HY, R (On the Application Of) v Secretary of State for the Home Department [2010] EWHC 1678 (Admin)

[2010] EWHC 1678 (Admin)

Case No CO/13729/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand London WC2A 2LL

Date Monday, 12 April 2010

B e f o r e:

MR JUSTICE KING

Between

THE QUEEN ON THE APPLICATION OF HYClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

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Miss N Braganza (Instructed By Pierce Glynn) Appeared for Claimant

Miss J Anderson (Instructed By The Treasury Solicitor) Appeared for Defendant

J U D G M E N T (As Approved)

[1]This is a claim for judicial review which challenges the legality of the administrative detention by the defendant of the claimant, pursuant to the defendant’s immigration powers under schedule 3 of the Immigration Act 1971.

[2]Schedule 3 is introduced into the law by virtue of section 5(5) of the Immigration Act 1971, which says, among other things:

"The provisions of schedule 3 to this Act shall have effect with respect to ... the detention or control of persons in connection with deportation"

. Sub paragraph 2 of paragraph 2 of that schedule states:

"Where notice has been given to a person in accordance with regulations ... 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"

And sub paragraph 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 ... "

[3]In this case the claimant was detained on 20 July 2006, and given notice of a decision, made on 14 July 2006, of the defendant to make a deportation order. A deportation order was subsequently signed and served on the claimant on 22 October 2007.

[4]Since 20 July 2006 the claimant has continued in the administrative detention of the defendant. That means that, as of today, some 3 years 8 months plus have passed; 45 months, approximately.

[5]In summary the Secretary of State justifies this detention on the basis that the sole barrier to removal is the failure to obtain an emergency travel document from the Algerian Embassy, who, over the years, have consistently taken the position that the information provided by the claimant as to his identity and nationality does not correspond with any known Algerian. The most recent interview conducted with the claimant at the Embassy which had this result, was on 15 December 2009. The defendant, in the round, says that numerous applications have been made on the claimant's behalf for travel documentation in 2007, 2008 and 2009, but the claimant has never fully cooperated with the process by providing sufficient information or evidence to merit a successful application. It is said that he has persistently failed to cooperate with the continuing efforts to obtain evidence of his identity and to trace his extended family in Algeria and the United Kingdom.

[6]In January 2010 the claimant's case was referred to, within the defendant, the Investigation and Documentation Team (IDT). It is said that his case is now in the hands of a specialist team, that they have an action plan, and it cannot be said that removal is not possible in the circumstances of this case. It is said that there continues to be some prospect of removal of the claimant within a reasonable period from now, given the on-going efforts which continue in the United Kingdom and Algeria and regardless, of the claimant's previous alleged failures to assist. It is said that this specialist team is going to take all possible steps on information provided by the claimant from a number of sources. Although applications in the past have been prejudiced by unreliable information from the claimant, notably the use of an incorrect name, it is now asserted, on behalf of he defendant, that, even without full cooperation from the claimant, it is anticipated it should be possible to garner enough information to found a successful application to the Algerian authorities. However if it is not successful, then this can be put down to the fault, and sole fault, of the claimant in not providing the requisite information.

The applicable legal principles

[7]Before I look at the history in more detail, it is convenient if I rehearse my understanding of the legal principles to be applied when challenges are made to the legality of an administrative detention under schedule 3. The starting point is that, on the face of it, the power to detain is unfettered. On the face of the schedule, it is simply a power to detain pending the making of the deportation order, or pending the person’s removal or departure from the United Kingdom. It is well established however that this power, is not unfettered. A power may exist, but it may not be lawful to exercise it or to continue to exercise it. The starting point is the well known statement of principle by Woolfe J as he then was, in Hardial Singh

[1984] 1 WLR page 704

, 706. He set out a number of principles. The power to detain is given to enable the machinery of deportation to be carried out, hence it can only be used for the purpose of affecting a deportation, and for no other purpose. However, the power is, in any event, implicitly limited to a period which is reasonably necessary for that purpose. It is implicit that the Secretary of State should exercise all reasonable expedition to ensure that steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. 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 in the Act for removing persons, it would be wrong of him to seek to exercise his power of detention.

[8]This exposition of principle was summarised by Dyson LJ in I v SSHD

[2002] EWCA Civ 888

at paragraph 46, by reference to four principles:

"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 affect 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 affect the removal."

[9]Dyson LJ was of the view that principle (ii) and (iii)are conceptually distinct. Number (ii) is that the Secretary of State may not lawfully detain a person pending removal for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released, but there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport him within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to affect the deportation within a reasonable period, the detention becomes unlawful, even if a reasonable period has not yet expired.

[10]An overriding test of legality of detention in circumstances such as the present adopted by Foskett J in FR(Iran) v SSHD

[2009] EWHC Admin 2094

, at paragraph 71, was whether the Secretary of State has proved on the balance of probabilities there is a reasonable prospect of securing the claimant's removal within a reasonable period of time. Miss Anderson, on behalf of the Secretary of State in this case, did not demure from the applicability of this test in the present context.

[11]It is important, before I refer to other authority on how the Hardial Singh principles have been interpreted, to note that there is a difference, in my judgment, between whether the power to detain exists, and whether or not it is lawful in the given circumstances of a case to exercise that power, having regard to the Hardial Singh principles, including whether it is proper to continue to exercise that power. I mention this distinction because a case which has been, understandably, relied upon by the defendant and which was referred to by Burton J when he granted permission but refused bail is that of Khadir, [R(Kadir) vSSHD

[2005] UKHL 39

.] What Burton J stated, on 23rd December 2009, was this:

"I find that the arguments put forward in the acknowledgement of service are powerful, that the detention is not yet unlawful, notwithstanding the passage of 40 months. There is, on the defendant's case, still, within Khadir, some prospect of achieving removal of the defendant pursuant to his deportation order and failed asylum application, but there may come a time when this is not so, and the court will need to look at the facts of his case at the full hearing in some detail. In the light of my having this view of the case, on the evidence as it is at present, and by virtue of the claimant's 12 previous failed bail applications, it is not, in my judgment, appropriate to grant bail pending such a hearing."

[12]The principle that there has to be some prospect of achieving removal seems to me to go to whether the power to detain or continue to detain, exists, but nothing in Khadir, in my judgment, in any way dilutes the Hardial Singh principle that detention, in principle, can only be justifiable for a reasonable period of time.

[13]In Khadir At paragraph 32 and 33, Lord Brown, in the two paragraphs relied upon, understandably, by the Secretary of State, makes this clear:

"32. The true position, in my judgment, is this. 'pending' in paragraph 16 means no more than 'until'."

[14]I interpose that Lord Brown was dealing with paragraph 16 of schedule 3, but nothing turns on that and everyone agrees that the statement of principle is equally applicable to the present powers, so I resume:

"The word is being used as a preposition not as an adjective. Paragraph 16 does not say that the removal must be pending, still less that it must be impending. So long as the Secretary of State remains intent upon removing the person, and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly, it may become unreasonable actually to detain the person pending a long delayed removal (ie throughout the whole period until removal is finally achievable) but that does not mean that the power has elapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21. 33. To my mind, the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot) nothing about its existence. True it is that, in Tan Te Lam [1997] AC 97, the privy counsel concluded that the power itself had ceased to exist, but that was because there was simply no possibility of the Vietnamese government accepting the applicant's repatriation. It was effectively conceded that removal in that case was no longer achievable. Once that prospect had gone, detention could no longer be said to be pending removal. I acknowledge that, in the first passage of his judgment set out in paragraph 24 above, Lord Browne-Wilkinson, having correctly posed the question whether detention was 'pending removal', then used the expression 'if removal is not pending'. That, however, can only be a slip. He was clearly following Hardial Singh and no such error appears in Woolfe J's approach."

[15]The reason I stress this distinction for present purposes is that on the evidence before me I accept that it cannot be said that removal in this case is no longer achievable at some point in time. However this merely means that the power to detain in principle exists, but it remains subject to the Hardial Singh line of authority. The issue is not so much whether it is no longer achievable, but whether or not it is achievable within a reasonable period of time, having regard to all the facts and circumstances of the case. As at this date, one of those circumstances has to be the length of detention to date; some 3 years 8 months plus.

[16]I find the approach of Dyson LJ, as he then was, in I, to the determination of what is a reasonable period of time, helpful, although I accept that the other judgments in the case did not fully embrace his exposition of principle.

[17]Dyson LJ said this, at paragraph 46:

"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 diligent 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."

Factors relied upon by the Secretary of State

[18]Two particular factors relied upon by the Secretary of State in this case to justify the continuing reasonableness of the period of detention are the risk of the claimant absconding if released, and the risk of the commission of further offences upon release. In addition reliance is placed upon the failure of the claimant fully to co- operate with the process necessary to enable an emergency travel document to be obtained.

[19]As regards the relevance of these factors to the determination of the reasonabless of any period of detention, assistance is to be found in the subsequent judgments of the Court of Appeal in A v SSHD (2007) EWCA 804.

[20]At paragraph 45, Toulson LJ said this:

"A pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable period of time for attempting to bring about his removal or departure. 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 of the case, including the risk of absconding and the risk of danger to the public if he were at liberty."

[21]At paragraph 54 he returns to the relevance both of a risk of absconding and of a refusal to accept voluntary repatriation. I am prepared to accept that the comments made upon the significance of this latter factor can be applied with equal force to the factor of a failure to co-operate in the process necessary to facilitate a return. Paragraph 54 is as follows: "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, these 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.

[22]And again at paragraph 55, Toulson LJ helpfully explains the relevance of a risk of offending by reference to the likelihood of it occurring and the potential gravity of the consequences:

“If the reason why his presence would not be to the public good is because of 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.”

[23]I observe that at no point is it said in these expositions of principle that the risk of absconding or the refusal to co-operate is always going to be determinative of the legality of the detention. At highest it is said that these are very important factors “likely, often” to be decisive.

[24]And as regards the risk of offending if released, it is noteworthy that the court is enjoined always to consider the strength of its relevance by reference to nature of the offences the claimant is likely to commit and the likelihood of the risk materialising. The more serious the type of offence the greater will be its relevance. This is of particular note in the present case when one considers the type of offence which the claimant had shown himself to have a propensity to commit before being taken into detention and which gave rise to the decision to make a deportation order against him, namely theft.

[25]An authority which has been strongly relied upon by the defendant to support a proposition that non-cooperation in the removal process can in effect be a trump card in the present type of claim and that in effect time does not begin to run against the defendant as regards the reasonableness of the period of detention if it can be shown that the claimant’s own non-cooperation is the cause of any delay in removal is that of WL v SSHD

[2010] EWCA Civ 111

. That case raised the issue of the legality of a presumption adopted by the Secretary of State in favour of detention pending deportation. This is not a question relevant to the present claim. However certain passages in the judgment of the court delivered by Stanley- Burnton LJ are relied upon for present purposes.

[26]Reliance is placed first upon the following observations of the court in paragraph 63: “63. There is, similarly, no rule of our domestic law that precludes the application of a presumption in favour of detention pending deportation, subject of course to the limitations in Hardial Singh, none of which involves consideration of the risk of re-offending or absconding. Such risks are relevant to the reasonableness of the period during which it is lawful to detain an FNP, that is to say, to the continuation of detention (see A

[2007] EWCA Civ 854

, paragraphs 54 and 55). However, the absence of risk does not, of itself, render detention unlawful."

[27]However I note that no adverse comment is made in this paragraph upon those passages in A which I have already cited which make clear that at highest the factors of non cooperation and risk of re-offending and/or absconding are often likely to be decisive factors but no more.

[28]Then reliance is placed upon the court’s observations at paragraphs 102 to 105 of WL. Paragraph 102 is as follows:

"In our judgment, the fact that an FNP (a Foreign National Prisoner) is refusing to return voluntarily, or is refusing to cooperate in his return, for example by refusing to apply for an emergency travel document, as initially did WL, is relevant to the assessment of the legality of his continuing detention (see A). So is the fact that the period of detention has been increased, and his deportation postponed by his pursuit of appeals and judicial review proceedings seeking to challenge his deportation order or his application for asylum or leave to remain, particularly if his applications and appeals are obviously un-meritorious. In our judgment, as a matter of principle, an FNP cannot complain of prolongation of a detention if it is caused by his own conduct."

[29]I however do not read this paragraph or any of the succeeding paragraphs as putting any further qualification on the principles set out in Hardial Singh as further explained in I and A. I do not accept that if it can be shown that non-cooperation in the removal process by refusing for example properly to engage with the necessary application for a travel document is the sole cause of the failure to remove a person, the Secretary of State can lawfully continue to detain him indefinitely. This however is the logical extension of the propositions now being put forward on his behalf. As already indicated, I fully accept that non –cooperation in this sense may often be the decisive factor in determining the reasonableness of the period of detention and that such factor will justify a longer period as being reasonable than might otherwise be the case but there must in my judgment come a time when this can no longer be the case. Non-cooperation is still only one of the factors to which the court must have regard in determining this issue. As against this must be always be set the length of the detention to date which in this case is well over 3 years, and whether it can be predicted when removal will take place and if so how far into the future this is likely to be.

[30]Further support for the principle that the failure to co-operate and the risk of re-offending and/or absconding should not be regarded as trump cards which will always be decisive is to be found in the judgments of Keene LJ in A and of Dyson LJ in M v SSHD

[2008] EWCA Civ 307

[31]In A at paragraph 79, Keene LJ said this:

"I am not persuaded by Mr Griffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of the trump card. On this, I see the force of what was said by Dyson LJ in I at paragraph 52, namely the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released."

[32]In that particular case Keene LJ did accept the legality of what was a lengthy detention by reference to the two particular factors of a very high risk of absconding and a high risk of sexual re-offending combined with the refusal to make use of an available voluntary return. See his judgment at paragraph 82. However for present purposes I observe the express recognition in that paragraph “that it must be exceptional to regard lengthy detention as unlawful when there is some prospect of removal but no clearly predicted date for it.“

[33]In M Dyson LJ at paragraph 37 although ultimately concluding “with some hesitation” that the detention in that case (a period of 15 and a half months with no immediate prospect that deportation would take place) continued to be lawful because the risks of absconding and re-offending were “so great” and that those factors meant “a longer period in detention can be justified as being reasonable than would otherwise be the case”, equally observed that “the decision as to what is reasonable in all the circumstances calls for a difficult exercise of judgment as to which opinions may legitimately differ” and that“ however grave the risk of absconding and re-offending there must come a time when it can no longer be said that the detention is reasonable.“

[34]The reference to a difficult exercise of judgment upon which opinions may legitimately differ is a convenient trigger for this court also to record that although the court must have regard to the specialist experience of the defendant’s officers on immigration issues and similar experience of tribunals dealing with questions of bail, ultimately it is for the court to determine the legal boundaries of administrative detention. See again Toulson LJ in A at paragraph 62.

[35]I am also mindful that decisions at first instance to which I have been referred by the Claimant (Wang [2009]EWHC 1578; FR(Iran) [2009 EWHC 2094) on what is or is not a reasonable period of detention are very much decisions on their particular facts. FR (Iran) for example was a case in which on one view of its facts, the power to detain had disappeared as a matter of principle for the reasons given in Lord Brown’s judgment in Khadir because it could no longer be said to be “pending removal” since there was no longer any realistic prospect of removal at all. In FR it seems there was no prospect that the Iranians would change their policy concerning the documentary evidence necessary to confirm identity and the claimant was steadfastly refusing to co-operate to produce it and there was no prospect that he would ever change.

[36]What is of more assistance to this court are the statements of principle which these two cases contain. I have already referred to the test applied by Foskett J. in FR(Iran) for the purposes of determining the legality of the continuing detention in that case ,namely whether the Secretary of State has proved on the balance of probabilities that there was a reasonable prospect of securing the claimant’s removal within a reasonable time. In Wang at paragraph 25, Mitting J. referred to a detention of some 30 months as being a very long time “right at the outer limit of he period of detention which can be justified on Hardial Singh principles“, “except in the case of someone who has in the past committed very serious offences and who may go on to commit further such offences or who poses a risk to national security.”

[37]Applying the same approach as that of Mitting J., the period of detention in this case being some 45 months, must be well at the outer limit of any period which can be justified on Hardial Singh principles and given this is not a case of someone who prior to coming into detention had committed very serious offences or who poses a risk to national security, there would absent a predicted date for removal in the very near future have to be in my judgment some exceptional features applicable to this case if such justification is to be found. As I have indicated the Secretary of State relies for these purposes upon the non- co-operation of the Claimant in the process for obtaining an emergency travel document, necessary to be undertaken if he is to be removed and upon the additional factors of the risk of his absconding and the risk of his re-offending if released. There is reliance upon the claimant’s behaviour while in detention to justify an assessment that the claimant if released would pose a risk to the public of serious harm.

[38]As will be seen the conclusion I have come to is that I do not consider the facts underlying this case as being sufficiently exceptional to justify on Hardial Singh principles detention beyond today’s date. I am about to turn to these facts but I should say at once that it is the evidence of events since December 2009, the date of the Claimant’s last interview at the Algerian Embassy, and the assessment I have made in the light of that evidence that there is still no predicted date for removal which remains wholly uncertain that has ultimately determined this conclusion. As against this assessment and the very long period of detention to date, the factors relied upon by the Secretary of State cannot given my assessment of their respective strengths justify the continuing detention on Hardial Singh principles. As to non- cooperation, although as will be seen there is compelling evidence that this claimant has not fully co-operated with the process of applications for a travel document in the past, it is questionable whether it can be said that any delay at the moment is solely attributable to such non cooperation . The claimant has now provided information to the Algerian authorities. The Algerian authorities say this is insufficient. On one view it could be said that the Claimant is continuing to fail to give the vital pieces of information necessary to identify himself as an Algerian to the satisfaction of the Algerian authorities. However as Mr Southey QC said on the Claimant’s behalf, one does not know the extent to which the present delay is as a result of the inadequacy of the investigations of the Algerians themselves or of their own documentation and records. In any event however, for the reasons I have already given I do not regard non-cooperation of this kind can always continue to justify continuing detention no matter how long. As to risk of absconding and risk of re-offending, as will be seen although I accept there is a high risk of absconding and a risk of re-offending, I do not consider the evidence relied upon by the Secretary of State justifies a conclusion that there is as a result a risk of harm to the public of such potential gravity which cannot be met by appropriate conditions to his release, that the continuation of what is already an extremely lengthy detention can now be regarded as reasonable.

The facts

[39]As I have indicated this is a claimant in respect of whom the defendant made a decision to deport on 14 July 2006.

[40]He is a person who claims to be an Algerian national, who claims to have arrived in the United Kingdom in 2000 or 2003. He did not claim asylum on arrival; he first submitted an asylum claim only after being arrested for theft in March 2004, and then claimed asylum in a false identity, namely Ismael Sapri. His asylum claim was refused in May 2004. He appealed, but he failed to attend the appeal hearing and the appeal was dismissed on 19 August 2004, the adjudicator finding his claims not being credible, and his appeal rights were exhausted on 8 September 2004. He acquired a number of convictions, primarily for theft in the United Kingdom between 2004 and 2006. On 24 March 2004 he was arrested for theft, and convicted at Southwark Crown Court and sentenced to 8 months' imprisonment; on20 August 2004 he was arrested for theft, and convicted at a West London Magistrates' Court and sentenced to 16 weeks in a Young Offenders Institution; on 5 April 2005 he was convicted of failing to surrender to custody at the appointed time and fined £500, serving one day in custody in lieu of payment; on 18 May 2005 he was convicted of theft from a person at Middlesex Guildhall Crown Court and sentenced to 6 months in a Young Offenders Institution; and on 18 May 2006 he was convicted of two Counts of attempted theft and sentenced to 12 months' imprisonment, and recommended by the court for deportation.

[41]It was as a result of this that the defendant made the decision to make the deportation order on 14 July 2006. The Claimant did seek to appeal the decision but that appeal was dismissed on 2nd October 2007. He did not seek a reconsideration of the determination within the time limits. A deportation order was signed and served upon the Claimant on 22nd October 2007. However an out of time reconsideration was ordered on 14 November 2007 with the consent of the defendant, there having been previous problems with service of notice of the hearing.

[42]Ultimately on 3rd June 2008 the appeal against deportation was dismissed. The AIT found him to be an incredible person, pointing out that "there was a wide divergence in his two accounts of the killing of his family members" and there was "a substantial inconsistency in his differing accounts of having arrived in the United Kingdom in 2000, or alternatively in 2003" (see paragraph 79 of that decision). That tribunal also found that he suffered from a personality disorder and dependency syndrome, but did not suffer from PTSD. There is material, also, that he has become dependant on prescription drugs, and on occasion has been found to have hoarded drugs while in detention. Appeal rights were exhausted on 8 August 2008.

bail applications

[43]There has been a history of applications for bail since the claimant was taken into detention on 20th July 2006. Each has failed. There have been some 13 determinations rejecting an application for bail. There have been any number of reasons given but they have a similar identification of factors, namely a history of absconding, no surety, and a failure to co- operate with documentation process. In refusing bail in September 2009 the adjudicator said he disbelieved the claimant’s oral evidence that he had co-operated with the ETD (Emergency Travel Documentation) procedures and gave weight to the fact that the Claimant had applied under the Facilitated Returns Scheme but then changed his mind. The Adjudicator found that the claimant’s lengthy detention was simply the result of his own conduct. The assessment was made that the claimant had every incentive to abscond and was likely to do so, having been the subject of a deportation order for offences of theft and dishonesty and given he only applied for asylum after arrest.

The FRS

[44]As regards the history of applications to take up the FRS (the Facilitated Return Scheme) which finished in July 2009, this is fairly summarised at paragraph 14 of Miss Anderson’s skeleton argument:

"The claimant is aware of the possibility of an assisted return to his home country with up to £3,000 available for resettlement. He declined to take up FRS on 13 December 2007. The claimant again declined to take up FRS on 30 May 2008, stating he did not wish to go back to Algeria. On 4 August 2008 he applied for FRS, his appeal rights being exhausted on 8 August 2008. He was interviewed by an immigration officer on 16 January 2009 where he stated he did wish to return to Algeria, and an application for a travel document was submitted to the Algerian Embassy on 9 February 2009. The claimant was interviewed for further evidence by an immigration officer on 17 February 2009 where he claimed he left Algerian for France when he was 15, and that his father was a policeman and their house was burnt down. On 10th July 2009 the claimant was withdrawn from FRS in the light of the refusal of the Algerian Embassy to document him on the information provided to date."

Applications for an ETD

[45]As regards the applications for an ETD (Emergency Travel Document) upon which so much reliance is placed by the defendant to justify the continuing detention, they are detailed in a number of sources. There is the chronology headed “Full Immigration History and Chronology” attached to the Secretary of State’s response to the bail application, dated 15 December 2009. There is also that which is contained in the numerous case record sheets. There is a dispute between the parties which this court is in no position to resolve, as to whether at all times when it is so asserted in the record sheets, the claimant did in fact refuse to co-operate whether in relation to being interviewed or being photographed. However for present purposes I do not regard such dispute as of any significance. As already indicated, the evidence is compelling that the claimant has not properly co-operated in the past and certainly not until 2009 not least because he was not making applications in his present name. Mr Southey did not dissent from this proposition. It is the history from the beginning of 2009 onwards which has more significance for the present claim. I accordingly set out some of the features of the history prior to 2009 before turning to the later history in more detail.

Pre 2009

[46]I pick up the history in February 2007. On 22nd February 2007 an EDT application was prepared for submission to the Embassy. It was forwarded to the RGDU of the defendant in March 2007. The name given was Ismael Sabri and in June 2007 the application was unsuccessful owing to a lack of evidence. On 3 July it is recorded that the claimant refused to have his fingerprints taken or to fill in a bio-data form, stating he no longer wished to return to Algeria. On 10 August 2007 he was interviewed and completed a bio-data form under another of his aliases but he refused to be photographed, although on 25 August 2007 he was saying that he had used his true identity in the last bio-data form and it was not his fault he was not accepted and he was not going to fill out any other bio-data form. In October 2007 the claimant was interviewed and completed another application to the Algerians to support an ETD application. They were sent internally by the defendant to the RGDU. They seem to have got lost because they were resubmitted on 30 October, but again on 9 November 2007 the Algerian Embassy again refused the application for lack of evidence.

[47]On January 2008 the claimant is now recorded as saying that he wanted to return to Algeria so a telephone interview was arranged with the Embassy for 13th February 2008. There is a dispute as to the accuracy of the record which states that the clamant declined to attend this interview, saying he did not wish to return. However whatever be the true position, a further interview was arranged in March 2008. The record sheet states that the Algerians did not believe him to be an Algerian but that the claimant disputed their findings. The entry says this:

"They spoke for 20 minutes. From their information, the DZA authorities do not have any trace of the subject and do not believe he is a DZA national. The subject repeatedly said he was and gave family and city details. DZA suggested that he write a letter to the DZA authorities as this might help. The subject was concerned he had been detained for 22 months, and had completed 6 or 7 bio-data forms and spoken to the DZA authorities by telephone. He was upset if they say he was not from there but what could he do, and he said that he had some close family ties, a best friend and a cousin who was also a surety, they could give him a place to stay, an address was given in Boreham Wood."

[48]In November 2008 the record sheets return to the question of what was required to enable another application to be made, with the compiler of the entry saying that precise places of birth and full addresses would be useful and if the claimant had any relatives in Algeria or the UK they might be able to provide evidence of his nationality or perhaps they could contact the Algerians themselves. Reference is made to the fact that the previous applications had not been in the name of the claimant and there is a query raised as to the name which the claimant had been given on birth. 2009 onwards

[49]The history prior to 2009 is as I have indicated one of the claimant not fully engaging with the ETD application process. But on 16 January 2009 the records show the claimant was interviewed by an immigration officer. He stated that he wanted to return to Algeria. He completed an ETD application, photographs were taken and he signed a disclaimer. This is in contrast to earlier occasions when he refused to have photographs taken.

[50]In February 2009 the records show that the ETD had been submitted to the Algerian Embassy. On the 17th February 2009 the claimant was interviewed by an immigration officer for further evidence of his nationality. He claimed he had left Algeria for France when he was 15. He claimed his father was a policeman so his home had been burnt down. A telephone interview was then conducted with the Embassy but the Embassy said they were 90 per cent sure that the claimant was not an Algerian national. They said he should contact other Algerian nationals he knew.

[51]On 3 April 2009 the Embassy is recorded as saying that they would send the fresh bio-data form and ETD application to the authorities in Algeria for verification. The name given for the application in April was not HY, the name of the claimant, but YH, that is to say with the first and surname of the claimant being reversed.

[52]Subsequently the defendant though the RGDU chased the Embassy to see what was happening to the application. There were a number of chasing contacts in May, May again, June, July but ultimately on 22nd August 2009 the Embassy again refused to issue travel documents.

[53]On 22nd September 2009 the claimant provided details of a Mr Boulaleche, who was stated to be able to provide details of the claimant's family in Algeria and to act as surety. On 29 September 2009 the defendant sent a recorded delivery letter to Mr Boulaleche, and he did eventually provide a statement. There is a conflict between what Mr Boulaleche says in that statement, namely that he had not met the claimant in Algeria, compared with what the claimant was saying, namely that he had known him all his life. However, I put no particular significance on that. This may well, in the light of further evidence, have been a result of misunderstanding by the claimant's solicitors.

[54]On 23 October 2009 there was a language analysis was undertaken but this was inconclusive. I interpose in the chronology that an interpreter who listened to this language analysis interview in February 2010 suggested that the claimant “sounded like he might be from Eastern Algeria and not Algiers at all”

The interview of December 2009

[55]These proceedings were issued on 17th of November 2009. At that date a further interview with the Embassy arranged for December 2009 had yet to take place. However that interview did take place on 15th December. The result of that interview was that the information provided by the claimant did not according to the Algerians “correspond with any known Algerian national and as such no document could be issued.” The entry in the case record sheet states:

"The interview lasted approximately 12 minutes. The subject [that is the claimant] remained calm and polite throughout and appeared to be answering all questions asked of him. At the end of the interview I spoke to Mr Abidi at the Algerian Consulate, he stated Mr Y had given the same information as he had provided before and that this information had been checked and investigated in Algeria."

[56]The note continues - "Mr Y was very angry and frustrated. At the outcome of the interview he wanted to know what would happen next."

Events since the December interview

[57]I concentrate for present purposes on what has been happening since that interview. Whatever might have been said by the Secretary of State as to the prospects of removal prior to that interview, it is clear to me, now that the court has been brought up to date as to what is now being undertaken with the aim of finally achieving a successful application for an ETD, that those prospects are wholly uncertain.

[58]The records show that on the 24th December 2009 communication was received by the defendant from the Algerian Consulate stating that if any further supporting evidence was obtained then it should be submitted but their position remained that that the information now provided by the defendant did not correspond with an Algerian national.

[59]On 4 January 2010 the case was referred to the IDT to arrange an interview with the claimant, the IDT being the specialist team within the defendant’s department to which I referred at the outset of this judgment, but they advised that further evidence of identity should first be sought. What then happened was that the defendant checked the claimant’s files going back to when he first claimed asylum and it was discovered that in that claim he stated he had an uncle in the United Kingdom with whom he was living. The name given was that of a Yousef Y, the same surname as that of the claimant. A further search in February 2010 on the Central Reference System showed that the person Yousef Y sponsored a visa application for his father, Sahdi Y who lived in Algeria with his wife and children. It was believed therefore that Sahdi Y might be the claimant’s grandfather. In these circumstances a letter was sent by the defendant’s officers to the uncle requesting contact details for anyone in Algeria who could verify Sahdi Y’s identity and clarify what the claimant’s name was and his last address in Algeria. This letter was delivered and signed for but as of now no reply has been received. A version of the letter was also sent to the proposed surety, Mr Boulaleche, but this was returned undelivered.

[60]On 24 February bio-data details including details of Mr Y, the claimant’s possible grandfather in Algeria, was submitted to the Country Targeting Unit of the defendant for inclusion in a family tracing project. The aim of this project is to refer the biological details and any evidence supplied by the subject to an NGO (Non-Government Organisation) in Algeria via the Migration Delivery Officer (MDO). The aim of the MDO is to try and trace the subject’s family and any evidence in order to verify that the subject is Algerian.

[61]In a further twist in the history the claimant has now been interviewed on the 11th of March 2010 by a member of the IDT who attended with his case worker. The Claimant now says he has no living relatives and when asked about the information he had provided in the past when he first claimed asylum, said that he had made up the information because he was scared and suffering from mental health problems. It appears that the claimant had also been seen by his case worker in February 2010 and told him that he did not have any family in the UK, that if he had had an uncle in the UK he would not have had to sleep on the streets and that although he had had an uncle Yousef Y in Algeria, he had been killed while working for the Algerian army.

[62]As at the date of the first hearing of this claim, 26th of March 2010, the defendant was able to say no more than as at that date the Country Targeting Unit(CTU) had confirmed that the case had been referred to Algeria for family tracing but the CTU were unable to give a timetable for how long this would take to complete, it being a “pilot scheme”. In the round however it was being said on behalf of the Secretary of State that due diligence was being shown in pursuing on going enquiries within the United Kingdom as regards Yousef Y in addition to those a foot in Algeria through the CTU.

[63]The matter was then brought further up to date at the hearing last week Thursday 8th April. I then had placed before me a witness statement on behalf of the defendant from Maria Gridley, a case worker with the United Kingdom Border Agency Criminal casework Directorate.

[64]Her statement deals with three areas. First she deals with the history of that which the defendant regards as the failure of the claimant properly to co-operate with the removal process. At paragraph 6 she speaks of the claimant having completed a total of 4 Bio-data forms, used at least five different alias names and 2 different dates of birth and of the claimant having been deliberate in his attempts to frustrate removal by the provision of false or inaccurate information and by the failure to provide the information to establish his identity and nationality to the satisfaction of the Algerian authorities for the purpose of issuing ETD. She sets out the history in detail in many subparagraphs from a to ddd. This history is one which I have already attempted to summarise above.

[65]Secondly she deals with the matters relied upon in support of the contention that not only is there a high risk of absconding in this case and a “significant” risk of re-offending but that there is “a risk” of “harm” to the public “when he is no longer under supervision” (paragraph 22). This is a matter to which I shall return.

[66]Thirdly however she brings the court up to date on the plan and timetable for the future as regards the removal of the Claimant. She refers to this plan which has been drawn up by the IDT who has assumed “full responsibility for the claimant’s case” as a “plan of action which outlines clear and robust avenues of investigation with the aim of identifying the claimant’s true identity and nationality and to facilitate his prompt removal from the United Kingdom in accordance with the recommendation of the court and the asylum deportation order made against him.”

[67]The detail of the plan is set out as follows (statement para.24):

"As noted above, the IDT plan includes the following steps: 1) Conduct an interview with the claimant to introduce the officials with responsibility for his case and to question him in detail on inaccuracies in his previous documentation attempts; 2) Conduct detailed checks with other authorities into his movements before his arrival in the United Kingdom; 3) Use fingerprint checks to lease widely with groups such as Interpol to determine whether they can match the identification of the claimant overseas; 4) Interrogate UK databases, CID and CRS, for information linked to the addresses given by the claimant, such as [and an address is given in Highbury Hill] his home address in 2004; 5) Obtain a detailed copy of the RGDU file to ascertain exactly what has been submitted to the Algerian authorities to date; 6) Interrogate the UK databases, CID and CRS, for information linked to the surety address given by the claimant, an address in Oxford; 7) Interrogate the UK databases for information linked to the addresses given by C in NW2 in London; 8) Interrogate databases for information linked to Abdil Hamid at an address in Cleethorpes in North Lincolnshire; 9) Obtain wet prints of the subject and conduct urine analysis Eurodac checks 10) Through Interpol conduct specific criminal history checks in France and Spain, countries in which the claimant has stayed and has been present; 11) Collate all information given regarding names and addresses in Algeria, and follow up information submitted to the FCO for checks to be conducted in Algeria; 12) Get all documents written in Arabic translated; 13) Senior investigator to liaise with FCO to ascertain the likely conclusion date of their checks and press the case."

It is then said that these actions are already under way and will be “actively pursued to achieve results at the earliest date.”

Conclusions

[68]I have no doubt that the defendant has throughout acted in good faith. However, although it might be said against the defendant that the present steps now being undertaken could have been initiated at an earlier date, the feature of this evidence which in my judgment goes to undermine the continuing lawfulness at least as from today, is that the timescale within which removal is now likely to be achieved is wholly uncertain. There is nothing in the evidence to inform as to how long the various identified steps will take. Although it was suggested in oral submission that I could take the view that it might be a month or two, there is no evidence to this effect. There is at the moment in effect a two pronged investigation underway: that within and without the United Kingdom being conducted through the ITU, and that being undertaken by the Country Targeting Unit as part of the family tracing project using the NGO in Algeria. But the timescale for all this is wholly uncertain, and assuming any of these investigations bear fruit there still has to be a fresh application for an ETD to the Algerian Embassy.

[69]It would be pure speculation on the part of this court to say when a successful outcome of these investigations and any subsequent ETD application might be achieved, if at all. This then is a case in which it cannot be said there is no prospect of removal but in which not only is there is no clearly predicted date for it, but that date is matter of total uncertainty. the claimant to date had only been in detention for a modest period of time then this uncertainty might not be of any consequence in the application of the Hardial Singh principles but where as here the detention is now some 45 months, then unless there are truly exceptional circumstances (see again Keane LJ in A, Dyson LJ in M, and Mitting J. in Wang in the passages cited above). I do not consider that the claimant’s continuing detention can be lawful. Absent such exceptional circumstances, the defendant will not have established whatever may have been the position before today, that there is still a reasonable prospect of securing the claimant’s removal within a reasonable time. If

[70]In my judgment as of today at least such exceptional circumstances to justify the continuing detention of the claimant notwithstanding the very lengthy detention to date have not been shown to exist.

[71]I take the factors relied upon by the Secretary of State in turn.

[72]As to the claimant’s non-cooperation in the removal process, I have already indicated my view that although there is compelling evidence that this claimant has not fully co-operated with the process of applications for a travel document in the past, it is questionable whether it can be said that any delay at the moment is solely attributable to such non cooperation. But I also repeat that in any event however, for the reasons I have already given I do not regard non-cooperation of this kind can always continue to justify continuing detention no matter how long.

[73]As to the risk of absconding, I accept of course that the defendant is entitled to ask that the court take this into account but I am also mindful of the principle expressed by Langstaff J. in Ahmed

[2010] EWHC 625

, Admin para.65 that:

“The essential matter is to ask whether continued detention can be justified if there are available conditions of release which will provide a proportionate measure of security against a risk of absconding, which is the central risk in this case otherwise preventing release, where it might be justified if those conditions were not to be imposed.”

Although I accept there may well be a high risk of absconding in this case for the reasons given in the various detention reviews, given the absence of any verified ties in the United Kingdom, I do consider there are available conditions of release which will provide a proportionate measure of security against that risk. I will detail those conditions in due course.

[74]Equally as regards the risk of re-offending, given the length of the detention to date, the key assessment the court has to make is not so much the level of risk that the claimant will re-offend, although this is of course relevant, but the potential gravity of the consequences to the public if such re-offending were to re-occur. Absent any evidence of a risk to national security, for a detention of the present length to continue to be lawful on the grounds of the risk of re-offending, there has in my judgment to be evidence of a high risk of public harm through the commission of serious offences if the claimant were to be released. This however in my judgment is not this case.

[75]In the most recent detention review produced to me last week dated 30 March 2010, under “recommendation” this assessment appeared:

“Mr Y was convicted of theft which resulted in him being recommended for deportation … although Mr Y’s crime was not violent, it is considered he may turn to theft to support himself if released.”

[76]The senior officer in confirming the recommendation (which was that he claimant was not suitable for release) is recorded as saying the following:

“Mr Y’s offences are at the lower end of the spectrum and while they do not suggest a high risk of public harm, they do by their nature indicate a risk of re-offending. Mr Y has been identified by the agency’s detention service one of the most disruptive and difficult detainees. He was believed to be involved in the use of illegal drugs and the concealment of a weapon. It s also recorded that he assaulted a Detainee Custody Officer. This is a clear indication as a result that he would present a high risk of public harm. Mr Y has been detained for 46 months and in this time has steadfastly declined to provide sufficient evidence of nationality and identity to provide a successful application in ETD. He has no verified ties in the UK and no reason to remain in contact if released. I have considered the presumption of liberty and the length of detention but on balance both are outweighed by the high risk of public harm and risk of absconding.”

[77]It can thus be seen that the view has been taken within the defendant’s department at a senior officer level that the claimant does represent a high risk of public harm if he were to be released because of his alleged behaviour while in detention. This is an issue upon which prior to the very recent statement of Miss Gridley there was no evidence before the court. As already indicated one of the purposes of Miss Gridley’s statement has been to cure this omission.

[78]Before I turn to the evidence of Miss Gridley on this question, I should record that the recommendation of March of this year has not always been the view of all the officers within the defendant’s department, although of course such views can never be determinative of the conclusions to be made by this court any more than those of the more senior within the department. Thus in the detention record for 14th December 2009,under the heading “likelihood of removal within a reasonable time” there is reference to the forthcoming interview with the Algerian Embassy and to the fact that it was not possible to give an estimated time frame as to when the claimant’s removal could be enforced. Then the following recommendation appears:

“In the past, Mr Y has refused to cooperate with the re-documentation process. However it would appear he has now started to comply with the interviews. Mr Y has been placed on R40 several times for fighting, however staff at Harmsworth have stated that they believe this to be due to frustration at being detained for such a long time with no prospect of removal. For the reasons given above, it is considered that the presumption favouring release is not outweighed in this case as there does not appear to be any prospect of removal.”

[79]The Director in December 2009 declined this recommendation however saying the claimant was a “prolific offender”, that he had been “non compliant with the ETD process” and his lengthy detention was “a direct result of his behaviour.” The Director continued in this vein:

“Although he is now showing signs of compliance, the Algerian authorities could take time to issue travel documents. The evidence suggests there is a high risk of harm to the public and a high likelihood that he will abscond and re-offend …… these additional factors outweigh the presumption for release.”

The evidence of Miss Gridley

[80]Miss Gridley at paragraph 22 asserts that the claimant poses “an exceptional risk to himself and others” based on his “conduct on detention.” She says that he claimant is considered to pose a “significant” risk of re-offending and is likely to “resume” his criminal conduct on release. It is further said that it is considered that if released the claimant will pose a “high risk” of absconding and “given his unstable history whilst in detention and his criminal history” there is “a risk” of harm to the public when the claimant is no longer under supervision.

[81]In so far as the assessment of the claimant posing a “high risk” of harm to the public (as per the detention reviews ) is based upon his recorded criminal conduct prior to his going into detention(as set out by Miss Gridley at paragraphs 9 to 15 of her statement), this in my judgment is not supported by such record. The claimant’s record is that of offences for theft albeit I accept there are convictions recorded as “Theft from Person” and one apparently for common assault for which a conditional discharge was made in the Magistrates Court. If the Claimant is to be properly described as a “prolific offender” it can only be as a thief.

[82]I turn then to the evidence of the claimant’s behaviour whilst in detention which the detention reviews to which I have referred use to justify the assessment of risk of harm to the public as being “high” (Miss Gridley uses the expression “a risk” in this context). This is set out in Miss Gridley’s statement at paragraph 17:

"The claimant's recorded adjudications range in severity from disruptive behaviour to physically attacking members of the Detention Centre staff. The reports regarding the claimant's behaviour whilst in detention are extensive, so only the most severe instances are listed below: (a) 21 March 2007, the claimant was transferred to HMP Pentonville due to his disruptive behaviour at Colnebrooke IRC. However, the claimant threatened to kill himself if he was not moved out of prison and was transferred to Harmsworth IRC on 16 August 2007; (b) On 20 October 2007, the claimant was identified as 'a possible ring-leader due to intelligence received'. This intelligence later revealed there were threats 'regarding the safety and security of the centre, as well as discussions regarding hostages, damage to the fabric of the centre, and also the possible receipt of parcels containing flammable liquid or petrol'; (c) On 2 September 2008, the claimant was noted as attempting to assault a doctor and using threatening behaviour; (d) On 7 November 2008, the claimant was noted as assaulting a member of staff and making threats towards an officer; (e) On 22 November 2008, the claimant's record showed 'detainee was caught drinking hooch during escort to R40. Became violent and produced a razor blade as a weapon. He then made several attempts to assault escorting staff'. (f) On 30 December 2008, the claimant's records note 'the detainee is currently on a detox program for substance abuse'; (g) On 6 February 2009, the claimant was noted as fighting with other detainees; (h) On 14 March 2009, the claimant was noted as fighting with other detainees; (i) On 30 June 2009, the claimant was noted as fighting with other detainees; (j) On 19 July 2009, the claimant was moved due to threats from other residents; (k) On 10 September 2009, the claimant was noted as making threats towards staff; (l) On 8 October 2009, blades were found concealed in the claimant's belongings. This was following intelligence from another detainee who claimed the claimant had asked him to hide blades for him."

[83]I should record that although the defendant has at the request of the claimant produced material records to justify the entries a (b) through to (g) and those at (i) (j) and (k), none has been produced to support the incident at (l) referable to 8th of October 2009.

[84]I find the entry at (l) somewhat ambiguous but whatever be the position, in my judgment this particular entry is a far too an uncertain basis upon which to found a high risk of harm to the public based on “concealment of a weapon.”

[85]Moreover that which is relied upon overall for 2009 does not in my judgment justify a finding of “a high risk of harm to the public” if the claimant were released. For the most part the records for 2009 refere only to fighting with other detainees and Mr Southey properly drew my attention to the belief of the staff at the detention centre (recorded in the detention review of December 2009 set out above) that they believed this fighting was due to “frustration at being detained for such a long time with no prospect of removal.” It is also noteworthy that there has been no recent attempt by the defendant to transfer the claimant to detention in prison.

[86]Taking all matters in the round I do not consider on the material before me that there is such a risk of re-offending and such a high risk of harm to the public if the claimant were to be released that the claimant’s continued detention can be justified notwithstanding the length of detention to date and the uncertainty of when removal may be achieved in the future. Ultimately as said by Dyson LJ it must be a matter of judgment for this court whether a reasonable period of detention has now expired and there has to come a time when however grave the risks as to absconding and as to re-offending it can no longer be said that the detention is reasonable. But in this case the risks on re-offending cannot in any event in my judgment be put in the highest category of gravity. This is not a case where there is evidence to justify a finding of a significant risk of serious sexual or serious violent offending. And as to the risk of absconding, although high, I do consider there are available conditions of release which will provide a proportionate measure of security against that risk.

[87]The overriding considerations which have led me to decide that the claimant must be released now albeit subject to conditions, are the length of the detention to date, 3 years 8 months plus, and the absence on the material now before me of any reasonable prospect of removal within any reasonable time frame. As I have already said, although I accept there is a high risk of absconding and a risk of re-offending, I do not consider there is as a result a risk of harm to the public of such potential gravity which cannot be met by appropriate conditions to release, that the continuation of what is already an extremely detention can now be regarded as reasonable.

[88]In my judgment therefore any continued detention of the claimant would not be lawful. I have thought long and hard as to whether I should rule that the prior detention has been unlawful. My concluded view is that it would be wrong of me so to rule in view of the history to which I have already referred of the claimant’s non-co-operation in the removal process prior to 2009, being a history of amongst other matters of the use of different names, the refusal to be photographed and so forth. Although as I have made clear in my judgment non-cooperation cannot always be a decisive factor so as always to justify a continuing detention no matter how long, I do consider that such non co-operation may allow as reasonable a substantially longer period of detention than might otherwise be the case. The reality in this case is that the claimant did not begin to co-operate until 2009 and there is evidence of the reversal of first name and surname even in 2009. Moreover as I have also made clear, it has been the evidence of what has been happening since the Embassy interview of December 2009 and which has led me to conclude that there is no predicted date for removal which remains wholly uncertain, which has ultimately been determinative of this claim as regards the future. The same considerations do not apply to the past period of detention. Once the claimant began to co-operate, a reasonable period of further time had to be allowed the defendant to investigate whether removal within a reasonable time frame was achievable.

[89]I accordingly make an order and declaration that subject to proper conditions being attached to the order for release, the continued detention of the claimant be unlawful. Those conditions are those which I understand have already been agreed between the parties were the court to determine that the clamant should be released subject to conditions. They are set out in the draft which has now been placed before me, in the following terms: “The claimant be released no later than 48 hours after service of the order on the following conditions:(i) Live and sleep each night at Barry House, 261 Barry Road, London, SE22 0JT;

(ii) to report once a week to an Immigration Service Electric House, Mulsberry Road, Croydon, CR02AG;

(iii) the claimant shall remain in the residence between the hours of 11pm and 8am;

(iv) shall cooperate with the conditions of electric monitoring in respect of the defendant;

(v) the defendant be notified of any application of variation of address on bail." (i) Live and sleep each night at Barry House, 261 Barry Road, London, SE22 0JT; (ii) to report once a week to an Immigration Service Electric House, Mulsberry Road, Croydon, CR02AG; (iii) the claimant shall remain in the residence between the hours of 11pm and 8am; (iv) shall cooperate with the conditions of electric monitoring in respect of the defendant; (v) the defendant be notified of any application of variation of address on bail."

[90]In order that the proper arrangements may be made I will order that the claimant should be released, subject to the conditions, no later than 48 hours from today. I turn to consider costs.

[91]MISS BRAGANZA: Thank you. As to costs, my Lord, I obviously was not counsel with conduct of this case, so my first submission would be we seek our costs, and as to the second hearing we seek our costs on an indemnity basis. In respect of that I ask that this be dealt with by way of written submissions.

MR JUSTICE KING: What should be dealt with by written submissions?

[93]MISS BRAGANZA: The application for costs and costs on an indemnity basis, they be dealt with by way of written submissions within 14 days. If you are not with me on that then I am in a position to make submissions at this stage.

[94]MISS ANDERSON: My Lord, the court has ever been resistant against the incurring of more costs simply on the subject of costs, and in my submission it would be totally disproportionate and contrary to the overriding objectives.

[95]MR JUSTICE KING: I agree with you. Unless there is some very compelling reason why counsel today cannot deal with it, we should deal with it today. I understand you are new counsel.

[96]MISS BRAGANZA: Yes. I am in a position to deal with it today. In those circumstances, my Lord, as I have said my application is for costs, and in addition to that for the costs in respect of the second day of the hearing to be on an indemnity basis. In support of that application I have a chronology of the correspondence leading up to the hearing on 26 March; copies of the correspondence that were sent and an authority, so if I could pass that up first of all please. So, my Lord, in terms of the procedural history, an order was made on 1 February that the claimant's skeleton was to be filed and served on 12th February, that is set out in the chronology that you have at the beginning of that bundle, and the defendant was to file a skeleton and serve it by 19th February. The hearing was then listed for 26th February. The claimant's skeleton was duly filed on 10th February, on 19th February, the deadline for the defendant's skeleton, none was filed or served, as a result of which several letters were sent by the claimant's solicitors, in total six, which you have attached, my Lord, to your chronology. My Lord, you will see that on 22nd February, three days later, my instructing solicitors wrote asking for the skeleton, a holding response was provided on 23rd February simply setting out -- this is at the second page of the bundle:

"I regret the skeleton argument is not yet finalised, I will forward it to you as soon as it is"

With no further reasoning as to why there was a delay. A letter was then sent to the court and to my solicitors on 4th March 2010 referring to the skeleton being due by order of the court on 19th February, and apologising that this had not been done and saying that, pending obtaining instructions, this would be filed. Thereafter, a further chasing letter was sent by my instructing solicitors on 5 March, requesting an explanation and also a timescale for the defendant's skeleton argument. Then a further letter is sent on 10th March:

"Please find enclosed a copy of the trial bundle and we note we have still not received a copy of the defendant's skeleton argument."

Thereafter, my Lord, another letter is sent by my instructing solicitors on 19th March, setting out, again:

"We have still not received the defendant's skeleton argument, even though this was due to be filed and served on 19th February; it is now 19th March. You have not replied to our letters enclosing a copy of the trial bundle."

A further chasing letter is then sent on 24th March, this is fifth letter making enquiries as to the skeleton argument. The final paragraph of that letter sets out:

"We have still not received the defendant's skeleton argument, despite the fact the trial is now less than 48 hours away. We understood you were waiting to hear back from your clients on Monday, we therefore assume a skeleton argument has been finalised."

Following on from that, evidence was sent attached to an email of 24th March. Again, no skeleton argument. On 24th March further documents are sent in this email and it is said that counsel is finalising the skeleton argument. On 25 March, again, a letter from my instructing solicitors asking that the skeleton be forwarded and setting out -- this is at the very back page of the correspondence bundle -- setting out:

"We have written to you on no less than five occasions since then requesting the skeleton be provided and you have either failed to respond or sent holding responses. This is extremely prejudicial to our client (inaudible). Our client remains in detention. You have provided no explanation for the delay."

Thereafter, my Lord, on the actual date of the hearing, 26th March, prior to that, the evening before, at 7 o clock that evening, the skeleton and unapproved skeleton was forwarded from the defendants. On the date of the hearing, at 20 past 10 that morning, the claimant was presented with a new bundle of documents requiring instructions to be taken on that. Thereafter, my Lord, as a result of the way in which the defendants conducted themselves in the service of this additional documentation, the hearing took an excessive period of time which could have been avoided. There was an obvious need for this evidence from the outset and no reason why it could not have been disclosed earlier. Also, I am instructed that the effect of the submissions, more than 50 per cent of the time spent on the defendant's submissions was as a result of this late disclosure of the evidence, primarily clarifying the position. That then led to the adjournment and even after that date, my Lord, on 1st April, this further statement, which was of obvious significance and consequence and featured heavily within your Lordship's judgment, the statement of Maria Gridley was then served, and this was done on 1st April with further documents in support. So, on that basis, my Lord, I make the application. In terms of the CPR, 44.4 sets out --

MR JUSTICE KING: Has anybody got a white book? The White Book I have is 2006.

[98]MISS ANDERSON: I would give you a page number, my Lord, but mine is quite a bit more up to date.

MR JUSTICE KING: Just give me the CPR.

[100]MISS ANDERSON: 44.4. Mine appears somewhere around 1230.

MR JUSTICE KING: Is there a heading?

[102]MISS BRAGANZA: The Court's discretion --

MR JUSTICE KING: But is there a paragraph in the White Book?

[104]MISS ANDERSON: My Lord, 44.4 is the heading dealing with indemnity costs. You will see at 44.4(1) deals with the first sub paragraph --

[105]MR JUSTICE KING: Yes, costs on an indemnity basis. Yes.

[106]MISS ANDERSON: Yes, but then there is a rule 44.4(3) later on, which is costs on an indemnity basis in the notes, my Lord.

[107]MISS BRAGANZA: And prior to that, my Lord, there is 44.3 as to the court's discretion, and in particular 44.3(4):

"In deciding what order, if any, to make about costs, the court must have regard to all the circumstances including (a) the conduct of all the parties"

And then (5):

"The conduct of the parties includes conduct before as well as during the proceedings, and in particular the extent to which the parties followed the practice directions"

And (5)(c):

"The manner in which a party has pursued or defended his case or particular allegation in issue."

MR JUSTICE KING: This is my fault entirely, this is 44.3?

[109]MISS BRAGANZA: 44.3, I have read from 44.3 in paragraphs (4) and (5).

MR JUSTICE KING: It was the first part, what was the first principle you read?

[111]MISS BRAGANZA: (4), in deciding what order, if any, to make about costs.

MR JUSTICE KING: The conduct of the party, yes.

[113]MISS BRAGANZA: And then (5)(a):

"The conduct of the party includes conduct before as well as during the proceedings"

MR JUSTICE KING: Yes.

[115]MISS BRAGANZA: And then (c), my Lord:

"The manner in which a party has pursued or defended his case."

MR JUSTICE KING: Yes.

[117]MISS BRAGANZA: I rely on that. In addition to that, my Lord has an extract from Fordham 18.6.4.

MR JUSTICE KING: Yes.

[119]MISS BRAGANZA: Which sets out at the beginning, CPR 44.4, "Inexcusable deliberate wall of silence", at the end of that middle paragraph, the case of Montpellier (inaudible) Association, the City of Westminster is referred to:

"Indemnity costs of second day of hearing caused by need to deal with defendant's default on the rules"

And that is, my Lord, the authority that you have attached to that bundle, and in particular I rely on page 15 of 19 of that decision which sets out, in the third paragraph on that page:

"The broad impression I have, and the basis upon which I propose to proceed is that, but for the City's misconduct in the litigation, there would not have been a hearing on the second day. I shall therefore direct that, notwithstanding the costs generally to be assessed on the standard basis, the costs incurred on the second day of the hearing are to be assessed on the indemnity basis."

MR JUSTICE KING: Yes.

[121]MISS BRAGANZA: That, my Lord, is the basis of my application.

[122]MR JUSTICE KING: I understand. Thank you. So your application is you want the costs, of course, of the litigation, but specifically you want indemnity costs in relation to which?

[123]MISS BRAGANZA: The second day of the hearing, which was Thursday 8 April.

MR JUSTICE KING: I may have given the wrong date in my judgment.

[125]MISS BRAGANZA: No, you did not.

[126]MR JUSTICE KING: Certainly the Thursday anyway. Yes, Miss Anderson?

[127]MISS ANDERSON: My Lord, firstly, I do not resist any application for costs on the standard basis, and, in my submission, that would be the appropriate order in the circumstances of this case. It would mean that the defendant does bear the cost of any extra time, in full, that has been taken, but, in my submission, the reality of the case is that the time was needed anyway. These are difficult cases where one would expect the defendant to be taking up most of the time justifying the situation that had come about. It was the case that the defendant took very seriously, and it was being considered at a very high level right up to the end, and this litigation was not defended lightly, but at the end of the day the view was taken that those concerned with the claimant's detention could not, hand on heart, justify releasing him on the basis of their views. Of course, it is accepted that the court is in a different position and can take a view overall, but as my Lord has already been kind enough to indicate, it is not a question of bad faith on the part of the defendant. If we come to the rules for indemnity costs, you will see that indemnity costs are, in the main, awarded to mark serious disapproval by the court with the conduct, or should I say misconduct, of a party at that litigation.

[128]MR JUSTICE KING: I think the principle is one in Excelsior, which is referred to in the White Book exposition which I have, which made clear that misconduct is not necessarily the key at all. It can be obviously, but does not have to be.

[129]MISS ANDERSON: It does not have to.

[130]MR JUSTICE KING: There just has to be circumstances where the facts and/or conduct of the parties are such to take the situation away from the norm.

[131]MISS ANDERSON: That is certainly right, my Lord, but by taking away from the norm, bearing in mind that litigation is one where is always one party that loses and always a certain amount --132. MR JUSTICE KING: Just help me on this, why was it, hand on heart, why was it that the skeleton argument and the supporting material was not delivered, either to the other side or to the court, until the very morning of the

133. MISS ANDERSON: My Lord, as I say, the difficulty with these cases, they are perhaps unusual in that it is not a JR of a decision that has been made in the past and then one examines the decision and says was that right or wrong and looks at the way the decision making process had come along. These are almost rolling JRs, as it were, and so have a different sort of nature. Often you will see, my Lord, they even have different procedure, by the way that there is a permission hearing rolled up with a substantive hearing. So, they are unusual cases. The defendant had a duty, and fulfilled that duty in my submission, to consider, right up to the last minute, whether or not this particular claimant should be released. While that consideration was being undertaken it was not possible to finalise the position to put before the court. You will see the court did have the benefit, although I do accept late in the day, of up to date material, as it were. So, in my submission, to some extent it is a product of the fact of the particular peculiar nature of the proceedings, and also, in this case it is accepted that the matter was only considered at the very top of the tree on the Monday of the week of the hearing, and that is when the final decision to maintain detention was made at a very high level meeting. Once that was communicated and the basis for it was sought and put forward, I am afraid there simply was not, practically speaking, time to get the material there before the hearing. It is a matter of great regret and I hope it is not going to be the case in every case, because, as my Lord has indicated, this is a detention that is rather unusual in its length in any event, so this case is perhaps unusual in many respects. So, my Lord, that is my explanation. I would very quickly comment on the case that has been put before you.

MR JUSTICE KING: Yes.

[135]MISS ANDERSON: You will see that I have not had a chance to read it in great detail but, even as far as paragraph 15, you will see -- perhaps just pick up the paragraph my learned friend referred to at the end there, you will see it is the misconduct of the City which was said to -- on page 15 of 19, it was the second full paragraph down, "the broad impression I have", and you will see, "but for the City's misconduct in litigation", you will see it is misconduct in that case. Then if we turn to paragraph 15, my Lord, one does not need to go perhaps much further than:

"The City's conduct is utterly lamentable. Its breaches of the rules are inexcusable. It would be tedious to catalogue each of its faults."

So, my Lord, that is a situation when litigation had been perpetually conducted, as it were, in a manner which was seriously in breach of the rules.

[136]MR JUSTICE KING: Why was the skeleton not, in the form it could have been in, served on 19 February, or alternatively, why was there not an application to the court for an extension of time?

[137]MISS ANDERSON: My Lord, it is very difficult for me, without instructions, as to what I can indicate and what I cannot indicate. Perhaps it would be subject to legal privilege the reasons behind this. But what I can say is that the case, whether to defend the case at all, was something that was the subject of legal advice and was the subject of submissions which were being put forward and the matter of serious consideration. It simply takes time, unfortunately, for that to be done. As you will see, even with the detention review, the recommendations go up a structure, as it were. This went past that level of structure, and really all the way to the top. Without instructions as to what could be said it was not possible to put anything in, my Lord. Perhaps in hindsight one could put the law in, but questions as to how useful that could be without the defendant's present position is something which obviously, at hearing, my Lord quite rightly pressed me on what is the defendant's present position, as it were, and that, my Lord, is the missing piece of the jigsaw, without which a coherent stance could not really go in. I did actually consider putting in a skeleton as to the law and matters of that nature, but the decision was made that it would not be that helpful to court, and it was hoped that something could be got in sooner than it was. My Lord might recall that, under the old rules, the respondent only ever put a skeleton in two days before the hearing.

MR JUSTICE KING: Well, it would have been helpful in this case two days before the hearing.

[139]MISS ANDERSON: Yes, my Lord. I do not seek to excuse the behaviour but what I say is that it does not fall in the class of conduct which this court usually marks such serious disapproval with as to ask a public body to pay indemnity costs. We are paying the full costs of the hearing on both sides in this case and, in my submission, that is something in itself which obviously is a matter of significance for the defendant and must be justified elsewhere. In my submission one would have to quantity the extra costs that were incurred as a result of the defendant's conduct, in my submission one might, when one actually gets down to analyse it, you might find that the causal connection is not there, that in fact, as was indicated, the court was not actually able to list the case and put documents before the judge as early as would have been hoped, that in fact as matters turned out the actual causal nexus is not there. But, in any event, my Lord, this is not intended to punish normal litigation, as it were, it is where somebody has really (inaudible) without any justification at all. As I say, much of it really stems from the nature of the case is an unusual type of case.

MR JUSTICE KING: Thank you.

[141]MISS BRAGANZA: My Lord, in answer to that, the first point I make is this is not normal litigation for the defendant to present its skeleton on the day or the night before an unproved version, and then to serve documents on the morning. It is clearly, in my submission, unreasonable conduct on the part of the defendant. The extent to which, if any, explanation is now being provided to you is something that could have been given in answer to the claimants and was not at any stage, it was simply said that the skeleton will be served. There is no reference within the documentation; I will be corrected if I am wrong I am sure, as to the further service of documentation which counsel was provided with on the morning. Also, there was a further witness statement which was provided, and my understanding was that the documentation, there was no reason for that documentation not to have been either provided earlier in the morning, or in the alternative, at least reference to have been made that this documentation would be relied upon at some stage. As I have set out before, the effect of that was to prolong the hearing, which may well have been, in fact, in my submission, not have been carried over to that second day had the defendant applied for an extension, explained its position, or conducted that part of the proceedings in a diligent and prompt fashion. So, on that basis, I maintain my application for indemnity costs.

[142]MR JUSTICE KING: Thank you. The claimant, having succeeded, undoubtedly will have his costs of the claim against the defendant. The issue is whether I should go further and order indemnity costs in relation to the hearing on 8th April, which was an additional day to that which had been allowed for on 26th March 2010. Relied on heavily by the claimant is that the order of the court was that, by 19th February 2010, the defendant should serve the skeleton argument. There had been other orders as to the service of evidence. In the event, the defendant's skeleton argument, together with supporting material which, as at 26th March 2010, attempted to bring the court up to date as to what had been happening since the unsuccessful interview with the Algerian Embassy on 15 December, was not served and produced in completed form, as far as the claimant was concerned, until the day of the hearing, 26th March, although it had been served I understand the day before in unapproved fashion. As far as the court was concerned it was only produced to the court as the hearing commenced.

[143]There is a history of the claimant's solicitors writing to the defendant's solicitors, the Treasury Solicitors, requesting the skeleton argument and seeking explanations for the delay and timescale, and getting no proper response. Undoubtedly, that is conduct which would normally result, whatever the outcome of the case, upon the defendant being liable for the costs thrown away by any further extension of the hearing arising out of the late service of the material. An extension of time was required because the court itself, not having previously seen a word of it, found it necessary to analyse it in court time. It was an important skeleton argument with important supporting material. Equally, the material which has since been served in time for the 8th April hearing, which included the important statement of Maria Gridley, for the most part contained matters which should have been produced to the court earlier. I accept that the most up to date detention review was that of 30th March. So, I have no doubt that, had the claimant not succeeded, all these matters would have resulted in an order for costs against the defendant arising out of the late service of the material to which I have referred. The question for me is whether it should be indemnity costs in relation to that.

[144]I am mindful of the overriding principle in Excelsior v Salisbury and Johnson

[2002] EWCA 879

, that the ultimate principle is whether the facts of the case and or the conduct of the party is such to take the situation from the norm, the norm being that costs should be on the standard basis. In McPhilemy v Times Newspapers

[2001] EWCA Civ 933

, the point was made by the Court of Appeal that costs on an indemnity basis is not penal, it carries no stigma or disapproval implied in the defendant's conduct. It indicates only that the court has not considered it unjust to make the order for indemnity costs.

[145]At the end of the day, I have decided not to make the order for indemnity costs. It seems to me the justice of the case is met by the fact that the defendant will have to meet the entirety of the costs in this case, including the costs which arise out of the fact that it has now extended over two hearing days as opposed to one, plus the hearing today for the purposes of judgment. I do not find it necessary to analyse the explanations laid before me by the Secretary of State through counsel for the delay. I accept that it was a case which required on-going assessment by the defendant and required approval as to the stance to be taken at the highest level within the defendant. That all said, it does not justify the conduct, and that is why, if the claimant had failed, I would in all likelihood have nonetheless made an order for costs against the defendant for costs thrown away as a result of the late delivery of this material. But taking everything in the round, justice is done, in my view, if costs are assessed on the standard basis.

[146]MISS BRAGANZA: One final matter, which maybe I should have raised before, is that the damages claim remains, and my suggestion on that --

[147]MISS ANDERSON: My Lord, the damages claim does not remain. My Lord made it very clear that it is as of today.

[148]MR JUSTICE KING: Yes. My judgment is that continuing detention is unlawful. I made no ruling that the detention prior to the making of this order is unlawful.

[149]MISS BRAGANZA: Very well.

[150]MR JUSTICE KING: That is why counsel for the defendant is followed if I had said, for example that it was lawful up to a date in 2009 but thereafter unlawful.

[151]MISS BRAGANZA: In those circumstances, I ask that the costs order have with it the usual provisions as to detailed assessment, as the claimant is publicly funded.

MR JUSTICE KING: Certainly.

[153]MISS ANDERSON: My Lord, may I just say on behalf my client, although we have not won the day, we are very grateful for the fair hearing that we have been given.

HY, R (On the Application Of) v Secretary of State for the Home Department [2010] EWHC 1678 (Admin)

J U D G M E N T (As Approved)

The applicable legal principles

Factors relied upon by the Secretary of State

The facts

bail applications

The FRS

Applications for an ETD

Pre 2009

The interview of December 2009

Events since the December interview

Conclusions

The evidence of Miss Gridley

MR JUSTICE KING: What should be dealt with by written submissions?

MR JUSTICE KING: Has anybody got a white book? The White Book I have is 2006.

MR JUSTICE KING: Just give me the CPR.

MR JUSTICE KING: Is there a heading?

MR JUSTICE KING: But is there a paragraph in the White Book?

MR JUSTICE KING: This is my fault entirely, this is 44.3?

MR JUSTICE KING: It was the first part, what was the first principle you read?

MR JUSTICE KING: The conduct of the party, yes.

MR JUSTICE KING: Yes.

MR JUSTICE KING: Yes.

MR JUSTICE KING: Yes.

MR JUSTICE KING: Yes.

MR JUSTICE KING: I may have given the wrong date in my judgment.

MR JUSTICE KING: Yes.

MR JUSTICE KING: Well, it would have been helpful in this case two days before the hearing.

MR JUSTICE KING: Thank you.

MR JUSTICE KING: Certainly.

Cited in 8 later judgments