Milnyali, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2411 (Admin)

Case No CO/9269/2006[2007] EWHC 2411 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 4th October 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF MILNYALIClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms N Finch (instructed by Turpin & Miller) appeared for ClaimantMr J P Waite (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SULLIVAN: In this application for judicial review the claimant seeks a declaration that he was unlawfully detained by the defendant following the completion of a custodial sentence for theft on 6th March 2005. He also seeks damages for that unlawful detention.[2]When the claim was filed on 6th November 2006 it simply sought the claimant's immediate release upon the basis that by that time it had become obvious that he could not be deported to Algeria because the Algerian authorities refused to accept that he was an Algerian citizen.[3]On 23rd November 2006 at the hearing of an application for interim relief, a consent order was agreed between the parties, under which the claimant agreed to cooperate with a telephone interview with the Algerian authorities that was to take place in the week ending 24th November 2006, and if after that telephone interview he was not recognised as an Algerian national by the Algerian authorities then he would be granted temporary admission subject to conditions acceptable to the defendant.[4]On 24th November 2006 the claimant was interviewed by telephone by the Algerian authorities who adhered to their previous position and did not accept that he was an Algerian national. On 7th December 2006 the claimant was released and granted temporary admission. The judicial review proceedings remained outstanding and by a consent order dated 12th December 2006 it was agreed that the matter should be adjourned to enable the defendant to consider the claimant's request that the deportation order which was still in force should be revoked, and for the claimant to particularise his claim for damages for unlawful detention and for the defendant to respond to any such claim. The deportation order was revoked on 8th March 2007. Finally, permission was granted on 14th March 2007 for the claimant to apply for judicial review.[5]In her skeleton argument on behalf of the claimant, Ms Finch initially contended that the claimant had been unlawfully detained between 6th March 2005 and 14th March 2005, and then again from 31st August 2005 to 7th December 2006. During the course of her submissions she conceded that the period in issue was realistically between 18th January 2006 (following another refusal by the Algerian authorities to accept that the claimant was an Algerian national) and the 21st November 2006, the date of the consent order when the claimant agreed implicitly that he should remain in detention pending the telephone interview with the Algerian authorities on 24th November 2006.[6]In deciding whether the claimant's detention during that period between 18th January and 21st November 2006 was unlawful, the parties are agreed that the relevant test is that set out in A v Secretary of State for the Home Department [2007] EWCA Civ 804. In paragraph 45 of the judgment of Toulson LJ, with whom Longmore LJ and Keene LJ agreed, said:
"The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
The purpose is bringing about the removal or departure of the person detained.[7]The need to look at all the circumstances involves looking at the history of this matter, which is fairly described as most unfortunate. The claimant arrived in the United Kingdom in April 1995 on a forged French passport. He did not come to the attention of the United Kingdom authorities until about a year later, when he was arrested on suspicion of interfering with a motor vehicle. At that time he said that he was a Moroccan tourist but he later said that he was an Algerian national. He was served with illegal entry papers and he promptly proceeded to claim asylum.[8]In due course, after much shilly-shallying, that claim was withdrawn and in November 1996 the claimant confirmed that he had entered on a forged French ID card and said that he wanted to be returned to Algeria. He gave the authorities a new address and a new set of fingerprints, so another application was made to the Algerian authorities. In due course the Algerian authorities in October 1997 confirmed that the claimant was not an Algerian citizen. The claimant had been released from detention the previous month because by then it had seemed there was no realistic prospect of him being removed to Algeria. The Algerian authorities, however, did hold out some hope from the point of view of the defendant because the letter of 10th October 1997 said in part:
"Hence I can only assume that the information provided is not correct. If you have any fresh and relevant information or evidence susceptible of helping to confirm his identity or citizenship, please forward this to us. And if you have any further queries please do not hesitate to contact us."
[9]Having signed on for a little while the claimant absconded. He did not come to light again until June 2003 when he was arrested for immigration offences. He was granted temporary admission while attempts were made to obtain an emergency travel document from the Algerian authorities. In due course he was sentenced at Oxford Crown Court to 21 months' imprisonment for burglary and theft and recommended for deportation. He was served with a notice of decision to make a deportation order. That was the position when he completed his sentence on 6th March 2005. At the beginning of that month he had appealed against the decision to make the deportation order.[10]Shortly thereafter he said that he was a Libyan. He then in August withdrew his appeal against the decision to make a deportation order and at the end of August admitted that he was not a Libyan and contended that he was, after all, an Algerian. Perhaps unsurprisingly in the light of that, he was interviewed again by the Immigration Service on 28th September 2005 to see if they could obtain information which would enable an emergency travel document to be obtained from the Algerian authorities. The deportation order was signed and served in October 2005.[11]On 18th January 2006 the Algerian Embassy refused to issue an emergency travel document, it would seem on the same basis as before -- that is to say they were not satisfied on the information provided to them that the claimant was an Algerian citizen.[12]On any basis, against that background, it was entirely reasonable for the Immigration Service to go back to the claimant and to say, using my own words, "You contend you are an Algerian, the Algerian authorities contend you are not an Algerian national. If you are not an Algerian, what nationality are you? If you are an Algerian, is there any more information you can give us which would help us to persuade the Algerian authorities?". In effect, that is what was done, and the subsequent history is set out in a witness statement of Mr Beaumont of the Returns Group Documentation Unit.[13]When the claimant was re-interviewed in January 2006 following the Algerian authorities' refusal, he provided bio-data. That bio-data differed in a number of respects from the earlier data that he had provided. Details are set out in the witness statement. Whilst there is an issue about the differences in the spelling of his and his mother's and father's names, that does not overcome the difficulty from the claimant's point of view that there is no doubt that some of the information was different and/or new. For example, on 25th January 2006 the claimant was able to give his mother's age. He gave a more detailed address of the local police station and he said that he had worked as a market trader in Algeria, giving details of the market, whereas before he had said that he had left as a minor. He was also able to give details of an army academy that he had attended, albeit for a very short time. He left because he did not want to do military service. He also gave details of his local hospital in Algeria.[14]Armed with that information, the Immigration Service went back to the Algerian authorities. The application was rejected in May. The Immigration Service tried again and made a further application in September. Again, the bio-data provided in that application following a re-interview which had taken place on 13th September 2006 was different. Setting aside for the moment the different spellings of addresses, the claimant now included details of his place of worship. Somewhat surprisingly, not merely his mother's surname but also her age had changed. He was able to give an approximate age of his father. He was now saying that he had left Algeria as a child. The address of a local police station had changed. Again, I appreciate that an explanation is now provided as to why these changes might have been due to a misunderstanding or mistranslation of what the claimant was saying, but even if that very belatedly produced evidence from interpreters is accepted, it simply does not explain the further changes in the information. It does seem that every time the claimant was interviewed he was able to provide a little bit more information and/or something that appeared to be slightly different from the information that he had provided earlier.[15]That fresh application was refused by the Algerian authorities on 28th September 2006. Undaunted, the Immigration Service submitted another application by fax to the consulate on 17th November 2006 and in response to that, on 21st November, the consulate requested a telephone interview with the claimant and that was scheduled for the week beginning 24th November 2006.[16]Ultimately, the interview did not result in any change in the Algerian authorities' position but, in my judgment, having regard to all of those circumstances, it could not possibly be said that the point had been reached where there was no realistic prospect of the claimant being removed to Algeria up and until the telephone interview with the Algerian authorities. As Mr Beaumont points out, it is not in the least unusual for applications that have been initially refused to have to be resubmitted with further or different information when they may well be accepted. As he said:
"It is possible that several applications will be submitted for one applicant if the information varies from a previous application, as it is often the case that applicants will deliberately give false or misleading information to avoid identification and delay removal. However, RGDU will submit all ETD applications if the information differs from the previous application to ensure Embassies, High Commissions and Consulates have all the available details to help with the verification checks."
[17]It has to be borne in mind that this claimant had a history of dishonesty. He entered this country on a forged travel document. He has at various times claimed to be a Moroccan and a Libyan as well as an Algerian. In the past he refused to cooperate with the authorities when they were attempting to obtain information to supply to the Algerian authorities. Although Ms Finch submits that he was cooperating in 2006, it is plain from the bio-data forms -- even if one sets aside any possible difficulties about misunderstanding the proper spelling, for example, of the claimant's address or his parents' address -- that information was trickling out and each time the claimant was interviewed something new or slightly different appeared to emerge. So it was entirely reasonable for the Immigration Service to think that in those circumstances there was a realistic possibility that at the end of the day the claimant would provide them with enough information which would enable them to satisfy the Algerian authorities.[18]That, of course, is not the end of the matter because all the circumstances have to be looked at, and it is clear in the light of the decision of the Court of Appeal in A that one of those circumstances is the risk of absconding. Although Ms Finch submits that there was no prospect of a voluntary return, which I accept, and this was not an offender who had committed a violent offence where one would be particularly concerned about the risk to the public if the claimant absconded, nevertheless, I accept Mr Waite's submission that here there was an obvious risk of absconding. This was a claimant who had indeed absconded previously, having been put on temporary admission in September 1997. It would appear that effectively he went to ground for getting on for six years until he was arrested for immigration offences in June 2003. Moreover, the defendant was not alone in the view that there was a real risk of absconding. During the period in question (that is to say between January and November 2006) there were no less than four applications for bail to immigration judges. All of those applications were refused in fairly trenchant terms and in every case the Immigration Judge concluded that there was a real risk of absconding. To take but one example, towards the end of the period in question on the 11th October 2006 when refusing bail an Immigration Judge said, amongst other things:
"I consider there is a very high risk of the appellant absconding as he has no ties in the UK, no family and no incentive to stay in one place."
[19]In all these circumstances, it cannot possibly be said that the continued detention of the claimant while the defendant was repeatedly submitting further information to the Algerian authorities in an endeavour to accept the claimant as one of their nationals was in the least unreasonable or unlawful. At all times there was a reasonable prospect that the Algerian authorities would believe the claimant's own assertion that he was an Algerian. It follows that I reject the claim on the merits.[20]For the sake of completeness, I should mention that on behalf of the defendant Mr Waite raised a preliminary issue on timing, namely that the original claim form on its face did not challenge the claimant's past detention. Effectively the claim was being presented on the basis that by November 2006 there was simply no prospect of the claimant being returned to Algeria and therefore at that time continued detention was unlawful. It is a somewhat surprising feature of this case that following the consent order in November 2006 whereby the claimant agreed to the further telephone interview with the Algerian authorities, it is only some months later that it is contended that for a significant period before the date of that interview he had been unlawfully detained. In the circumstances, it is unnecessary for me to consider that preliminary issue raised by Mr Waite because it seems to me that, even if one looks at the case on the merits, the claim of unlawful detention is doomed to fail for the reasons that I have set out above. For these reasons the application for judicial review is refused.[21]MS FINCH: My Lord, the claimant is Legally Aided.

MR JUSTICE SULLIVAN: The usual order.

[23]MR WAITE: I have no application.

MR JUSTICE SULLIVAN: Thank you.