Saleh, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2395 (Admin)

[2009] EWHC 2395 (Admin)Case No CO/6893/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 October 2009
Before
Mr TIMOTHY BRENNAN QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimantOn the application ofClaimantABDESALAM MOHAMED SALEHClaimantTHE SECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Graham Denholm (instructed by TRP Solicitors) for ClaimantMiss Lisa Busch (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 27 August 2009
JudgmentMr Timothy Brennan QC :Overview
[1]In this claim for judicial review the Claimant challenges his past and continuing detention by the Defendant, the Secretary of State, under the powers contained in the Immigration Act 1971, s 5(5) and Schedule 3 para 2(3) which provides:
“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 …”
[2]The Claimant has been in detention continuously since 19 August 2008 and it is his contention that his past and current detention breach the principles governing the legality of such detention, as set out by Woolf J in Re Hardial Singh [1984] 1 WLR 704 and further explained by Dyson LJ in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888.[3]The Secretary of State’s position is that the Claimant’s detention was and remains lawful. It is contended that the Claimant’s past behaviour, in particular his conviction of numerous criminal offences of dishonesty and his manipulation of the system of immigration control over a long period, both explains the length of his detention to date and justifies his continued detention while his current claim for asylum is determined. It is said that it is appropriate to detain the Claimant so as to eliminate the risk that he may abscond, as he runs out of options to delay his removal from the United Kingdom. Reliance is also placed on the risk that the Claimant may commit further criminal offences.[4]As was recorded by the Court of Appeal in R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 (see para [62], Toulson LJ), it is for the court, and not for the Secretary of State, to determine the legal boundaries of administrative detention, apart possibly from incidental questions of fact which the court may recognise that the Secretary of State is better placed to decide than itself.

Prior to the current detention

[5]The Claimant was born on 16 February 1963, a citizen of Sudan. On 6 July 1991 he entered the UK with six months leave to enter as a visitor. On 15 July 1991 he claimed asylum. This claim was refused on 19 April 1993 but on he obtained exceptional leave to remain in the UK until 19 April 1994, in which year he married a British national. His leave to remain was extended to 19 April 1997 and then to until 19 April 2000.[6]On 15 August 1997 the Claimant was convicted of six offences of deception, forgery and theft in connection with state benefits. He was sentenced to 240 hours of community service.[7]On 22 November 1999 he applied for indefinite leave to remain in the UK. There were by then further criminal charges outstanding against him, and the Defendant delayed consideration of the application. The Claimant’s leave to remain in the UK duly came to an end on 19 April 2000.[8]On 14 November 2000 in the Crown Court at Newcastle-upon-Tyne the Claimant pleaded guilty to no fewer than 21 counts of dishonestly obtaining property by deception, and a further count of attempting to do so. Having deliberately given false personal details, he had opened a bank account and drawn cheques which he knew would not be met. On 8 January 2001 he was sentenced to 15 months imprisonment on each count concurrently and the sentencing judge made a recommendation for deportation. Other counts were left on the file.[9]The Claimant applied to the Court of Appeal (Criminal Division) for leave to appeal against sentence. On dismissing the application, the Court, by McCombe J, made remarks in the following terms. “In the learned judge’s view, with which we agree, the counts admitted showed a carefully calculated course of persistent dishonesty and not simply a one-off, stupid mistake. The applicant [the Claimant] had previous convictions for dishonesty. … The judge took into account the fact that the applicant is an intelligent man, who had deliberately chosen a dishonest path. … [T]he learned judge, in our view, quite rightly concluded that offending on this scale with deliberation and forethought behind it, as revealed by these offences, was so serious that only custody could be justified. … The judge concluded that he was a deliberate offender who was not prepared to make any worthwhile contribution to society and was merely using his wife as a prop in times of need such as this. The judge was satisfied that the applicant’s continued presence in the United Kingdom would be of potential detriment and that, if he stayed, he would continue to offend. He therefore made the recommendation [for deportation]. … This was a determined course of dishonesty and deception and was not the first with which the applicant had been involved. The sentence passed was not manifestly excessive and the deportation order made by the judge, only after careful consideration, was fully justified.”[10]The Secretary of State’s power to detain the Claimant under the powers conferred by the Immigration Act 1971 was in existence from the date of sentence. The deportation order against the Claimant was duly signed on 25 June 2001 and he was detained by the Secretary of State from 29 June 2001 on expiry of the custodial term of his sentence. He made another application for leave to remain, which was rejected on 3 September 2001, but he was released on bail on 5 September 2001.[11]On 20 March 2003 the Claimant’s appeal from the rejection on 3 September 2001 of his (second) application for leave to remain came before the Adjudicator (Mr B S Grewal). In the course of a lengthy decision dismissing the appeal, the Adjudicator made the following trenchant observations about the Claimant’s behaviour, motivation and character. “On the totality of the documentary and oral evidence I have concluded that this appellant is an incorrigible liar who has shown deliberate and persistent dishonesty. He claims to have learnt his lesson and he told me more than once that he had learned his lesson and would not repeat his offences. He claims to have been worried that he would lose everything if he were to go astray again. However, having heard the appellant give evidence and having carefully watched his demeanour I did not believe a word of what he said. In my view the motivation for the apparent change in the appellant’s behaviour is due to the threat of deportation and I have no doubt whatsoever in my mind that once the threat is removed he will return to his previous behaviour pattern of dishonesty. He has never had any regard to the welfare of his wife or his child and in my view he is simply putting on a performance because of the threat of removal. He has been unfaithful to his wife and had lied to her. He had created a separation between him and his family by his conduct. I simply do not believe the change in the appellant is genuine and I do not believe that he has learnt any lessons”.[12]Further leave to appeal from this decision was refused and then, on 22 January 2004 Defendant duly refused the Claimant’s original application (that of 22 November 1999) for leave to remain.[13]The Claimant nonetheless remained in the UK without leave.[14]On 1 November 2006 the Claimant was remanded in custody on a charge of kidnapping. He was granted bail by the Crown Court on 13 February 2007 but kept in detention. However, he was released from that detention on 7 March 2007 since, in the light of the pending prosecution, there was no prospect of removal within a reasonable timescale. In due course the prosecution offered no evidence against him on the kidnapping matter.[15]The Claimant kept applying for leave to remain.[16]On 14 November 2007 the Claimant submitted an application for leave to remain in the UK as the spouse of a person present and settled in the UK. This was immediately rejected because he failed to pay a fee. The Claimant submitted another such application on 6 December 2007. On 8 January 2008 he submitted a further application for leave to remain on the basis of long residence, and withdrew it within the week. On 12 February 2008 the Defendant received a statement from the Claimant withdrawing his application for leave to remain as a spouse, and stating that his wife was no longer a party to or supporting that application in any way.[17]The Defendant refused the Claimant’s application for leave to remain in the UK on 14 July 2008, refusing at the same time to revoke the existing deportation order. It was resolved on 15 August 2008 to detain the Claimant, removal directions were issued on 18 August 2008 providing for removal 23 August 2008 and the Claimant was duly detained on 19 August 2008.[18]The Claimant has been in detention since that date, a period of well over a year. It is therefore appropriate to consider what has been going on during that time, and to identify so far as possible why it is that the Claimant’s case has not been disposed of long since, and why he has been kept in detention while it is determined.

The period of current detention

[19]The Claimant took judicial review proceedings on 26 August 2008 having earlier obtained an injunction preventing his removal from the UK.[20]On 5 September 2008 the Defendant wrote to the Claimant inviting him to submit any reasons as to why he should not be removed to Sudan. The Claimant’s representatives replied on 10 September 2008 stating (despite the earlier indication to the contrary) that the Claimant’s previously estranged wife now endorsed his claim to family life in the UK. On the same day they made further human rights representations and sought temporary admission. On 12 September 2008 the Defendant wrote to the Claimant’s representatives, seeking confirmation that they were satisfied that the Claimant’s wife had signed the letter endorsing his claim. The Claimant’s representatives wrote back stating that they no longer acted for the Claimant.[21]On 12 October 2008 the Claimant provided the Defendant with further human rights representations. The Defendant responded to this set of representations, and the representations of 10 September 2008, on 6 November 2008, refusing to revoke the deportation order.[22]On 9 November 2008 the Claimant’s then representatives challenged the decision of 6 November 2008 and the detention. The Defendant’s response of 19 December 2008 was that the Claimant would not be released or bailed for a number of reasons: he was the subject of a deportation order; he had used documentary deception to his advantage in the UK; he was a failed asylum seeker; detention was to effect his removal from the UK; he had previously failed to leave the UK when required to do so; and he had an unacceptable character, conduct or associations. In another letter of the same date, the Defendant addressed paragraph 353 of the Immigration Rules (fresh claim), concluding that the present submissions were not significantly different from ones which the Claimant had made previously.[23]In representations of 20 February 2009, received by the Defendant on 5 March 2009, the Claimant claimed, for the first time since entry to the UK in 1991, to be from Darfur, and relied on this contention in support of a new claim for asylum (it will be remembered that he had advanced a claim for asylum over 17 years before but without mentioning his alleged Darfur origin). On 20 April 2009 the Defendant resolved to treat these further representations as a fresh claim. Accordingly, on 15 May 2009 the Claimant’s outstanding claim for judicial review was withdrawn by consent on the basis that the Defendant agreed to consider various representations from the Claimant of 10 September 2008, 10 October 2008, 9 November 2008 and 24 March 2009 as an application to revoke a deportation order. It was agreed that the Claimant would be afforded an in-country right of appeal in respect of any decision on the Defendant’s part to refuse that application.[24]On 15 June 2009 the Defendant wrote to the Claimant’s solicitors in response to their letters of 21 May 2009, 26 May 2009 and 11 June 2009 in which they had asked that the Claimant be granted bail or temporary release; this was refused. The principal reasons relied on were in summary: the deportation order; the use by the Claimant of “documentary deception”; refusal to return voluntarily, despite being the subject of a deportation order; and the Claimant’s unacceptable character as demonstrated by his criminal convictions.[25]On 17 June 2009 a screening interview was conducted with respect to the Claimant on his new asylum claim. He filed the present claim for judicial review on 2 July 2009.

Reasons given for continued detention

[26]The Defendant has provided the Claimant with regular reviews and statements of the reasons for detaining him.[27]On 15 August 2008 he was told of the decision that he should be detained because his removal from the UK was imminent; and he did not have enough close ties to make it likely that he would stay in one place. In addition, his family ties were not such as to ensure that the Claimant would report for his removal from the UK when required. At this stage, the Claimant had withdrawn his application for leave to remain as a spouse, stating that his wife was no longer a party to or supporting that application.[28]On 19 August 2008 the formal “Notice to Detainee: Reasons for Detention and Bail Rights” gave as reasons for detention that the Claimant was likely to abscond if granted temporary admission or release and that his removal from the UK was imminent; and again indicated the view that the Claimant did not have enough close ties to make it likely that he would stay in one place.[29]On 6 November 2008the Defendant wrote to the Claimant asserting (among other matters) that delay in putting the deportation order into effect (and hence prolongation of the period which the Claimant had spent in detention) was not due to any deliberate action or inaction on the part of the Home Office.[30]On 19 December 2008 the Defendant refused to grant the Claimant temporary release or Chief Immigration Officer’s bail.[31]On 15 June 2009 the Defendant wrote to the Claimant’s solicitors explaining that temporary release would not be granted: the main factors were the Claimant’s reluctance to return voluntarily; the risk of losing contact with the Claimant; the Claimant had sought to frustrate the removal process, seeking an injunction from the Court only at the last minute before his removal; there was a deportation order outstanding; there was a risk of re-offending in order to support himself.[32]While this was going on, the Defendant conducted detention reviews with respect to the Claimant on a broadly monthly basis on 17 October 2008, 14 November 2008, 12 December 2008, 12 January 2009, 11 February 2009, 12 March 2009, 1 April 2009, 11 May 2009, 5 June 2009 and 4 July 2009. The Reviews conducted prior to May 2009 concluded that the Claimant should be kept in detention on the basis, inter alia, that the only barrier to removal was his outstanding claim for judicial review, which had been made at a very late stage; and which, the Defendant anticipated, would be dealt with expeditiously. The officer responsible for the review of 12th January 2009 also stated: “I have assessed this case in accordance with the current criteria and I find Mr Saleh’s recent adjudication for disruptive behaviour contributes further to my overall conclusion that Mr Saleh is not a suitable candidate for release at this critical stage of the pending removal process, even under conditions of rigorous contact management. Given Mr Saleh’s history of documentary deception, including forgery, there is currently reasonable evidence of Mr Saleh’s untrustworthiness and unreliability. In these circumstances, detention is viewed appropriate, justified and proportionate”.[33]It is unnecessary to set out this documentation in further detail. It discloses, putting it at its lowest, serious scepticism about the merits of the Claimant’s case. He was described as having “a strong propensity to deceive”; his judicial review application had been raised at the last minute; there was no documentary support for his belated asylum claim to be from Darfur. The detailed reasons for maintaining the decision to detain the Claimant on each occasion that his case was reviewed were not always the same. The factors on which weight were placed included the following matters, or assessments: deportation was imminent; the Claimant was likely to abscond if released; he had refused voluntary return; there was a risk of further re-offending if released; there had been an adverse disciplinary adjudication against him while detained; he had been convicted on “15 occasions (sic) of 21 offences of dishonesty” (this was inaccurate, he had been convicted on two occasions, albeit of a large number of offences, and on the latter occasion had been sentenced to 15 months imprisonment); that he presented a risk of (unspecified) harm to the public; that although there was a “minimal” risk of harm to the public, he presented a likelihood of absconding and reoffending in order to support himself.[34]By 4 July 2009, after the resolution of the judicial review proceedings the custody review recorded: “Mr Saleh’s asylum application will be considered as a priority as soon as possible but Mr Saleh has currently shown no documentary evidence to support his claim to be from Darfur. Therefore, weighed against the documentary evidence, which shows he is from central Sudan, the latest claim to be from Darfur, appears spurious on initial examination”.[35]The Assistant Director’s comment on this occasion (on review) was: “The current asylum claim, if refused, will attract an in country right of appeal therefore the subject is not removable in the short term. He has previously frustrated removal by lodging late judicial review proceedings and has now claimed to be from the Darfur region of Sudan in contradiction to previous evidence. There is an unacceptably high risk of non-compliance with our efforts to deport Mr Saleh which outweighs the presumption to liberty. As the subject of a deportation order there is little incentive to comply with any restrictions should he be released at this late stage of the deportation process. Recommend that detention is authorised for 28 days to progress asylum claim”.[36]Finally, I mention that monthly Progress Reports to Detainees were also compiled with respect to the Claimant on 19 October 2008, 19 November 2008, 19 December 2008, 19 January 2009, 16 February 2009, 16 March 2009, 2 April 2009, 11 May 2009, 8 June 2009, and 6 July 2009. Each of these Progress Reports stated (inter alia):
“Your case has been reviewed. It has been decided that you will remain in detention because: You are likely to abscond if given temporary admission or release. To effect removal from the UK. You have refused to return voluntarily. There is a risk of further re-offending. This decision has been reached on the basis of the following factors: You have used or attempted to use documentary deception to your advantage and it is considered likely that you will do so again. You have not produced satisfactory evidence of your lawful basis to remain in the United Kingdom. You have refused to return voluntarily. You have previously failed or refused to leave the UK when required to do so. Your unacceptable character, conduct or associations”
. This decision has been reached on the basis of the following factors:

The legal principles

[37]The legal principles are not controversial and are helpfully summarised in the skeleton argument submitted on behalf of the Claimant.[38]The key propositions are itemised in Dyson LJ’s judgment in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at [46]: The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; The deportee may only be detained for a period that is reasonable in all the circumstances; 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; The Secretary of State should act with reasonable diligence and expedition.[39]At [48] Dyson LJ set out a non-exhaustive list of factors potentially bearing upon the assessment of reasonableness:
“…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. ”
[40]Risk of offending and the gravity of any potential offending are highly relevant. Risk of absconding is also likely to be a matter of considerable significance. Where there is no risk of absconding or offending there is no obvious reason for the Defendant to exercise his power of detention. It must be exceptional to regard lengthy administrative detention as lawful where there is no predicated date for removal.

Rival contentions

[41]Against the background of the somewhat complex detail of the history of the Claimant’s case, and these principles, it is submitted on his behalf that while detention may have been lawful during such time as removal could properly be characterised as imminent, there were no factors justifying detention from the point at which it became apparent it was no longer imminent, that is to say from 26 August 2008 when he took judicial review proceedings.[42]It is contended that there is little if any risk of the Claimant absconding. He could have absconded earlier if he was going to do so, but in fact remained (with perhaps one or two exceptions) in touch with the authorities over a period of many years while he was at liberty.[43]It is also contended that there is little if any risk of the Claimant re-offending. There is no evidence that he has offended for a number of years. Even if he did offend, the risk of harm to the public posed by offences of dishonesty may be regarded as less grave than would be the case were there any risk of offences of other kinds.[44]It is said that detention for over 12 months of someone who poses (as it is submitted) little if any risk of absconding or re-offending and in respect of whom the risk to the public arising from any putative re-offending would in any event be low, is unreasonable and unlawful.[45]Further still, detention has now endured for a lengthy period, and there is no obvious date for imminent removal. This is not an exceptional case such that further administrative detention is justified. It is contended that it is now apparent that the Secretary of State will not be able to effect deportation within a reasonable period.[46]In answer to this, the Defendant’s case is shortly expressed. It is said that the length of time over which the Claimant’s detention has endured is largely his own responsibility. He is presently detained because he has made a fresh claim which is being processed: he now relies on the contention that he is from Darfur, a point which could and should have been made at the outset of his sojourn in the UK. He has kept that fact (if the contention is true) concealed for many years, and has brought it up now as he perceives himself as running out of options.[47]Further, it is said, he is a dishonest person who has (as the history shows) manipulated the procedures of immigration control to his own advantage. As the various avenues of application, appeal and judicial review are being closed to him, the possibility that he will, if put at liberty, cease to maintain contact with the Borders Agency, becomes steadily greater.[48]It was also submitted, though not forcefully, that the court should proceed on the basis that the Secretary of State is or may be in a better position than the court to make the judgment as to whether the Claimant ought to remain in detention.

Assessment

[49]I start from the proposition that it is indeed disconcerting to find that a non-violent person subject to immigration control has been in detention, when not serving any sentence of imprisonment, for over 12 months while his status is assessed and his applications are dealt with. Such a period of incarceration requires justification and it is appropriate for the court to scrutinise it anxiously.[50]While I accept that there may be cases where the Secretary of State may be in a better position than the court to assess the appropriateness of continued detention, I do not consider that this is such a case.[51]Taking a step back from the rich detail of the Claimant’s immigration history and looking at his case as a whole, I detect the following relevant features.[52]First, he is a dishonest and intelligent man who is capable of manipulating matters to his advantage. The criminal offences which were dealt with by the Court of Appeal were offences which required planning, and then showed continued occurrences of calculated dishonesty. The assessment of the Claimant by the Adjudicator, Mr Grewal, was highly unfavourable; he referred to the Claimant as having untruthfully presented himself in a particular way solely because of his immigration status. Mr Grewal had the advantage, which I have not had, of seeing and hearing the Claimant give evidence. He did not believe him.[53]Secondly, there is some risk of further offending. I accept that the Claimant has not been convicted of offences recently; I ignore as irrelevant his arrest on suspicion of kidnapping; I accept that the risk of harm to the public from an offender such as the Claimant is likely to be less great than that from (say) a violent offender. Nonetheless, the fact remains that he is a dishonest man who, if released, would have no obvious means of support and a clear temptation to turn to crime to support himself.[54]Thirdly, the Claimant is obviously determined to stay in the UK if he possibly can. While he currently has an outstanding application for asylum, he is not simply a applicant for asylum, as a result of his criminal offending he is already the subject of a deportation order with which he has simply failed to comply. He has made numerous applications of various kinds to achieve his goal of remaining in the UK, sometimes making another application before an earlier one had been disposed of, relying (where it suited him) on the circumstances of his family from whom he appears otherwise to be estranged. He cannot be criticised for using legal procedures to challenge the decisions which are adverse to him but the overall picture which emerges is that the Claimant has used and will use all available avenues in order to delay matters.[55]Fourthly, he did not put all his cards on the table in the first place. His claim to have been last resident in Darfur before he came to the UK could have been raised in 1991. If true, it was a point of potential relevance to an asylum claim, whether in 1991 or in 2008, but there is no satisfactory explanation for his failure to mention it in 1991 or since. It is the processing of this very belated claim which is currently delaying final disposal of his case. I regard the lateness of this claim as relevant to his honesty generally (which seems likely to arise in relation to assessment of the asylum claim) and also to the justification for the length of his detention to date.[56]Fifthly, while there were periods of delay, particularly between August 2008 and November 2008 when the judicial review application might have been progressed more quickly, on an overall view the Secretary of State has acted with reasonable diligence and expedition in the complex circumstances of this Claimant’s case.[57]Accordingly, and in the light of the factors above taken cumulatively, I consider that the circumstances are such as to justify the continued detention of the Claimant while his current asylum claim is determined. I put considerable weight on his character and behaviour and his immigration history. He is, as the Defendant submits, now running out of options. He has made his asylum claim and if that fails, and if he appeals and the appeal fails, he will have nowhere left to turn. The risk that he will abscond, perhaps committing further offences having done so with no means of support, is a real one. In all the circumstances the period of detention to date and the likely period of future detention is reasonable.[58]Accordingly, I refuse his application for judicial review.