cart was given by the Supreme Court on 22 June 2011. vi) The core of the appellant’s claim was that from 17 March 2009 the respondent was aware that the Ethiopian authorities would not accept the return of the appellant as it believed him to be an Eritrean national. Throughout this time the respondent was well aware of the recent history in relation to Ethiopia and Eritrea, including a border war, and the expulsion of several thousand people from both countries solely due to their ethnicity. From March 2009 to July 2012 the respondent sought only to remove the appellant to Ethiopia, despite the fact that Ethiopia had expressed concern at being asked to receive the appellant and the respondent had been aware (from June 2009) that Ethiopia had deported the appellant’s parents and brother on the grounds of their ethnicity. vii) The five factors identified by the respondent, upon which she claimed she was entitled to rely when continuing to detain the appellant, were invoked as a mantra by the judge without any consideration being given by him to the diminishing impact of the factors upon the lawfulness of detention over time. Those factors were wrongly treated as being “static” in nature, immune from the effect of time or particular facts arising. In particular, in relation to each of the relevant factors: (i) Lack of co-operation a) The judge relied upon the lack of co-operation as establishing a lawful basis for detention without engaging in a detailed consideration of the issues placed before the court, viz. the history of the appellant’s parents and brother being expelled from Ethiopia, the finding by the Tribunal that the Ethiopian authorities would not accept the appellant, the expressed concern of the Ethiopian Embassy that the appellant was an Eritrean and the express confirmation detailed on the Home Office file that removal was not imminent in light of the appellant’s ethnicity and the deportation of his parents. b) The respondent relied upon the appellant’s non-compliance with the ETD process as establishing the lawfulness of detention between 29 November 2008 and 15 June 2009. But the respondent had held a copy of the appellant’s expired passport on file, providing sufficient details as to the identity of the appellant for the respondent to request an emergency travel document. c) In any event, even if such failure to co-operate was determinative (which was not accepted), a failure to co-operate between 30 December 2008 and 18 October 2010 did not justify detention after October 2010. ii) and iii) Risk of absconding and risk of re-offending d) Although Mr O’Callaghan accepted that the respondent could rely upon previous failures by the appellant to report and a breach of a community rehabilitation order, nonetheless such concerns were not static in nature and should have been subject to constant review in light of relevant facts and circumstances. e) The appellant had numerous criminal convictions but only 1 custodial sentence in 2001 from which he was released from prison in 2002. In the 6 years from release to detention, his convictions were mainly for possession of drugs for personal use or common assault/harassment that, although criminal in nature, were not considered to meet the custody threshold. Therefore, any risk of re-offending concerned re-offending along similar lines rather than such serious offences that offered a high risk to the public. That was a relevant consideration: see R (on the application of Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057 (Admin), at paragraph 6. f) By placing the same weight upon the risk of absconding and the risk of re-offending throughout the course of detention, the judge failed to place the diminishing nature of these concerns in the balance against the increasing difficulty in securing the appellant’s return to Ethiopia. It could not be said that there was some reasonable or sufficient prospect of removal in circumstances where the Ethiopian authorities expressed concern as to the appellant’s nationality in 2009 and had expelled the appellant’s parents: see R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804, at paragraph 58. g) It remained within the power of the respondent to put in place means of securing the appellant’s compliance with temporary admissions conditions: e.g. reporting and tagging. iv) Effect of detention upon the appellant h) The judge further relied upon there being no detrimental effect upon the appellant which was attributable to detention. That was not a requirement to establish unlawful detention. i) The Supreme Court confirmed in Lumba that all a claimant has to prove in order to establish false imprisonment was that he was directly and intentionally imprisoned by the respondent, whereupon the burden shifts to the respondent to show that there was lawful justification for doing so. v) Respondent’s conduct j) In relation to the fifth factor, the fact that there was no complaint as to the physical conditions of detention did not render detention lawful. k) The judge relied upon the appellant’s failure to engage with the ETD process, without engaging with the fact that the Ethiopian authorities had informed the respondent that it considered the appellant to be an Eritrean national. The appellant cannot be criticized for asserting that he is Eritrean, rather than Ethiopian, in circumstances where he is aware that his family was deported from Ethiopia on the grounds that they were ethnically Eritrean. l) The finding that the appellant’s expressed interest in returning to Eritrea positively impacted upon the lawfulness of detention cannot be sustained in circumstances where the respondent did not actively seek to secure an ETD from the Eritrean authorities. Even when the appellant indicated a willingness to return to Eritrea in February 2011 there was no evidence of any application by the respondent to secure travel documentation from the Eritrean authorities. viii) Such failings on the part of the judge were significant errors of law and materially impacted upon the judgment and accordingly the appeal should be allowed. If this court were to determine that there were no, or insufficient, findings of fact upon which to proceed, the appellant sought remittal of his claim to the High Court. Alternatively, if the Court of Appeal were content to proceed to consider the claim substantively, then the appellant relied upon his skeleton argument filed with the High Court and dated 28 October 2013 as to the quantum of damage.[24]It is not necessary for me separately to rehearse Miss Anderson’s submissions on behalf of the respondent since they are adequately reflected in my reasons for reaching my decision.

Discussion and determination

[25]There was no dispute as to the relevant legal framework or policy guidance under which the appellant was detained. He was the subject of a deportation order and was detainedpursuant to paragraph 2 of schedule 3 to the Immigration Act 1971. This provides as follows:
“2.—… (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”
[26]It was likewise common ground that the relevant policy is (or was at the relevant time) set out in guidance concerning the detention of foreign national prisoners or offenders or foreign criminals (“FNPs”) in Chapter 55 of the Enforcement Instructions and Guidance (‘EIG’). Paragraph 55.1.2 states as follows:
“Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful.”
This reflects the relevant detention policy that normally a FNP with a conviction for a serious offence would be detained until deported. In R (Lumba) v Secretary of State for the Home Department) [2012] 1 AC 245 (at paragraphs 53 -54) Lord Dyson JSC (with whom the majority of the members of the Supreme Court agreed on this point) held that such a normal practice in favour of detention of FNPs was lawful, provided that it was understood that (i) the Hardial Singh principles were to be observed and (ii) that each case was to be considered individually on its own merits.[27]There was likewise no dispute as to the correct articulation of the Hardial Singh principles governing the exercise of the power to detain where a deportation decision has been made. These principles were summarised by Dyson LJ in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at paragraph 46 and later approved by him in Lumba (supra) as follows: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. ii) The deportee may only be detained for a period that is reasonable in all the circumstances. iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention. iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.[28]It was also common ground that it was for the court to decide for itself whether detention had become unreasonable in breach of the Hardial Singh principles (rather than to review on a Wednesbury basis whether the Secretary of State was rational to consider it reasonable necessitating a trawl through all the detention reviews); see R(A) [2007] EWCA Civ 804. However, I accept the respondent’s submission that:
“there may well be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper.”
See per Keene LJ in R(A) at paragraph 62. This point was emphasised by Sales J in R(MH) v The Secretary of State for the Home Department [2009] EWHC 2506 (Admin) at paragraph 79: “In addressing the question on ground (1), the court has to ask whether there was "some prospect" of the Claimant being removed within a reasonable period: see R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207, [32]-[33] per Lord Brown of Eaton-under-Heywood, referring to the similar power of detention in paragraph 16 of Schedule 2 to the 1971 Act. It is for the court to assess whether the period in contemplation was a reasonable one in all the circumstances. The court is not confined to applying Wednesbury principles to assess whether the Secretary of State himself rationally held the view that the period in contemplation was reasonable. But at the same time, in a case such as this, where a judgment about the availability of removal depended in a significant way upon an assessment of how a foreign government would react, the court will be slow to second-guess the assessment in that regard which is made by the executive. This reflects the fact that the executive is much better placed than the court to assess the likely reactions of foreign governments, both because its representatives are directly involved in the relevant negotiations with those governments and because they are themselves, or have access to assessments by, skilled diplomats and officials with knowledge and experience of foreign affairs.” (My emphasis.)[29]Despite Mr O’Callaghan’s detailed submissions, he has not persuaded me that this court should allow an appeal against the judge’s decision. My reasons may be summarised as follows.[30]Although, as Davis LJ pointed out, it is perhaps unfortunate that the judge utilised the somewhat opaque terminology that “the Hardial Singh principles were “not engaged” or that they were “not involved”, it is obvious from the context that what the judge meant was that either the delay was not attributable to the respondent, or that it was attributable to the appellant or that the principles were not breached. In my judgment, he was clearly entitled to come to that view on a detailed analysis of the evidence in respect of each period.[31]Nor do I consider that there is any substance in Mr O’Callaghan’s submission that the appeal should be allowed because the judge failed to provide sufficient reasons as to why he rejected the appellant’s arguments that the various periods of detention were unlawful. The judge had set out the relevant chronology in considerable detail and, whilst his reasoning was not extensive, it is clear that he had considered the relevant evidence and objectively balanced the various factors involved, including the length of detention at particular points in time, the difficulties in obtaining appropriate travel documentation and the non-cooperation of the appellant. In those circumstances, as this court said in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 at paragraph 34, because in this kind of case there was a significant area of judgment open to the judge in the assessment of what a reasonable period was in all the circumstances, it was necessary for an appellant to show that the judge's decision was either inconsistent with his findings of fact, or that he had misapplied the principles of law or that he had reached a decision that was outside the ambit of judgment open to him. This, in my judgment, the appellant has singularly failed to do. The fact that this court might have reached a different view is irrelevant. The point was put even more forcibly in R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270; [2013] 1 W.L.R. 649; [2013] A.C.D. 14 at paragraph 46 (an approach which, in Fardous, this court said should be followed): “I have taken the view that the conclusion reached by the deputy judge on each of the issues considered above deserves considerable respect, given that he directed himself correctly on the law and undertook the task of applying the law to the facts in an obviously careful and conscientious manner. At para 7 of the judgment of the court in Abdi, Sedley LJ pointed out that the concepts of "reasonable period" and "in all the circumstances" are open-ended and describe "a large area of judgment to be made in each case that comes before the court". He said at para 62: "The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts". In similar vein, Longmore LJ observed in MH at para 73 that judges "have to make a judgment taking a range of (often competing) factors into account", but that "once a judge has done that, it will be a rare case in which it would be right for this court to interfere". I agree with those observations, which in my view represent the correct approach of an appellate court to cases involving the application of Hardial Singh principles.” (My emphasis.)[32]I likewise reject Mr O’Callaghan’s submission that, in circumstances where, as the appellant contended, it was more likely than not that Ethiopia would not accept his return, and the respondent was not pursuing return to Eritrea with any vigour, the judge had wrongly concluded that the various periods of detention were reasonable. I likewise reject his submission that the judge was bound to conclude that the respondent could not reasonably have held a belief that Ethiopia would accept the appellant from 17 March 2009 onwards, or alternatively from 15 June 2009 or dates thereafter. In my judgment the judge was clearly entitled to conclude on the contemporaneous material that the respondent’s approach to seeking deportation to Ethiopia was reasonable throughout the relevant period, during which there was in my view some realistic prospect of removal back to Ethiopia within a reasonable period.[33]Mr O’Callaghan relied in particular on two factors relating to the attitude of the Ethiopian authorities at the relevant times. The first was an ‘expression of concern’ by the Ethiopian authorities as to the appellant’s nationality on 17 March 2009. However, the concern expressed was actually about the use of the EU letter removal documentation reliant on the expired passport to show nationality, as opposed to any criticism of using the ETD route. As Miss Anderson pointed out, in fact, the deferral of removal directions on the basis of this documentation point was of no causative effect, since the directions for removal could not be re-set due to the various legal challenges that the appellant then set in motion. Moreover, as the judge himself found, the appellant could not complain about any ‘failure’ to use the ETD route given that, at the ETD interview fixed for 2 April 2009, the appellant was abusive and failed to comply with the ETD process (for the third time), indicating that he would not complete the ETD form no matter how many times the UK authorities asked him to do so. In addition, the appellant refused to be photographed for the ETD form or to provide his fingerprints. In circumstances where an individual fails to cooperate with the removal process, the UK authorities are entitled to infer that removal would be possible with cooperation: see R(MH) v Secretary of State for the Home Department [2009] EWHC 2506. Further, the appellant could have demonstrated that he would be denied his Ethiopian citizenship by applying to renew his passport, but he chose not to do so.[34]Accordingly, I accept the respondent’s submission that the judge was right to conclude that there remained ‘some prospect’ of removal within the relevant reasonable period applicable at this stage. This was not a situation in which it was appropriate for the court to second guess the Secretary of State’s views as to how the Ethiopian state might respond. In my judgment the judge was entitled to conclude that the respondent at all material times had a reasonable belief that Ethiopia would admit the appellant and that such admission would be secured within a foreseeable period of time. The fact that his deportation may not have been “imminent” or “impending” did not mean that the Secretary of State could not entertain such a belief: see Khadir [2005] UKHL 39 [2006] 1 AC 207 at paragraph 32; R (A) (supra) per Toulson LJ at paras 35, 43 and 58-9; and in R (MH)[2010] EWCA Civ 1112 per Richards LJ at paragraphs 64-65. Likewise, the fact that the Secretary of State is unable to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all, does not prevent there being a realistic prospect of removal: see per Richards LJ in Muqtaar at paragraph 37. Thus the fact that (as the appellant submitted) for 9 months between June 2009 and March 2010 the respondent may have considered that removal was not imminent, did not predicate that return to Ethiopian was not possible within a reasonable period of time.[35]The second allegedly critical point upon which the appellant relied was the information provided by the appellant’s representatives in June 2009 to the effect that the appellant’s parents had been deported from Ethiopia some years after they had chosen to return there, leaving the appellant in the UK. However, contrary to Mr O’Callaghan submissions, in my judgment it did not follow that the respondent had to conclude from that information that deportation of the appellant to Ethiopia within the relevant reasonable period was impossible. On the contrary, it merely indicated that there was more than one potential destination to which the appellant might have been deported.[36]I likewise reject Mr O’Callaghan’s argument that the judge failed to give appropriate consideration to what was said to be “the diminishing impact of the [Hardial Singh] factors upon the lawfulness of detention over time” or that he otherwise gave inappropriate weight to the various factors in arriving at his conclusion. The relevant factors here were the appellant’s lack of cooperation, the risk of him absconding, the risk of him reoffending, the effect of detention upon the appellant and the respondent’s conduct. In my view the judge was clearly entitled to reach the conclusion that, taking the relevant factors into account, the continued detention of the appellant was not unlawful as being in breach of the Hardial Singh principles.[37]Thus, for example, the appellant’s non-cooperation throughout the entire period of his detention was clearly relevant to the judge’s conclusion that the appellant had not been unlawfully detained, since it was the only reason that the appellant’s detention had been prolonged. As Miss Anderson submitted, the appellant could at any time have brought his detention to an end by complying with the deportation order and leaving the UK, as indeed he had a statutory obligation to do. Even if, which the appellant certainly had not established on the evidence (and which the respondent denied), the appellant would not have continued to be recognised as an Ethiopian national and, if he had applied for renewal of his passport, that would have been refused, there was every reason to suppose that he would have been able to obtain an Eritrean identity card, as his siblings in the UK had done, and to go to Eritrea to join a further brother who was there Indeed, this was supported by the findings of an earlier decision of the Asylum and Immigration Tribunal delivered on 23 January 2008. . The fact that in interview the appellant had said that he did not want to return to Eritrea could not count as a factor against the respondent in assessing whether the delay was reasonable; on the contrary, it demonstrated further lack of cooperation on his part.[38]Furthermore, as Miss Anderson submitted, the issue regarding removal documentation for Ethiopia appeared to have focused on the type of documentation used. The appellant had not established that the response of the Ethiopian authorities amounted to a denial of nationality on their part. It was not clear on the evidence whether the appellant had been returned from Ethiopia on removal because an EU letter was used (rather than an ETD). The issue may well have been that the removal took place at a weekend when the agreement with the Ethiopian authorities was that such removals would be accepted only on weekdays and there was a concern that all the necessary documents to accompany the EU letter may not have been in the documentation pack. Even if the concern had been the use of an EU letter, as the judge found, that was a direct result of the appellant’s refusal to complete the ETD application forms and be photographed and fingerprinted.[39]It is clear from the authorities dealing with the application of the Hardial Singh principles that a distinction has to be drawn between genuine resistance to removal based on a subjective well-founded fear of persecution The earlier decision of the Asylum and Immigration Tribunal had held that there was no risk to the appellant of persecution if he was returned to Ethiopia. and deliberate obstruction such as the appellant engaged in in the present case. I accept Miss Anderson’s submission that those principles cannot be used to facilitate an individual defeating the statutory purpose and forcing his release from detention, on the basis of deliberate obstruction of the lawful deportation process. Necessarily, what amounts to a reasonable period for the respondent to implement the removal process will be critically dependent on the extent to which the FNP obstructs or cooperates with the deportation process. In the present case the judge was, in my view, clearly entitled in evaluating what was a reasonable period, to conclude that significant weight should be given to the factor of the appellant’s non-cooperation, notwithstanding the lengthy period of his detention.[40]I reject the appellant’s argument that the judge failed to consider the appellant’s argument that the respondent had sufficient information for it to have made an application for travel documents as the Home Office held a copy of the appellant’s expired Ethiopian passport on file. The appellant was under a duty to cooperate and in the light of his repeated failure to do so, and in particular his failure to provide fingerprints, the respondent could not on any basis be criticised for not having made an application on his behalf, even on the assumption that it was open to the respondent to have done so.[41]I likewise reject the appellant’s argument that:
“In any event, even if such failure to co-operate is determinative (which was not accepted), a failure to co-operate between 30 December 2008 and 18 October 2010 did not justify detention after October 2010.”
Apart from the fact that the judge clearly took the view on the evidence that the appellant continued to fail to cooperate throughout 2011 (see paragraph 48 of the judgment), the appellant took no steps to obtain an Ethiopian or Eritrean passport or travel document, or to leave the UK during the period from October 2010 up to his release. On the contrary, as the chronology set out above demonstrates, he continued to challenge the deportation order itself, by renewing his Cart judicial review proceedings. For so long as that challenge continued, the Secretary of State was entitled to take the view that she should not attempt to proceed with his removal. In the circumstances it was inevitable that the appellant’s Cart judicial review proceedings would be stayed pending the resolution by the Supreme Court of the jurisdictional issue as to whether challenges could be made to refusals to grant permission to appeal by means of judicial review. In the light of the appellant’s criminal record, his past failure to comply with reporting restrictions and his past immigration history, the judge was entitled to conclude that throughout 2011-2012 there remained a serious risk of his absconding and re-offending which entitled the Secretary of State to continue to detain him. There was no evidence to suggest that the absconding risks had reduced or that protection of the public from the criminal activity of the appellant was no longer necessary. It was, in my judgment, open to the judge to decide that, throughout the relevant period and particularly after October 2010, the risk of absconding and the protection of the public provided sufficient justification for continued detention.[42]The fact that the Secretary of State apparently required some months between June and October 2011 to consider the effect of the Supreme Court’s decision in Cart is irrelevant. If the appellant and his representatives had required an earlier resolution of his Cart judicial review proceedings, no doubt they could have made application after 22 June 2011 (when the Supreme Court's judgment was delivered) to have his proceedings determined at an earlier stage than the date at which they were actually determined in December 2011. There is no evidence that he made any such application.[43]I also reject Mr O’Callaghan’s submission criticising the judge’s reliance upon the fact that there had been no detrimental effect upon the appellant attributable to his detention. The judge did not express the view that detrimental effect was a requirement for the purposes of establishing unlawful detention. He was entitled to refer to the fact that there was no evidence that the appellant was vulnerable to the adverse effects of detention, because that was one of the relevant factors identified in Lumba. The judge clearly appreciated that all a claimant had to prove in order to establish a claim for false imprisonment was that he had been directly and intentionally imprisoned by the respondent, whereupon the burden shifted to the respondent to show that there was lawful justification for doing so.[44]In my judgment, in the words of the Lord Chief Justice in Fardous at paragraph 54, the decision which the judge reached “was one within that area of judgment that was open to him to reach in his careful and correct application of the Hardial Singh principles to the facts of the case". For all the above reasons I would dismiss this appeal.

Sir Stephen Tomlinson:

[45]I agree.[46]I also agree.

Cited in 6 later judgments