A & Ors, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 142 (Admin)

CO/11426,11431,11434 & 11439/2007[2008] EWHC 142 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 21st January 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OFClaimantAClaimantMAClaimantBClaimantMEClaimantv
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)
Mr R Drabble QC and Mr A Goodman (instructed by Fisher Meredith and Leigh Day & Co) appeared for ClaimantsMr P Patel (instructed by the Treasury Solicitor) appeared for Defendant
JUDGMENT
[1]MR JUSTICE MITTING: The claimants seek, by applications for a writ of a habeas corpus or for a mandatory order made in judicial review proceedings to secure their release from immigration detention.[2]The cases have common features but, as always in cases of this kind, it is necessary to examine with some care the particular facts relating to each. Each claimant has been served with notice of an intention to deport. Deportation orders have been made. Appeal rights, if exercised, have been exhausted. In each case neither the claimants nor the Home Office have been able to satisfy the Algerian authorities of the identity, and perhaps nationality, of each of them. The Algerian authorities have undertaken enquiries on the basis of information supplied by the Home Office. In each case they have reported back that they have been unsuccessful in establishing the claimants' identity. I have already given permission for judicial review to each claimant and this is my judgment in the judicial review claim and in the applications for a writ of habeas corpus.[3]Each has been detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 which provides:
"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 . . . he may be detained under the authority of the Secretary of State pending the making of the deportation order." "
Pending" means "until" (R (Khadir) v Home Secretary [2006] 1 AC 207, paragraph 32). The defendant accordingly has jurisdiction to detain.[4]There is no express temporal limit in the statute but, as has been acknowledged at least since R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704, the power to detain is subject to limits: "First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time." (Per Woolf J at page 706, E and F). Those principles have been applied in a variety of factual circumstances. It is now settled law that generally the date from which the lawfulness of detention falls to be considered is the date on which appeal rights were exhausted: see R (on the application of Q) v Secretary of State [2006] EWHC 2690 at paragraph 20.[5]In R (on the application of I) v Secretary of State [2002] EWCA Civ (number missing), Dyson LJ at paragraph 48 said:
"It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
[6]In R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804, it was established that considerable weight should be given to two factors not identified in Dyson LJ's list. At paragraphs 54 and 55 Toulson LJ said:
"(54) I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making. (55) A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
[7]A series of cases in this court beginning with R v Governor of Her Majesty's Prison Rochester ex parte Lehchibi [1997] EWHC Admin 40, Mohamed Dahmani [1998] EWHC Admin 245 and Chen v Secretary of State for the Home Department [2002] EWHC 2797, has established that a refusal on the part of a person the subject of a deportation order to provide necessary information or to cooperate with the machinery of deportation is itself a highly significant factor. There is no dispute between Mr Drabble QC who appears for the claimants and Mr Patel who appears for the Secretary of State as to those principles. The area of difference between them is upon the application of those principles to the facts, to which I now turn.[8]In the case of A, he entered the United Kingdom in either February or March 2002 using a stolen French passport. On 23rd March 2002 he was arrested in a false name for shoplifting. He was granted temporary admission but failed to comply with the terms of temporary admission. He claimed asylum. His claim was refused on non-compliance grounds. On 23rd September 2003 he was convicted of robbery and handling stolen goods, and on 8th December 2003 he was sentenced to 42 months' imprisonment. He was released on licence in April 2005. In July 2005 it is thought that he was recalled to prison for breach of his licence conditions and released again in the following month or in September 2005.[9]On 30th May 2006 he was detained under immigration powers and served with a notice of intention to deport. He appealed to the Asylum and Immigration Tribunal. His appeal was heard on 7th July 2006 and dismissed, with determination and reasons promulgated on 21st July 2006. He applied for reconsideration which was refused on 1st August 2006. His appeal rights expired within a few days of that date. He has been detained ever since. The period of his detention from the expiry of his appeal rights is accordingly over 17 months.[10]On 8th September 2006 he completed a biodata form and supplied four passport sized photographs. The form was returned on the following day. On 15th September 2006 the Immigration Service Documentation Unit ("ISDU") informed him that an application for an emergency travel document could not be processed because passport photographs, fingerprints and the necessary application form required by the Algerian Embassy had not been enclosed with the biodata form. A was asked to complete the Algerian forms in October 2006. His fingerprints had still not been taken by 10th November 2006 and it was noted on an internal file that he was "keen to go". His fingerprints were taken on 17th November. The complete application was sent on the same day to the Algerian Embassy; alternatively, on 20th November.[11]Further documentation was submitted on 15th December. At a bail hearing on 17th January 2007 on behalf of the Home Office it was stated that "all relevant and required documentation" had been submitted to the ISDU on 3rd January, and it was anticipated that the Algerian Embassy would take two months to deal with the application. The Immigration Judge who heard the bail application on 24th January and refused it noted concerns that A had not been removed within a reasonable time. New photographs were requested and provided soon after. On 3rd March 2007 the Algerian Embassy advised the ISDU that their investigations into A's identity had been unsuccessful. For reasons that were unexplained, A was not notified of that lack of success until 21st May 2007. Bail continued to be opposed. Bail summaries alleged that A had failed to cooperate with attempts to obtain the emergency travel document. It is not clear to me why, or on what basis, those assertions were made.[12]On 20th July 2007 A applied for voluntary assisted return. Nevertheless, on 17th October 2007 an Immigration Judge was satisfied that A had not taken a great deal of steps to confirm his identity. It is not clear to me what steps within his power he had failed to take.[13]In an internal note of 7th November 2007 it was stated that:
"We seem to be wholly reliant on the hope that the subject's investigation will provide evidence to prove his identity."
The suggestion was made that he might be served with a requirement to provide information under section 35 of the Asylum and Immigration (Treatment of Claimants et cetera) Act 2004, leading to prosecution if he failed to comply. In the event, no such form was served upon him and he has not been prosecuted. On 26th November 2007 a document which was not served on the claimant was prepared which, for the purposes of section 35, required him to provide:
" . . . any document that will prove your identity and nationality. In particular you are obliged to provide one or more of the following documents or copies of Algerian passport, national identity card, registration card, military card with photograph."
As was, it seems to me, self-evident, A did not have any such document in his possession. It is not known what, if any, further progress has been made.[14]Mr Patel submits that from that history it is possible to infer that A had not cooperated adequately in the provision of information which would permit the Algerian authorities to identify him and so provide him with emergency travel documents. He points out correctly that there is a document in the file in which A made a plainly false suggestion that he had been tortured by the Algerian authorities. It is plainly false because he clearly left Algeria at a time when he was a young teenager; he says 13. There is other evidence that he may have been 15 or 16, but in any event hardly of an age at which it was likely that he might have been tortured, and certainly not the date he claimed he had, in 1998.[15]Accordingly, subject to muddle, there is some evidence that A has not been wholly frank in the material which he has supplied. But that is as high as the case against him, for present purposes, can be put. The reality is that the Algerian authorities decided as long ago as 3rd March 2007 that they could not identify him sufficiently for their purposes and nothing effective has occurred since. I am not satisfied that the fact that nothing effective has occurred since is the fault or responsibility of A. It is simply a fact. It may be attributable to bureaucratic delay. It may be attributable to an over-particular concern for detail on the part of Algerian authorities. It may be that the information provided to them has not permitted them to establish who precisely A is. It may be that there are shortcomings in the handling of his case on behalf of the Secretary of State. There certainly was a long period between the making of the decision by the Algerian authorities and the notification given to A of their decision, and between then and the beginning of an attempt to renew an application for emergency travel documents to the Algerian authorities. The Secretary of State has not used the power which he has under section 35 of the 2004 Act. Furthermore, all that has occurred against the background of a man who has by now been in detention for 17 months since his appeal rights were exhausted.[16]In those circumstances, for continued detention to be lawful two questions have to be capable of being answered. First, by when does the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation? Mr Patel, on instructions, is understandably unable to answer either of those questions, other than by the generality that the Secretary of State expects to be able to deport him within a reasonable time. Mr Patel realises that that begs the question. In my view, against the history that I have recited, there is simply no basis for concluding that A can be expected to be deported within the near future, nor can anybody, let alone the Secretary of State, give an answer to the first of those questions. An impasse has been reached in A's case. It has been reached after the lapse of many months of detention. His detention has now become unlawful.[17]I reach that conclusion notwithstanding that he has committed a serious criminal offence and that there is in his case the risk of absconding. Those are factors that have to be weighed in the balance. Were there grounds for believing that his application for emergency travel documents would soon be resolved favourably, then those factors would have led me to uphold the lawfulness of his detention. But absent any basis for concluding that he can soon be deported, those factors do not outweigh the claim that he has to conditional release. I will turn to the conditions of release at the conclusion of this judgment.[18]B came to the United Kingdom some time in the early or mid-1990s. Two years were put forward, 1991 and 1996. It does not matter for present purposes which. He was arrested on 26th January 1996 and charged with assault and criminal damage, offences of which he was convicted and for which he was sentenced to a short term of imprisonment. He left voluntarily in March 1996 at the expiry of his sentence. He returned to the United Kingdom in either August or September 2005. An Immigration Judge found that he returned on 1st August 2005, not September 2005 as he now claims. I accept the finding of the Immigration Judge. He entered on a stolen French passport. Soon afterwards he met a girlfriend. He was arrested attempting to obtain a National Insurance number to provide to his employer in Kent by means of the stolen French passport which he had used to gain entry. He was charged with using false papers and taken into custody. On 1st March 2006 he was sentenced to 12 months' imprisonment. The custodial element of that term ended on 27th July 2006.[19]In his case he asserts that his Algerian identity card, birth certificate and other personal documents were seized by the police when they searched his girlfriend's home. The police accept that they did seize documents such as those and have since destroyed them. It is simply unknown now whether the documents were genuine, and so would have provided him with the opportunity of demonstrating easily to the Algerian authorities who he was, or were not genuine like the stolen French passport. Whichever it may be, he clearly has been deprived by the actions of the United Kingdom State of the opportunity of providing such documents to them.[20]Notice of an intention to deport him was served on a date which I do not know. He appealed against that decision and his appeal was dismissed by the Asylum and Immigration Tribunal in a determination and reasons promulgated on 5th December 2006. On 3rd January 2007 a Senior Immigration Judge refused his application for reconsideration. He did not renew it to the High Court. His appeal rights were accordingly exhausted on or about 10th January 2007. He has therefore been in immigration detention since that time, so for just over 12 months.[21]In his case an application was made to the Algerian Embassy for emergency travel documents in very good time on 10th March 2006. An Algerian application form, six photographs, a biodata form and his fingerprints were submitted to the Algerian Embassy and acknowledged on 24th March 2006. Mr Drabble complains that the Secretary of State did not press the Algerian authorities for an early response to the application. He submits that that is a relevant factor. In my view it is not unless there is evidence, which there is not, that such activity would have resulted in an early response. In any event, early activity did not affect the date upon which the claimant could have been deported because he could not have been deported until his appeal rights were exhausted on or about 10th January 2007.[22]On the same date, 17th November 2007 the Algerian Embassy notified the Border and Immigration authority that investigations into the identification of B had been unsuccessful. On 18th December 2007 the Secretary of State resubmitted the same information as had already been submitted in March 2006. Nothing further has been -- or so far as I can tell could be -- done to further the application for emergency travel documents.[23]In his case the two questions which I pose, "By when does the Secretary of State expect to deport him and what is the basis for that expectation?" are, as in the case of A, not capable of realistic answer. All that has happened is that information supplied to the Algerian Embassy has been resupplied. There is no reason to think that the answer of the Algerian Embassy would be different from that already given, namely that their investigations to establish B's identity have proved unsuccessful.[24]In his case, Mr Patel relies principally upon the risk that B will abscond. I acknowledge that that risk exists. There is, however, no history in his case of serious criminal activity so that if he does abscond he would not be likely to put the British public at serious risk. What will, however, inevitably occur if he were to abscond is that the unsuccessful process of deporting him will be rendered wholly impossible until and unless he is rearrested. Given that in his case it is not possible to answer the question "By when does the Secretary of State expect to deport him?" and that there is no basis for being able to give an answer in the near future, in my judgment his continued detention is also unlawful.[25]MA came to the United Kingdom in or about May 2004. He entered and worked illegally. On 23rd March 2005 he was arrested on suspicion of immigration offences and required to report monthly. In June 2005 he claimed, either truthfully or not, I do not know, that he had accidentally destroyed his immigration paperwork. On any view that is not sufficient justification for failing to comply as he did. On 10th March 2006 he stole a mobile telephone from a man's pocket and was arrested and charged with theft. He pleaded guilty to that offence and to a second count. He was committed to the Crown Court for sentence, in custody, and was sentenced to 12 months' imprisonment. Having served six months on remand, he was immediately eligible for release in, as far as I can tell, October 2006. He was immediately detained under immigration powers on 3rd October 2006 and has remained in detention ever since.[26]MA has never had an Algerian passport and is not in possession of any documentary evidence of his nationality. He was served with notice of intention to deport on 3rd November 2006. He appealed that decision. His appeal was heard on 25th January 2007 and dismissed by determination and reasons promulgated on 27th January 2007. His appeal rights were exhausted by 20th April 2007. He has accordingly been detained for approximately 11 months since that time.[27]On 14th February 2007 he was interviewed in connection with travel documents. A form was completed giving information about his family in Algeria. The deportation order was signed on 27th March 2007. Only five months later, on 19th July 2007, the Algerian Embassy notified the Border and Immigration authority that the investigations into his identification had been unsuccessful.[28]A feature of this case is that he has given inconsistent answers about his family circumstances in Algeria. In a witness statement prepared for the purpose of his appeal to the Asylum and Immigration Tribunal, undated and unsigned, he said:
"My father, mother, five brothers and one sister are still living in the capital of Algeria, Algiers."
The AIT in its determination and reasons noted that:
"His parents and six siblings remain in Algeria living in Algiers which was the appellant's home. His parents' family are regularly harassed by the authorities who are still looking for the appellant."
That statement was noted in the context of MA's asylum claim. MA gave evidence on oath in Arabic, accompanied by a French interpreter, and adopted the unsigned statement to which I have referred. Even the most unintelligent of persons cannot have been in any doubt about the effect of what he was saying: he had a family in Algeria which was being harassed by the authorities who were still looking for him.[29]In a biodata form, completed three weeks after the hearing before the Asylum and Immigration Tribunal, MA said that he had three brothers who were "all living in Spain". When interviewed on 27th November 2007 on behalf of the Secretary of State, he said that he did have a brother in Algiers. In a statement dated 18th December 2007 he said that he had not had any contact with "family in Algeria for some years now". In a witness statement of 21st January 2008 by Johanna Hickman, a solicitor who had the conduct of MA's case, she said that the claimant's eldest brother is resident in Algeria. She said that, of course, on the basis of MA's instructions and answers at the interview of 27th November 2007.[30]Those facts demonstrate two things. First, beyond argument, MA has not merely been inconsistent in his account of his family in Algeria but has lied about it. He may have lied for different purposes at different times, but on any view the effect of his lies, deliberately told, has been to make the process of securing his deportation much more lengthy and more difficult than otherwise it could have been. Secondly, he has now provided information which, if true, may enable the Algerian authorities to identify him to their satisfaction. If he has a brother living in Algiers then the Algerian authorities may be able to trace him and confirm that he is indeed the brother of MA, thereby leading them to be able to identify MA satisfactorily. It seems that within recent months MA has taken proper and active steps to satisfy the Algerian authorities as to his true identity. He got the assistance of the Red Cross in July or August 2007 to attempt to locate his family. They were unable to do so. He applied for voluntary assisted return in August 2007. He has, as I have stated, identified the brother living in Algiers.[31]Accordingly, on the basis of that information, a new application for emergency travel documents was made to the Algerian embassy on 17th December 2007. Nigel Beaumont, who is a Higher Executive Officer employed by the Border and Immigration Agency, and who made a witness statement for the purposes of another claim on 8th August 2007, states in undisputed evidence that the Home Office expectation is that where an undocumented claimed Algerian citizen makes an application for emergency travel documents, it takes between six and twelve months for his claim to be processed. MA therefore faces a further period of between six and twelve months before the outcome of the renewed application for emergency travel documents is known. That will take him, in the event that the period is at the bottom end of the range, to a total period of detention of about 16 months and, at the top end of the range, of about 22 months. At the bottom end of the range, the period in detention against the background I have identified is, in my view, undoubtedly lawful. At the top end of the range it reaches a duration which may be unlawful. As I have demonstrated, the reason why he will have been in detention for as long as 16 to 22 months is in significant part because of his own lies and lack of cooperation.[32]In answer to the question "By when will the Secretary of State expect to deport him?" an equivocal answer can be given: within six to twelve months of December 2007 if the information provided by him about his brother is true. The basis for that expectation is Mr Beaumont's evidence about the time which the Algerian authorities normally take in a case in which they can be satisfied about the identification of an undocumented Algerian citizen, added to the time that he has already spent in detention. In his case, in answer to the question "Is his detention as of today lawful?" my answer is that it is. He has demonstrated by his past conduct that he cannot be trusted to abide by conditions of temporary admission or release. He has committed a criminal offence of moderate seriousness. There is a very significant risk that he will abscond. He has, by his own actions, brought upon himself a substantial part of the period of detention already passed. There is reason to believe that if he has told the truth now, the Algerian authorities will issue the necessary travel documents to permit him to be deported. Accordingly, for that combination of reasons, in his case I reject the application for a writ of habeas corpus and for a mandatory order.[33]ME's case contains features which appear also in the case of MA but are far less cogent. The Home Office file in his case has only recently been produced so that the detailed analysis that has been possible in the case of the other three claimants may not have been fully performed. He claimed to have entered the United Kingdom in August 2003 using an alias and a forged French identity document. He was arrested on 3rd February 2004 for theft. He claimed asylum and was granted temporary admission until 11th February 2004. He did not attend the screening interview on that date. On 3rd March 2004 his claim for asylum was refused.[34]On 13th July 2006 he was sentenced to two concurrent terms of 12 months' imprisonment for offences of theft and handling stolen goods. The sentencing judge recommended his deportation. On 23rd September 2006 the custodial part of his term expired and he was detained under immigration powers. At some stage before then a notification of the intention to deport him was given. He appealed. On 15th November 2006 the Asylum and Immigration Tribunal dismissed the appeal. His appeal rights were exhausted on 23rd November 2006.[35]On 17th October 2006, meanwhile, he was interviewed by ISDU for the purposes of an emergency travel document application. No documentary evidence was produced. The application was submitted on 25th October 2006. Shortly before then, he learnt that his mother had died and from then on made repeated and apparently genuine requests to the Secretary of State to procure his prompt return to Algeria. Although the making of an appeal against the notice to deport him might suggest otherwise, there is in fact no reason to doubt the genuineness of those requests.[36]On 20th February 2007 the Algerian authorities notified the ISDU that the attempt to establish his identity had been unsuccessful. A further interview was conducted on 6th March 2007. No new information emerged. A telephone interview was arranged on 15th March 2007 with the Algerian Embassy and repeated on 13th April and 26th April 2007. According to the file, the single reservation that the Algerian authorities appeared to have about the information provided by him was that he did not sufficiently identify his place of birth, which he said to be "Blida", a city of Algeria.[37]On 2nd May 2007 a BIA review of ME's file revealed that he had given "Neftah", a part or suburb of Blida, as his place of birth at the screening interview. That information was supplied to the Algerian authorities. It seems that they recorded it on the forms held by them about ME. No other criticism, as far as I can tell, was made in the documents about the information provided by ME. On the face of it, it seems remarkable that a failure to name Neftah as his place of birth as opposed to Blida could cause significant difficulties for the Algerian authorities, or that the identification of Neftah and nothing more would be sufficient to permit them to identify him successfully. Whichever it may be, no further progress has been made. Accordingly, in ME's case he has been detained for 14 months since his appeal rights were exhausted and for 11 months since the Algerian authorities first notified the Secretary of State that the application for emergency travel documents had been unsuccessful.[38]In response to my question "When does the Secretary of State expected to report and what is the basis for that expectation?" no clear answers can be given. Even though, in his case, the identification of his place of birth as Blida not Neftah is the cause of the lengthy delay in dealing with the application for emergency travel documents, it does not on any fair-minded view demonstrate such a want of cooperation or dishonesty in providing information that on that ground the detention of ME can be justified further. In his case there is obviously a risk of absconding and of committing moderately serious criminal offences if he does, but given the length of his detention and the complete uncertainty about when it might be brought to an end by deporting him, in his case, on balance, I am satisfied that his detention has now become unlawful.[39]What should be done about it in the case of the three claimants in respect of whom I have declared detention to be unlawful? Mr Drabble submits that habeas corpus is the appropriate remedy. In my view that submission is not well-founded. This is a case in which there was jurisdiction to detain. Detention has become unlawful because of the events which have occurred. The appropriate remedy is a mandatory order in judicial review proceedings. The order which I propose to make, subject to counsel, is that which I made in Bashir v Secretary of State [2007] EWHC Admin 3017, namely that each of the three claimants I have identified should be admitted to bail on conditions which include a 12-hour curfew, tagging, daily reporting to an immigration office or at a police station and residence at an address to be identified or agreed by the Secretary of State. I impose those stringent conditions because of the risk of absconding which exists in each of the three cases. I direct that until those conditions are in place no claimant should be released. In the event of difficulty in fulfilling those conditions, I give liberty to apply.[40]MR DRABBLE: My Lord, there are further consequential matters from our perspective. We do seek permission to appeal in MA. I will come back to that very briefly in a moment. We assert that he has a right in habeas corpus --[41]MR JUSTICE MITTING: Well, yes, but you had a habeas corpus claim. I have rejected it in his case.[42]MR DRABBLE: I face a double barrier in habeas corpus whether I am right in jurisdiction or not. I will come back to the basis for permission to appeal. We ask for costs in the three cases that we have won from the Home Secretary. We ask for detailed assessments of our publicly funded costs and we ask for an expedited transcript to facilitate the appeal in MA, if your Lordship is willing to order that.[43]MR JUSTICE MITTING: I will certainly ask the shorthand writer to expedite her transcript. I know from previous experience that they are prepared very quickly.[44]MR DRABBLE: I am very grateful. We do apply for permission to appeal in MA, principally on the basis that, with respect, your Lordship's judgment does not attach sufficient weight to the very considerable delay that has occurred since the first application for ETD was rejected by the Algerian authorities some time in July. In the period from July until now, very nearly six months, as stated in your Lordship's judgment, my client was cooperating in seeking to establish the whereabouts of his family, involving the Red Cross and the like. He now faces a situation in which as from today, the application having already gone in in the shadow of the judicial review application, as your Lordship has said in the judgment, there is another six to twelve months to go with six months unaccounted for delay before. In my submission, on that basis, it would have been appropriate to hold the detention unlawful. My Lord, I put it as shortly as that.[45]MR JUSTICE MITTING: Yes. I refuse permission to appeal in the judicial review proceedings in MA's case. It seems to me that it is a question of judgment on the facts. I have no reason to believe that my judgment on the facts is likely to be upset by the Court of Appeal and the case raises no questions outside its the four walls of greater importance. What do you have to say about costs, Mr Patel?[46]MR PATEL: My Lord, I cannot oppose the orders for costs in A, B and ME. As the Secretary of State has succeeded in MA, we ask for the costs in that case.[47]MR JUSTICE MITTING: I suppose there is an off-chance that he might obtain an award of damages and you may want to offset it.[48]MR PATEL: Yes. My Lord, other than that, I think that Mr Drabble's requests seem appropriate.[49]MR JUSTICE MITTING: Very well. I make an order for costs in favour of the three claimants whose claims have succeeded, subject to detailed assessment if not agreed. I take it you want a public funding assessment?[50]MR DRABBLE: Yes, my Lord.[51]MR JUSTICE MITTING: And the costs of the claimant who has not succeeded, what do you have to say about that order for costs?[52]MR DRABBLE: I cannot resist that, my Lord.[53]MR JUSTICE MITTING: No. I order that the unsuccessful claimant pay the defendant's costs, not to be enforced without further order. Any further applications?[54]MR DRABBLE: No, my Lord.

MR JUSTICE MITTING: Thank you both for well presented arguments.

Cited in 11 later judgments

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