Mahfoud, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2057 (Admin)

Case No CO/4996/2010[2010] EWHC 2057 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 August 2010
Before
THE HON MR JUSTICE HICKINBOTTOM
Between
THE QUEEN on the application ofClaimantADEL BEN MAHFOUDClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Amanda Weston (instructed by Glazer Delmar) for ClaimantLisa Busch (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 29 July 2010
JudgmentMR JUSTICE HICKINBOTTOM :Introduction
[1]The Claimant Adel Ben Mahfoud has been in detention since 8 June 2007, pending enforcement of an order of deportation to Algeria. In this judicial review, brought with the leave of Ian Dove QC sitting as a Deputy Judge of the High Court, he challenges the lawfulness of that detention.

The Law

[2]The relevant law is well-trodden, and uncontentious.[3]Article 5 of the European Convention, so far as relevant to this case, provides:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
[4]Paragraph 2(2) and (3) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”) provides:
“(2) Where notice has been given to a person in accordance with regulations… of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph… (2) above when the order is made, shall continue to be detained unlesshe is released on bail orthe Secretary of State directs otherwise).”
[5]These provisions have been considered by the courts in very many cases. I was particularly referred to R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (notably the much-cited passage of Dyson LJ, as he then was, at [46]-[48]), R (A, MA, B & ME) v Secretary of State for the Home Department [2007] EWHC 142 (Admin), R (Mohamed Bashir) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin), R (Wang) v Secretary of State for the Home Department [2009] EWHC 1578 (Admin), R (Rostrami) v Secretary of State for the Home Department [2009] EWHC 2094 (Admin) and R (HY) v Secretary of State for the Home Department [2010] EWHC 1678 (Admin), all of which are helpful in identifying the relevant principles; to which I would add the judgment of Davis J in R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin).[6]The jurisprudence has been built up through these cases, but consistently and upon firm foundations. I consider that the principles in respect of the lawfulness of administrative detention under Schedule 3 to the 1971 Act relevant to this claim are now well-settled, as follows:(i) The power of detention exists for the purpose of deporting the relevant person (“the deportee”).(ii) The power exists until deportation is effected: but it can only be exercised to detain the deportee for a period that is reasonable in all the circumstances.(iii) Whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deportee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the deportee must be released immediately.(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a “reasonable time” will depend upon the circumstances of a particular case, taking into account all relevant factors.(v) Those factors include: (a) The extent to which any delay is being or has been caused by the deportee’s own lack of cooperation in, for example, obtaining an emergency travel document (“ETD”) from his country of origin. (b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order). (c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur. (d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour. (e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order including obtaining an ETD. That list of factors is not, of course, exhaustive.(vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no “trump card”. Therefore, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee’s release.(vii) The burden of showing that detention is lawful lies upon the Secretary of State.

Factual Background

[7]The application of those principles to this case requires consideration of the factual background, including the reasons for the delay in the Claimant’s deportation: in this case, as I have indicated, the Claimant has been detained under the 1971 Act for nearly 38 months. I shall consider the background under three headings: immigration history (paragraphs 8-15 below), (ii) the history of efforts to obtain an ETD (paragraphs 16-35) and (iii) medical history (paragraphs 36-38).

Immigration History

[8]The Claimant first came to the attention of the immigration authorities on 16 June 2004, when he was arrested for transport fare evasion and illegal entry into the United Kingdom. He initially claimed to be French, but in interview said he was an Algerian national who had entered the United Kingdom clandestinely that week. He claimed asylum, but failed to attend his screening interview on 20 June, and disappeared.[9]On 13 November 2004, he was arrested for theft. The following day, he was served with Form IS191R, authorising his detention under the 1971 Act. On 22 December, he was convicted of the theft, sentenced to 3 months’ imprisonment, and recommended for deportation on the basis that he was “illegally here, no work, living on crime, addicted to cocaine”. He completed the custodial part of the sentence on 22 January 2005, but was thereafter detained under the 1971 Act. On 24 March, the Immigration and Nationality Directorate (now the United Kingdom Border Agency) (“the UKBA”), on behalf of the Secretary of State, served him with a notice of a decision to make a deportation order.[10]However, the previous day (23 March 2005), the Claimant had made an application for asylum. That was refused on 28 July 2005, but the Claimant appealed. In the meantime, on 17 June 2005, he was released from detention, subject to residence and reporting conditions. The appeal before the tribunal was listed for 2 September, but the Claimant did not attend; apparently because he was by then serving a 6 month term of imprisonment for another offence of theft, from which he was released on 13 October 2005.[11]The tribunal appeal was eventually relisted for 18 November 2005, but the Claimant again did not attend, and it was dismissed in his absence on the basis that he had submitted no evidence in support of his claim. The Claimant never challenged that decision. He thereafter failed to comply with both residence and reporting conditions, and was lost to the immigration authorities until March 2006.[12]On 9 March 2006, he was convicted of further charges of theft, which he committed whilst disguised as a blind man. In the course of their preparation of a pre-sentence report, the Claimant gave the Probation Service an account of French nationality, birth and schooling in France, and a fire in France in which his family were killed. On 22 March, he was sentenced to 15 months’ imprisonment for the theft.[13]On 25 October 2006, whilst on release on licence, he was again convicted of theft, for which he was sentenced to 14 months’ imprisonment on 22 November. He was due to be released in respect of that sentence on 8 June 2007.[14]On 4 March 2007, he was interviewed in prison by UKBA officers. He claimed to have been born in Paris, and to have a French passport. He gave details of the (French) hospital in which he was born, and an address in Paris at which his (French) passport could be found. However, a month later on 10 April, at a further interview, he said that he was Algerian and he gave some details of his family and the location in which he was brought up in Algeria.[15]On 17 May 2007, the Secretary of State signed a deportation order in respect of the Claimant, served on him the following day, together with a further form authorising his detention pending deportation. It is that authority under which the Claimant has been detained since 8 June 2007.

History of Attempts to Obtain an ETD

[16]The Claimant claims that he left Algeria following an arson attack on his home in Algiers, in which his father, mother and four brothers died and the house was burned to the ground. He left, he claims, fearful for his own safety. He arrived in the United Kingdom without any passport, or indeed any documents of identification. To facilitate his return to Algeria, he therefore requires an ETD from the Algerian authorities.[17]At the same time as he was served him with the notice of detention on 14 November 2004 (immediately following his first arrest for theft), the Claimant completed a “bio-data information” form, with limited information: his name, nationality (Algerian), country of birth (Algeria), date of birth, father’s name and his last employer in Algeria (“Centre de Fondation de la TV Algeria”): but nothing was submitted to the Algerian authorities at that time.[18]However, at the interview with the UKBA on 10 April 2007 (referred to in paragraph 14 above), he gave further information, including several aliases, his last known address in Algiers, the names and dates of birth of his mother and father (“Mohamed Benmahfoud 10-02-49”), his sister’s name, a school in Algeria, and the name and address of his local police station and hospital. With a photograph and fingerprints, that formed the basis of an ETD application sent by the UKBA to the Algerian Consulate in London on 13 April 2007.[19]The UKBA have generally been concerned about the time taken by the Algerian authorities to make their enquiries, a concern expressed as early as the Claimant’s 31 July 2007 Detention Review Report.[20]That first application was refused by the Consulate on 1 August 2007, in these terms:
“This is to inform you that the investigations carried out into the identification file of the above named have been unsuccessful. In fact, the information provided in the Identification File corresponds to an Algerian national, but the father of this person declared that the photos supplied are not of his son.”
(emphasis in the original).[21]That response was curious, in the light of the Claimant’s assertion that his father had died in a fire in 2003. The UKBA took the response to mean that the Algerian authorities accepted that the Claimant was Algerian, but did not accept the identity he asserted (Detention Review Report dated 1 October 2007).[22]When the Claimant was interviewed by the UKBA on 23 August 2007, he said he could not understand the Algerian authorities’ response. He was adamant that he had provided all of the information he could. On 28 February 2008, he completed another bio-data form, but, other than naming a brother, it contained no new information.[23]The UKBA, however, continued their efforts. In April 2008, they contacted the Algerian authorities about the discrepancy in relation to the Claimant’s father, which resulted in an interview between the Claimant and the Algerian authorities on 23 May; and the resubmission of the Claimant’s file by the Consulate to Algeria for identification, on 3 June. However, on 16 September 2008, the Consulate notified the UKBA that that had been unsuccessful, without comment from the Consulate except that, if further evidence that might establish Algerian nationality was available, it should be forwarded to them.[24]There were further interviews between the UKBA and the Claimant, at which the Claimant expressed a continued wish to return to Algeria, and increasing frustration at not being able to do so. Generally, he said that he could not provide any further information that might assist; but, at an interview on 6 November 2008, he did in fact provide a considerable amount of information not previously provided: the hospital in which he was born, the names of three further brothers, the names of three schools and some teachers, the name of his boss and two colleagues at the company he worked for, the name of the hospital at which he had been treated for his epilepsy, the fact that he had held an Algerian identity card, and details of his uncles and aunts.[25]That was all sent by the UKBA to the Algerian Consulate on 23 November by way of a further ETD application; but, on 30 January 2009, they responded by telephone to the effect that they did not regard the application as containing any new information and the application would stand unsuccessful unless and until fresh information was provided. Given that new information was clearly provided in November, the UKBA followed that up with the Consulate, only to be told, on 6 February 2009, that the authorities in Algeria did not tell the Consulate why applications were unsuccessful, but that “thorough checks” would have been carried out in Algeria, including at the Registry Office; and, in relation to the Claimant’s application, “There is information that is not correct”. They did not disclose to the UKBA, or apparently know, what information that might be. On 22 May 2009, the Algerian Embassy told the Foreign and Commonwealth Office that the Claimant would not be issued with an ETD until further evidence had been provided.[26]In October to December 2009, in a new attempt to provide the evidence the Algerian authorities required, there were discussions between the UKBA and the Claimant about him writing a letter in Arabic to the Algerian authorities with all of his personal information. The Claimant was reluctant to do so - he says that his written Arabic is very poor and, not only would such a letter be embarrassing, he was concerned that such a poor effort might be misconstrued as him being “non-compliant”. In the event, with the assistance of his solicitors, he wrote a letter in English, but with no substantive new information.[27]In March 2010, the Claimant’s verbal language was subject to language analysis, which confirmed that he was likely to be an Algerian from Algiers. A Eurodac fingerprint search proved negative.[28]The British Embassy in Algiers have also become involved. On 25 June 2009, they interviewed the Claimant by telephone, and he told them about a mobile phone that he had had when arrested, which might contain the telephone number of his sister and friends (although, in the event, when that phone was interrogated, through no fault of the Claimant’s, it proved impossible to obtain any information from it). The Claimant refused the suggestion that his picture might be put in local newspapers, on the basis, he says, that, whilst he does wish to return to Algeria, he is still fearful of the arsonists who attacked his home and therefore does not wish to publicise himself.[29]A search at the instigation of the Embassy for the home address that the Claimant had given suggested that there was no such address, although there is a suggestion that street names may have been changed since the claimant alleges he was in Algiers. Later (in March 2010), the family tracing project in Algiers reported that the asserted former address could not be found in the area the Claimant had indicated: although a road of the same name was found in another district. Enquiries there had drawn a blank. No one there knew the Claimant.[30]The school whose name the Claimant had given has been visited, but they would not give any information about former pupils. A request for information was made to the Director of the Centre of Education in Algiers in March 2010. No reply has yet been received[31]The Migration Delivery Service based in Algiers reported that the television company for which the Claimant asserted he had worked (“Centre de Fondation de la TV Algeria”) did not exist. The substantive hearing of this judicial review was adjourned from its original date of 7 June 2010 by Owen J, to allow further investigations into the Claimant’s alleged employment in the Algerian television. Further correspondence between the Claimant’s solicitor and Treasury Solicitor ensued, with the British Embassy in Algiers being sceptical that they would actually get anything out of the relevant Algerian authorities, one way or the other, because of the stance usually taken by the Algerian authorities to requests for information (see email dated 8 July 2010).[32]On 27 July 2010, the Claimant’s solicitors wrote with further details of the Claimant’s employment in Algerian television, not previously given. Those indicate that, from 1997 to 1999, he was apprenticed to the Centre de Fondation de la Télévision Algérienne, through Enterprise Nationale de Télévision, a state body which owns Télévision Algérienne. That apprenticeship was apparently in lieu of national military service, for which the Claimant was not eligible because of his health. From 1999, he worked as a cameraman for about 5 years. That letter indicates that television employees are forbidden from releasing any information. The UKBA are currently investigating those further leads.[33]It is very difficult to fault the efforts of the Secretary of State, in terms of either her diligence or urgency, with which she has attempted to satisfy the Algerian authorities as to the identity of the Claimant. Further, although before April 2007 the Claimant was certainly less than forthcoming with relevant information, since November 2008 he has provided considerable information as to his identity. He has become frustrated with the procedure, and has recently been less willing to respond to requests for information and cooperation; but there are currently no significant requests made of him by the UKBA that remain unanswered.[34]The Algerian authorities have made it clear that, on the basis of the information that is currently available, they will not accept the Claimant’s return. They have however clearly identified neither the perceived deficiencies in the information which has been provided, nor the further information would be sufficient to persuade them to accept the Claimant.[35]In seeking further evidence as to his identity, the only remaining leads that the UKBA have are as follows:(i) The Claimant’s schools. A request for access has been made to the Director of the Centre of Education in Algiers (see paragraph 30 above).(ii) The Claimant’s employment. The UKBA are currently following the leads provided by the further information they received on 27 July 2010 (see paragraph 32 above).(iii) The Claimant’s identity card and birth registration. The UKBA consider there are further enquires that might be made in Algeria in respect of these.

Medical History

[36]The Claimant has suffered from epilepsy since the age of 12 years. Prior to his entry into the United Kingdom, he had been on anti-epileptic medication, namely clonazepam, 2mg three times per day, for some years. In mid-2007, whilst he was in detention, that regime was apparently replaced by other anti-epileptic drugs (Epilim and carbamazepine), and then a reduced level of clonazepam, with the result that, he contends, his rate of seizures increased. There is some dispute as to how and why that change of medication occurred: but, since March 2010, his original drug regime has now been restored, and the Claimant makes no continuing complaint about his drug therapy. He is content that those drugs are properly controlling his condition.[37]However, he has in addition suffered from depression during his period of detention, and has made a number of attempts at self-harm or suicide. He was noted as being suicidal in March 2007 (when he attempted to cut himself with a plastic knife) and August/September 2007 (he attempted to hang himself on 11 September 2007). He was noted as being suicidal again in March 2009. On 11 June 2009, the Claimant’s health was noted as deteriorating, and both the Governor and Immigration Officer at the prison were noted as indicating that “they would not be surprised if the subject end up dying in the prison” (Detention Review Report dated 11 June 2009). At least some of those periods coincide with the period during which his epileptic drugs had changed, or when he appears to have been particularly frustrated with the lack of progress in returning to Algeria. He has not suffered from suicidal ideation recently and, in the report of Dr Charmian Goldwyn (who examined the Claimant on 1 March 2010), although the Claimant was noted as being depressed, he was not at all suicidal. As I understand it, Dr Goldwyn is a general practitioner, and there is no specific expert psychiatric evidence available.[38]The Claimant has, from time to time, been “non-compliant” and indeed aggressive towards institutional staff and representatives of the UKBA who have interviewed him. He was of course less than cooperative and forthcoming before April 2007, and his behaviour generally caused him to be detained in prison estate rather than a detention centre. More recently, there is a clear pattern of increasing frustration at being unable to return to Algeria. That has been exhibited by a lack of cooperation with those who are trying to obtain further information that might persuade the Algerian authorities to accept his return; and also to outbreaks of aggressive behaviour (e.g. the report of swearing, shouting and general intimidatory behaviour towards UKBA staff on 8 April 2010).

Discussion

[39]Ms Lisa Busch for the Secretary of State accepted, frankly and with good grace, that the Claimant has been the subject of administrative detention for a very long time, namely in excess of three years. However, she submitted that the Secretary of State and the UKBA on her behalf have throughout acted diligently and with at least reasonable speed in seeking to obtain the approval of the Algerian authorities to accept the Claimant’s return: and the reason for the length of time matters have taken to date is largely if not wholly the result of the Claimant’s lack of cooperation and dissembling with regard to his identity. She submitted that the correct interpretation of the Algerian Consulate’s letter of 1 August 2007 (see paragraph 20 above), in its proper context, is that the Claimant has stolen the identity of another (Algerian) person. Although the Algerian authorities have been coy about the respects in which the information he has provided is incorrect or insufficient to persuade them to accept his return, Ms Busch submitted that the theft of identity explains why the Algerian authorities have refused to accept his return, in the face of cogent evidence that he is Algerian and is desirous of returning to Algeria, and sufficient evidence to effect an identification.[40]Ms Busch was right to concede that the evidence is persuasive that the Claimant has a genuine desire to return to Algeria. He has consistently expressed that wish since April 2007, and the contemporaneous documents are redolent of it. By way of example, the Detention Review Report dated 13 March 2008, says, “Seems keen to go home” and “He really wants to go home”. The Report dated 25 September 2008, indicates that, “This case is a priority as he wants to go”: and, “His frustration seems to be becoming bad behaviour”. The documents show a consistent picture of a man who wishes to return to Algeria, becoming increasingly frustrated at being unable to do so. In his most recent statement, he says that he is “desperate to get back to Algeria” (Statement 2 July 2010, paragraph 2). I am satisfied that that is his wish, and has been his wish since 2007.[41]The documents also show someone who, as the UKBA accepted at the time, was being apparently relatively compliant and cooperative in providing information. That was the case from April 2007 (or, at least, 2008) until some time in mid- or late 2009, when the Claimant appears to have become less willing to cooperate as the frustration of his non-return set in. The Detention Review Report dated 20 March 2009, records that:
“Serious consideration has to be given on releasing the subject because he has complied with all the efforts made by us in obtaining an ETD for his removal, but the Algerian Consulate continue to refuse to issue a travel document for his removal.”
However, later in the year, both the Claimant and the UKBA appear to have adopted more entrenched positions as time wore on: and, starting with the Detention Review Report dated 15 April 2009, the UKBA appear to have become more and more sceptical of the story the Claimant was telling them with regard to his identity.[42]The Claimant through the UKBA has by now provided the Algerian authorities with a large amount of identification evidence; and certainly what one might consider to be more than adequate information from which a properly motivated state authority could make an identification of the subject. In my view (as I understand it, shared by the parties), either the Algerian authorities are able to identify the Claimant as who he says he is, but, for some reason, simply do not want to accept his return; or the core identification evidence provided by the Claimant is false, because he has simply made it up or (as Ms Busch submits is more likely) he has deliberately stolen another real person’s identity.[43]If the latter is the case, then no further information obtained by the UKBA is at all likely to persuade the Algerian authorities to accept the Claimant’s identity and his return: at best, it may go positively to disprove that he is who he says he is. If it is the former, then it is possible even yet that the UKBA will obtain further evidence so cogent that the Algerian authorities will be bound to accept the Claimant for whom he purports to be. It is difficult to discern whether the current impasse results from the dissembling of the Claimant; or the obduracy of the Algerian authorities; or possibly, I suppose, both. I accept that it has not been caused by the actions or inaction of the Secretary of State.[44]However, I need not make any positive findings as to where the fault lies: because, whoever and whatever is the cause, I simply have to consider whether, in the light of the past time spent in detention, the Secretary of State can persuade me that the Claimant can be deported within a reasonable time. Whatever the truthfulness or reliability of the Claimant, or obduracy or otherwise of the Algerian authorities, I am not so satisfied.[45]The Secretary of State’s difficulty in continuing to detain the Claimant is that, wherever the fault for the failure to obtain an ETD may lie, she is unable to suggest any date by which she expects the Claimant will be deported. There are, as I have indicated, some further avenues of enquiry that she can pursue; but none is likely to be quick, and they are all uncertain in both timing and outcome. I consider that Ms Busch was perfectly correct not to hazard such a date. To do so would have been mere speculation without any proper basis.[46]Ms Weston accepted that the Claimant had been a recidivist thief: but submitted that he is a changed man since he has been incarcerated. His acquisitive crime was driven by drug and gambling habits, from which he is now free. There are grounds for optimism, she submitted, that he will not offend if released; that he will not abscond; and that he will comply with conditions imposed upon him. Given the Claimant’s appalling record of both acquisitive offences and compliance with conditions imposed upon him, I am afraid I cannot fully share that optimism. If he is released, he will be unable to work and will receive only bare NASS support. As recently as 2009, he indicated that, in those circumstances, he is likely to turn to theft to supplement that meagre income. For the purposes of this claim, I accept the Secretary of State’s view that it is very likely that he will commit further crimes of acquisition, and he is also likely to breach any conditions imposed upon him[47]However, the Claimant cannot of course be detained simply to avoid that risk. Such detention would not be for the purpose of deportation. I have to consider, even given that risk, whether it is proportionate and reasonable to keep him detained, in all of the circumstances including the length of time he has already been detained and the prospective expected time table for his removal.[48]In relation to the risk posed, the Claimant’s offences in the past have been sometimes manipulative (e.g. his disguise as a blind man, to facilitate opportunist thefts), but merely acquisitive. None has been violent. If he commits further crimes and is caught, then he knows that he will be brought back before the courts and, with his record, a court is unlikely to be sympathetic. He can expect severe sentences for any further such crimes. In the past, he has also failed to comply with conditions, but has not attempted to avoid them in any sophisticated way. He has never used aliases to avoid detection, for example. Conditions can be imposed that will enable the authorities to keep track of him and, if he breaches any conditions, to take steps to re-incarcerate him. Whilst I know that this will come as little comfort to any people who, in the future, are the victims of further crimes of theft committed by the Claimant, his crimes in the past have been not of the most serious kind. Even if the chances of further crimes may be relatively high, the potential consequences of those crimes to the public at large are, relatively, not grave.[49]In relation to the length of the detention to date, it is nearly 38 months. Even since November 2008, when the Claimant provided most of the information he has provided and since when relatively little additional information has been added, 21 months have elapsed. As I have said, each case is dependent upon its own circumstances: and there is no clear line in time on one side of which detention is reasonable and on the other it is unreasonable. However, to allow continued detention after 38 months in the circumstances of this case would also, in my view, be contrary to the spirit and flow of authority.[50]I was referred to several cases in relation to the reasonableness of periods of administrative detention generally. In Wang, Mitting J (at [27]) said of a period of detention of 30 months: “On any view that is a very long time and right at the outer limit of the 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.[51]The risk in this case, as I have indicated, is not of very serious offences, but further offences of theft. In HY, on facts which bear some similarity to this case, King J held that continued detention after 45 months would not be lawful. I was not referred to any case - and certainly no case remotely similar to the facts of this case - in which detention of more than three years has been held to be reasonable or lawful.[52]The Claimant has been in administrative detention for over three years. Even taking account of the future risk as to offending and absconding, and even if he has concocted a sophisticated false identity as the Secretary of State suggests, that is a long time, in absolute terms and when considered in relation to other cases. Furthermore, whilst the deterioration in the Claimant’s health appears to me to have been the result more of the failure of Algeria to accept his return, his detention has clearly not assisted his mental condition.[53]However, crucially in my view, since the recent investigations into his alleged employment in Algeria have drawn a current blank, despite her sterling efforts over the past three years, the Secretary of State cannot with any degree of confidence say by when she expects to be in a position to deport the Claimant. Ms Busch, quite properly, did not pretend that she could assist with that crucial question. The Secretary of State has continuing hope, but no expectation at all of when she might be in a position to deport the Claimant.

Conclusion

[54]Ms Weston did not suggest that the Claimant’s detention has been unlawful since he was first detained. She submitted that it became unlawful from about September 2008. However, I am persuaded that, until the results of the recent employment enquiries were made, continued detention was justified (otherwise Owen J would have been bound to have released the Claimant in June, rather than adjourn pending the outcome of those enquiries: see paragraph 31 above). The Claimant is therefore not entitled to damages for his detention to date.[55]However, I am equally firmly of the view that continued detention would now be unlawful. Although, I am sure, the Secretary of State will continue to make diligent enquiries with a view to enabling the Claimant to return to Algeria - his wish, as well as hers - she is unable to identify any future date by when she has a realistic expectation that she will be able to effect removal of the Claimant. It is unlikely that any such date will be soon. In terms of the period of detention, in the words of Davis J in Abdi (at [76]), for the reasons I have given above, I think that the time has come in all of the circumstances of this particular case to say that enough is enough.[56]I will therefore dismiss the claim for damages; but make a declaration that continued detention of the Claimant is unlawful, and order the release of the Claimant, subject to conditions, no later than 4pm today. Those conditions are as follows: 1. To live and sleep each night at the arranged accommodation. 2. To report on a twice-weekly basis to the nearest UK Border Agency Reporting Centre every Tuesday and Thursday between 9am and 4pm. 3. That in the event of the Claimant applying for any variation of address or bail that the UK Border Agency be notified of the details of the application. 4. That the Claimant does not engaged in any employment or profession, paid or unpaid. 5. That the Claimant shall remain in the arranged accommodation identified in paragraph 1 between midnight and 6am.

Coda

[57]Three final points. First, although I have found that his continued detention would be unlawful, of course, if he commits further offences or fails to comply with the conditions I have imposed (or as they may be varied in the future), the Claimant will be liable to further imprisonment or detention.[58]Second, I should record that I have been informed that, when he is released, the Claimant has secured NASS support, and accommodation will be provided to him.[59]Finally, may I thank both Counsel for their articulate and helpful contributions to this claim. In particular, given the circumstances of the case since the recent exchanges in relation to the Claimant’s employment in Algeria, I consider the submissions of Ms Busch were commendably measured and realistic.

Cited in 16 later judgments

and 7 more of the most senior