(1) MA (2) TT v Secretary of State for the Home Department [2010] EWHC 2350 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

[2010] EWHC 2350 (Admin)

Case No Case No: CO/5554/2010 and CO/6397/2010

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

(1) MA (2) TTClaimants

Secretary of State for the Home DepartmentDefendant

Secretary of State for Foreign and Commonwealth Affairs

Interested Party in the case of TT

Before

Ian Dove Q.C.

Mr Graham Denholm (instructed by Pierce Glynn) for the Claimant MA

Mr Alex Goodman (instructed by Leigh Day & Co) for the Claimant TT

Dr Christopher Staker (instructed by Treasury Solicitors) for the Defendant

Hearing dates: 9th and 10th September 2010

[1]Ian Dove Q.C. : Introduction This case relates to the lawfulness of the detention of two Claimants who are both from Iran. They either are or have been detained for the purposes of deporting them from the UK following their conviction for criminal offences and the making of deportation orders in their cases. In the case of MA permission was granted to apply for Judicial Review by Simon J on the 9 th June 2010. In the case of TT the case was listed for a rolled up hearing. There was in both cases an application for confidentiality in respect of some of the evidence before me which I have dealt with below. There is also a further ground, ground 2, in the case of MA which is stayed pending a decision of the Supreme Court in relation to an appeal in R (WL and KM) v. SSHD

[2010] EWCA Civ 111

[2]The law in relation to each of these claims is similar as are the issues which are raised in both claims in relation to what is said to be the difficulties of returning people to Iran and in particular obtaining emergency travel documents for them. I propose therefore to deal with those two issues initially before dealing with the facts as they arise in the two individual cases. The Law

[3]The power to detain persons who it is proposed to deport is created by Section 5(5) of the Immigration Act 1971 which provides that Schedule 3 of the 1971 Act is to have effect in relation to people liable to deported. In particular Schedule 3 at paragraph 2 provides as follows:

" 2(1) Where a recommendation for deportation made by a Court is in force in respect of any person, and that person is not detained in pursuance of a sentence or order of any Court, he shall, unless the Court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail…(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 (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."

[4]Both of these Claimants have been detained pursuant to these provisions. The Courts have made clear that the power to detain exists when the Secretary of State remains intent upon removing a person and there is some prospect of achieving that. In particular in the case of R (Khadir) v. SSHD

[2005] UKHL 39

Lord Brown stated as follows:

" The true position in my judgment is this. "

Pending" in paragraph 16 means no more than "until". The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that a 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 (i.e. throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains "liable to detention" and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21. 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 is existence . True it is that in Tan Te Lam

[1997] AC 97

the Privy Council concluded that the power itself had ceased to exist. 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 para 24 above, Lord Browne-Wilkinson, having directly posed the question whether detention was "pending removal" then used the expression "if removal is not pending". That, however, can only have been a slip. He was clearly following Hardial Singh and no such error appears in Woolf J's approach."

[5]This leads on to one of the principal aspects of these cases. That is to say the question of whether or not the exercise and continued exercise of the power of detention has been unlawful. The first authority to which reference must be had is that referred to by Lord Brown above, that is the case of R v. Governor of Durham Prison Ex Parte Hardial Singh

[1984] 1 WLR 704

. In that case in the judgment of Woolf J the basis upon which the power had to be exercised lawfully was set out at page 706D to F as follows:

"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not given subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order, and in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention."

[6]That decision was considered and further explained in the case of R (I) v. SSHD

[2002] EWCA Civ 888

. In his judgment at paragraph 46 Dyson LJ set out the principles as follows:

"46 There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh [1984] 1WLR 704 , 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v. Tai A Chau Detention Centre [1987] AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment, Mr Robb correctly submitted that the following four principles emerge: (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 effect deportation within that reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. 47 Principles (ii) and (iii) are conceptually distinct. Principle (i) 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 the detained person 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 effect the deportation within a reasonable period the detention becomes unlawful even if the reasonable period has not yet expired. 48 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 of the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention upon 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."

[7]The principles in play in cases such as these were further considered by the Court of Appeal in the case of R (A) v. SSHD

[2007] EWCA Civ 804

. In the judgment of Toulson LJ at paragraphs 54-55 he examined the factors to be considered 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, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. A risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making. 55 A risk of offending if the person is not detained is an additional relevant factor, the strength of which will depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose and the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of the 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 in determining the reasonableness of detaining him pending his removal or departure."

[8]In the same case Keene LJ observed as follows:

"82 The combination of these two factors, namely a very high risk of absconding if released and a high risk of sexual reoffending, must be seen as justifying allowing the Secretary of State, in the words of Simon Brown LJ in R (I) "a substantially longer period of time within which to arrange the detainee's removal abroad"

. Whether the length of detention up to and including the "middle period" was nonetheless so long as to be unreasonable and thus unlawful is far from easy to determine. I recognise that it must be exceptional to regard lengthy administrative detention as lawful when there is some prospect of removal but no clearly predicted date for it. However when one adds to the assessment the fact that this detainee could have returned voluntarily to Somalia but had refused to do so, it seems to me that the answer has to be that his continued detention was still reasonable. He had it in his own hands to secure his release from detention by choosing to return voluntarily."

[9]A further illustration of the operation of the principles is to be found in the judgment of Mitting J in R (A) v. SSHD

[2008] EWHC 142 (Admin)

. In paragraphs 16 and 17 of his judgment Mitting J observed as follows:

"16 In those circumstances, for continued detention to be lawful two questions have to be capable of being answered. First, by when did the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation? Mr Patel, on instructions, is understandably unable to answer either of those questions, other than by the generality that the Secretary of State expects to be able to deport him within a reasonable time. Mr Patel realises that that begs the question. In my view, against the history that I have recited, there is simply no basis for concluding that A can be expected to be deported within the near future, nor can anybody, let alone the Secretary of State, give an answer to the first of those questions. An impasse has been reached in A's case. It has now been reached after the lapse of many months of detention. His detention has now become unlawful. 17 I reach that conclusion notwithstanding that he has committed a serious criminal offence and that there is in his case the risk of absconding. Those are factors that have to be weighed in the balance. Were there grounds for believing that his application for emergency travel documents would soon be resolved favourably, then those factors would have led me to uphold the lawfulness of his detention. Absent any basis for concluding that he can soon be deported, those factors do not outweigh the claim that he has to conditional release. I will turn to the conditions of release at the conclusion of this judgment."

[10]Against the backdrop of that exposition of the principles which are in play in cases of this kind it is also important to understand the role of the Court. It is undisputed that the burden of persuasion lies with the Secretary of State. The task for the Courts was considered by Field J in Youssef v. SSHD

[2004] EWHC 1884

in which in paragraph 62 of the judgment he concluded as follows:

"62 Whilst it is a necessary condition to the lawfulness of Mr Youssef's detention that the Home Secretary should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to be judge is the Wednesbury standard. I say this both because I can find nothing in the judgment of Woolf J in Hardial Singh that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision-maker as to the reasonableness of the executive's actions unless there are compelling reasons to the contrary, which I do not think there are. Accordingly, I hold that the reasonableness of the Home Secretary's view that there was a real prospect of being able to remove Mr Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision-maker, just as it will be the court as primary decision-maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to affect a lawful return are taken in a reasonable time."

[11]The correct approach was further considered by the Court of Appeal in the case of R(A) referred to above. In the judgment of Keene LJ at paragraph 71 he observed as follows:

"It is to my mind a remarkable proposition that the Courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the Courts of this Country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the Court itself to determine whether such a reasonable period has been exceeded. That has been the approach adopted in practice in the domestic cases to which we have been referred: Hardial Singh , R (I) v. SSHD and, to my mind Khadir . In addition, this issue fell to be considered explicitly in the case of Youssef v. SSHD [2004] EWHC 1884 , where Field J held that the Court was the primary decision-maker as to the reasonableness of the length of detention: see paragraph 62."

[12]Thus it is that in assessing the various factors which are pertinent to the question of whether or not the detention is lawful the court is not confined to reviewing that decision on public law grounds but is, as Field J observed, the primary decision maker, and is entitled to review the decision substantively and on its merits.

[13]During the course of argument attention was drawn to particular features of these two cases about which there has been some additional guidance in the case law.

[14]The first point which arises is the materiality of the decisions to refuse bail by immigration judges which have occurred in both of these cases. In that connection my attention has been drawn to the case of R (Konan) v. SSHD

[2004] EWHC 22

when Collins J had to consider the materiality of bail decisions in that case which related in part to the consideration of the lawfulness of the Claimants' detention. Collins J dealt with that submission in paragraph 30 of his judgment as follows:

"30 Mr Kovats submitted that Judicial Review was inappropriate since bail was an alternative remedy and in any event it was a collateral challenge to the refusals of bail. Both his points are thoroughly bad. An adjudicator in considering the bail application is not determining (indeed, he has no power to determine) the lawfulness of the detention. The grant of bail presupposes the power to detain since the breach of a bail condition can lead to reintroduction of the detention. Further, the requirement imposed by Article 5(4) of the ECHR that a detainee must "be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court" is not met by a right to seek bail. In Zamir v. UK (1983) 40 DR 42 at 50 (paragraph 109) the Commission said: "…This right must be seen as independent of the possibility of applying to a Court for release on bail."

Paragraph 38.1.1.1 of the Defendant's policy recognises that Judicial Review is the means by which the lawfulness of a detention may be challenged. To suggest, as Mr Kovats does, that a finding that the Claimants were unlawfully detained at least prior to 15 th November would necessarily impugn the decisions of the adjudicators who refused bail is nonsense. The one thing that is clear is that neither adjudicator considered nor did either have the material to decide whether the detention was unlawful. In truth, as I have said, while no doubt concerns about the lawfulness of the detention, if the issue were raised, might weigh in a decision on bail, the adjudicators had no power to decide that issue".

[15]Accepting entirely the clear exposition of Collins J in Konan's case and the logic of his approach I also accept as submitted by Dr Staker on behalf of the Defendant that the fact that bail has been refused in these cases is not irrelevant to the separate consideration of the lawfulness of the Claimants' detention. There may well be some overlap in relation to the considerations material to the grant of bail such as the risk of absconding or committing further offences which is also relevant to a consideration of whether or not detention is lawful. However, I also accept the submissions made on behalf of both Claimants that in assessing the weight to be attached to those bail decisions it is of course necessary to have regard to the extent and quality of the information which was available to the Immigration Judges who considered those applications. It is necessary to examine the evidence before this Court to see whether or not there is a broader range of material before this Court than that which was available to the Immigration Judges when forming their decisions.

[16]A consideration about which there were further legal submissions was the status in the appraisal process of non-cooperation on the part of the Claimant. As Dr Staker observed in the course of argument that cooperation can potentially come in a number of forms. There can be a positive and wilful refusal to cooperate in, for instance, the process of obtaining emergency travel documents ("ETDs"). Alternatively, the attempts made to cooperate in that process may be so feeble or apathetic as to amount, in effect, to a failure to cooperate. It is perfectly plain from the authorities that a failure to cooperate in the deportation process is a factor which it is perfectly proper for the Court to have regard to. However, in my judgment, it is clear that the extent to which weight could be attached to non-cooperation has to be viewed against the backdrop of what might in fact be the fruit of any cooperation which could have occurred. If it were the case that even with full cooperation it would not be possible, for instance, to provide ETDs for the Claimant then the fact that the Claimant has failed to cooperate is unlikely to attract very significant weight in the assessment of whether or not his detention remains lawful.

[17]Three relatively recent cases involving Iranians were relied upon in connection both with the circumstances in Iran but more particularly in respect of the question of non cooperation in the provision of ETDs. I propose to cite them in chronological order of the judgments being delivered. The first in time was the decision of Wyn Williams J in the case of Qaderi v. SSHD

[2008] EWHC 1033 (Admin)

in which Wyn Williams J observed at paragraphs 31 and 32 of his judgment as follows in relation to evidence he was provided by the Defendant about the process for obtaining ETDs for Iranians:

"31 To a substantial extent, at least, the proposition that it is not possible to remove Iranians who lack appropriate identity documents is contradicted by the evidence of Miss Honeyman. Her evidence is that the Iranian authorities have advised that evidence of identity can be obtained by either the individual in question or by friends or family on their behalf. Apparently the Claimant can nominate anyone to assist in the redocumentation process. The Claimant is likely to receive greater assistance if he makes contact with the Iranian Embassy himself and expresses a wish to return home – a step he has already taken. More recently, apparently, officials at the Iranian Embassy have been prepared to interview an individual with a view to ascertaining the best way of providing evidence of identity. Active consideration is now being given, as I understand it, to an attempt to arrange such an interview on behalf of the Claimant. 32 All that said, it remains the position that no emergency travel document will be supplied to the Claimant by the Iranian authorities until they are satisfied about his identity. Accordingly, there is bound to be some further delay before his removal."

[18]Wyn Williams J went on to assess the various factors which applied in that case and at paragraph 37 addressed the issue of cooperation as follows:

"37 On the other hand there are significant factors which point the opposite way. It seems clear to me that until December 2007 the Claimant was stubbornly refusing to take any step which would assist his return. I appreciate that in the early months between October 2006 and March 2007 the Claimant's cooperation was not sought but there is no reason to suppose, in my judgment that his attitude would have been any different in that period to the attitude which he displayed between March 2007 and December 2007. Had the Claimant been cooperative from the outset there would also have been some period of time during which the Claimant's identity was being verified. However, there is good reason to infer that a removal or departure would have taken place long before now. In my judgment on the basis of Miss Honeyman's statement the process would have been put in place which would have solved that problem of the Claimant's identity had the Claimant cooperated from the outset."

[19]In the light of this and his other conclusions Wyn Williams J formed the view that the Claimant's detention was not in that case unlawful.

[20]The next case which was decided approximately 1 month after the decision in Qaderi and in which judgment was given on the 23 rd June 2008, is that of R (MJ) v. SSHD

[2008] EWHC 1990 (Admin)

. In that case Sir George Newman sitting as a High Court Judge concluded that again the failure of the Claimant to cooperate was material to his assessment that detention in that case was not unlawful. In particular his assessment of this factor is to be found in paragraph 29 of his judgment as follows:

"29 As I conclude the position to be, there is every reason to believe that he would be removed within a very short space of time if a birth certificate or an identity card or other required proof of identity was available. I ask the question therefore: What prospect is there that such a document or documents could be made available? It seems to me that they could be made available if a sufficiently stern request was addressed to those who could assist in obtaining the documents. To have made simply one request, which on the evidence the Claimant did make but to do no more, and to provide no comment to the court as to the dilemma which the conduct of his family has apparently presented him, seems to me to indicate or leave open whether or not adequate explanation or adequate pressure has been brought to bear by the Claimant on those who can assist him to produce the documentation. In this regard, one also must observe that whilst those who have a part to play in people being returned to countries such as Iran may have sincere subjective fears for what might happen to a member of their family, and whilst in a particular case such fears might have a strong bearing in the court having to resolve such an issue as this (namely what are the prospects?) the court is bound to observe that, to have no evidence at all from the family members, to have no elucidation of the reasons for their fear and to have no particularisation of the circumstances as to why they believe there could be a risk – and indeed not simply in danger but that his life may be in danger – leaves the Court in a wholly speculative position."

[21]Sir George Newman concluded that there was a reasonable prospect if cooperation was forthcoming that the Claimant would be deported and this obviously informed his conclusions on the lawfulness of detention.

[22]The most recent case decided on the 7 th August 2009 is that of R (FR(Iran)) v. SSHD

[2009] EWHC 2094 (QB)

. This case concerned a person who Foskett J decided had deliberately failed to cooperate with his removal. He concluded in relation to the appraisal of that factor and the Claimant's case as follows:

"70 As to (a), all the evidence of the last 33 months suggests that there is no prospect at all of a change of heart on behalf of the Claimant despite two stays in prison in consequence of having failed to cooperate with the authorities. I am bound to say, having read the Claimant's letter of the 13 th May 2007, it seems to me that his position is likely to have become even more entrenched with the recent re-election of the Government from the influence of which, I infer, he fled originally in 2005. I think that the only legitimate conclusion I can draw on the evidence is that he has a firmly settled intention not to return to Iran and that he will do nothing to facilitate any process by which that will be achieved. As to (b), this can be nothing more than speculation on the evidence before me. I am alive to the fact that before Wyn Williams J in Qaderi there was some evidence that suggested that there might be some loosening of the requirements usually thought to be required, but my interpretation of what Wyn Williams J said in his judgment (at para 31 in particular) is that documentary support for the individual's identity was still required. All that, in any event, was over a year ago and there is no up to date evidence of the present position of the Iranian authorities. It is, of course, a country that has not been out of the news in recent weeks and months and current policies in relation to the issues that arise in this case may remain to be formulated. 71 If I apply conscientiously, as I must, the test established by previous cases of 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 time, then the answer on the evidence before me is clear – the Secretary of State has not established this. If anything, the evidence is weaker than it was in the case of I where all that was established was a hope that removal might be achieved within a few months. I do not think that the evidence even reaches that height in this case. In each of the cases of Qaduri and Jamshidi there was some, albeit arguably slight, basis for the Court to think that there was a prospect that the Secretary of State would be able to secure the removal of the two individuals concerned within a reasonable period. On the evidence before me, I am quite unable to conclude that this is so in relation to the Claimant. 72 I do not reach the conclusion to which I have referred with much enthusiasm given that it is the Claimant's own failure to cooperate that leads to it. It brings to mind the comments of Goldring J to which I drew attention in paragraphs 18 and 19 above. However, as the cases to which my attention has been drawn and to some of which I have referred make clear, that may be the inevitable consequence of applying the test established. At least in the Claimant's case, there is no basis for thinking that he will represent a threat to the public by the commission of the kind of serious criminal offences that those in other cases have committed. His only brush with the law is his resolute failure to cooperate with securing his return to Iran. It is impossible to say that there is no risk of him absconding given the resolute nature of his attitude to returning to Iran. However, that cannot now, in my view, override the consideration that his period in immigration detention should now be brought to an end. The kind of provisions that will be put in place on his release will be designed to minimise the risk of absconding without, of course, being able to remove the risk completely."

[23]The three cases I have most recently cited thus provide illustration of the materiality of a failure to cooperate with the Defendant in securing the documentation necessary to complete deportation and illustrate the approach to be taken to considering the weight to attach to that consideration in the overall assessment.

[24]In summary the legal submissions which I have heard have clearly established in my view that in making the assessment required by Hardial Singh it is necessary firstly to ascertain the factors which are likely in the individual case to have a bearing upon whether or not the exercise of the power to detain has been lawful. Once the factors that are pertinent in the case have been identified it is then necessary to assess given the evidence in the case what weight is to be attached to those factors. All parties accepted that in such an assessment there is no particular factor which will be in and of itself overriding of all other considerations. It is a highly fact sensitive assessment which will depend critically upon the circumstances of each individual case. It requires a careful and holistic examination of all of the considerations which bear upon the reasonableness of the exercise of the power to detain. Circumstances pertaining to return to Iran

[25]My citation of the three Iranian cases of Qaduri , MJ and R(FR(Iran)) all provide some context to the issues arising in respect of returns to Iran and in particular the relevance of the prospect of securing ETDs for Claimants. The evidence in the present case moves matters on from the evidence referred to in those cases. I have been presented with up to date material which I strongly suspect provides greater detail in relation to the operation of providing ETDs for Iranians and the issues that such applications raise.

[26]By way of introduction to these issues it is in my view helpful to set out the response to the proceedings which has been received from the Foreign and Commonwealth Office (the Interested Party in the case of TT). By letter of the 6 th September 2010 they wrote to the Court addressing the issues which have arisen both generally and in particular in respect of the case of TT. The letter records that there have been a number of meetings both in June 2009 and April 2010 between the representatives of the UKBA, the FCO and Iranian Embassy officials to discuss the processing of applications for ETDs. The letter having noted this goes on as follows:

"At this meeting several cases were highlighted though it was acknowledged that there were many cases awaiting decisions. Following the meeting four ETDs were granted. Due to the successful meeting it was established that these should occur more frequently, however, the political relationship between the UK and Iran remains difficult. Bilateral relations between the UK and Iran have been strained for a number of years, but have become particularly difficult in the last 12 months. In June 2009, following the disputed presidential elections in Iran, nine locally engaged members of staff at the British Embassy were arrested as part of an attempt to blame the UK for Iran's internal problems. In addition two diplomats were expelled from Iran, and as a result the UK expelled two Iranian diplomats from the Iranian Embassy in London. As part of the UK's response, the FCO agreed that it could not continue business as usual… On the issue of whether the Iranian Embassy has become more reticent about issuing ETDs it is noted that the Iranian Embassy does not fully cooperate with the UKBA or the FCO, although it is difficult to say whether this is a deliberate policy. Securing cooperation on the return of Iranian nationals has always been a difficult aspect of our relationship. However it is not judged that this has become more protracted in recent times. It is not considered that there is a political motivation for holding up the ETD applications of the gentlemen in question, at least none that FCO are aware of. It is considered that the UKBA are doing everything in their ability to assist the gentlemen in their applications. It is considered that the Claimants are able to contact the Embassy themselves to pursue their applications if they are sincere in their desire to return to Iran. The provision of a written statement expressing their desire to return and supporting documentary evidence will go far to speeding up their application. Should the said documentation be in Iran, the gentlemen's family members/friends are able to take this into the British Embassy Tehran, by appointment, who will then forward the documentation to the FCO in London who are then able to facilitate presenting this supporting evidence on their behalf to the Iranian Embassy in London. It is considered therefore that though definite timescales cannot be provided, should the above occur, the Claimants, with the assistance of HMG should be able to obtain an ETD without significant delay."

[27]Against this background evidence was provided as to the procedure for obtaining an ETD which will be necessary for both of these Claimants were they to be returned to Iran. There has been for some time internal guidance provided in respect of this issue. There are two versions before the Court and some light is cast on the difference between the two versions in the third witness statement from Mr Gordon who is a business expert in the Defendants' Returns Group Documentation Unit ("RGDU"). To deal firstly with those matters which are in common between the two versions of the policy, firstly, it is clear that the application should be accompanied by a signed declaration from the Applicant evidencing his willingness to return to Iran. Secondly the policies describe forms of acceptable supporting identification evidence. In the version of the policy which pertained until June 2009 this is set out as follows:

"The authorities in both Tehran and London advise (April and June 2009, respectively) that there are five types of acceptable supporting evidence: Expired passport (Gozarnamgh) National Identification Book (Shedasnameh)… National ID Card (Carte Melli)… Military ID Card; Driving licence."

[28]Mr Gordon indicates that there was a change in policy in June 2009 as a result of an indication from the Iranian authorities that they were prepared to relax their documentation requirement at that time and consider ETD applications which were either accompanied by uncertified photocopies of identity documents or, alternatively, unaccompanied by any supporting identification documentation at all. In the second version of the policy which was promulgated following that indication, there were approximate timescales provided in the guidance for the obtaining of a travel document. The guidance observes that the timescales are provided to reflect the realistic timeframe for obtaining an ETD document "based on historical management information". Whilst it observes in a note that the timescales all differ depending on whether original supporting evidence or copies or no supporting evidence is provided the approximate timescale in fact described in the guidance in respect of those three cases is "no consistent realistic timescale".

[29]Following an application for disclosure statistical information has been provided by Mr Gordon on behalf of the Defendants relating to the number of applications made in approximately the last ten years and how many have been agreed by the Iranian authorities. There is additionally a breakdown showing how long it has taken for agreement to be provided.

[30]During the course of argument various arithmetical analyses were presented on behalf of the parties in respect of these statistics. Whilst when presented with statistics undertaking arithmetical calculations is probably unavoidable, in my view it is necessary to step back from such precise calculations and examine the impression which one gains from the statistics taken overall. It is important when undertaking that exercise to bear in mind that the statistics are obviously incomplete and they are missing several important components for the purposes of this case. For instance, the data does not deal with the number of applicants who were foreign national prisoners or were being deported following the commission of a criminal offence. Further there are differences between the number of persons whose applications were agreed and the number who were removed. It follows therefore that this is not a complete data set for undertaking some sophisticated statistical analysis in respect of the prospects of a particular Claimant being provided with an ETD.

[31]In the light of the incomplete nature of the data I was invited by the Claimants to draw adverse inferences in respect of any gaps in it. In my view that approach is not necessary in this case bearing in mind that the reason given for the data being missing was that the Defendant did not hold information about applicants for ETD's in a form which would have enabled that material to be easily provided. I consider that the proper approach is to look at the statistics on their merits bearing in mind that they are incomplete and to see what can be drawn from them, and temper the weight to be attached to them on the basis that they are not a comprehensive set of data.

[32]In addition to this material Mr Gordon has provided details in relation to seven ETDs granted since the 1 st December 2009. The summaries of these cases show that in two cases ETD's were provided without the UKBA having any record of supporting evidence being provided. Although in the course of argument it was pointed out that this evidence was not conclusive proof beyond doubt that the ETD had been agreed without documentation since the Applicant may have brought their own documentation and provided it without the knowledge of UKBA to the Iranian Embassy I am not prepared to conclude on the basis of that submission that there is no prospect of an ETD being granted without supporting documentation. The evidence appears on balance to support the notion that on occasions in particular cases, there will be ETDs agreed by the Iranian Embassy where no supporting evidence exists.

[33]Drawing the threads of this evidence together it appears to me that the following flows from it. Firstly there have been difficulties in securing ETDs for Iranian Nationals for reasons which it will be unprofitable to speculate about and which it is unnecessary to do so for the purposes of my decisions. The evidence of the FCO together with the statistical material illustrates that firstly there are very many applications made but a far more limited number agreed and secondly that the longer an application remains outstanding the chances of it being approved rapidly diminish. Thus, whilst it is not unheard of for applications to be agreed over 18 months after they have been made, they are a tiny proportion of the applications made in total. Similarly the evidence demonstrates that whilst it is not unheard of for an application for an ETD to be granted by the Iranian Embassy without supporting documentation that appears to be unusual. Finally it appears that by comparison with the statistical material available for the previous 10 years or so the experience of the last 12 months has been that a significantly smaller proportion of applications has been agreed than has previously been the case. These conclusions, which are reached on the basis of the evidence as it currently exists, have to be taken into account in the context of the particular circumstances pertaining to the two Claimants in this case. I thus propose now to turn to the facts of their individual cases and the conclusions which I reach in relation to each of them. The case of MA

[34]Whilst the evidence is not completely clear MA's date of birth has been taken to be the 15 th May 1987 for the purposes of legal proceedings in relation to him. He entered the UK on the 24 th August 2004 and claimed asylum. That asylum claim was refused on the 14 th October 2004 and he appealed against the refusal. On the 1 st December 2004 he did not attend the asylum appeal and it was determined adversely in his absence. The determination in his case was promulgated on the 9 th December 2004.

[35]On the 13 th July 2006 MA was encountered by the Defendant and further reporting restrictions were imposed upon him. He applied on the 18 th December for Assisted Voluntary Return and whilst the application was approved on the 20 th December 2006, on the 4 th January 2007 he withdrew from that.

[36]On or about the 20 th July 2007 the Claimant was arrested and on 6 th August 2007 convicted of possessing a false identity document and sentenced to 6 months imprisonment at Warwick Crown Court. There was a recommendation for deportation made by the sentencing Judge and on the 9 th October 2007 a decision was taken to deport MA and detain him for that purpose on completion of his sentence. The sentence ended on the 19 th October 2007 and he was then detained under the Immigration Act powers for the purpose of deporting him. On the 26 th October 2007 he was interviewed in order to obtain Bio-Data for an ETD application. The bio-data form was completed although there were difficulties owing to MA being illiterate. Furthermore it was noted that MA had no supporting identification evidence and that he was indicating his family would be in danger if they went to the authorities in Iran to obtain documentation for him.

[37]The Claimant had appealed against the deportation order and on the 23 rd November 2007 that appeal was heard leading to a decision dismissing it on the 3 rd December 2007 and the Claimant being appeal rights exhausted on the 12 th December 2007.

[38]On the 28 th February 2008 the Claimant applied to the Defendant to return voluntarily to Iran but that application was rejected by the Defendant as the deportation order was to be pursued. The deportation order was signed on the 17 th March 2008 and served two days later. During the course of a hearing on the 28 th March 2008 the Defendant's representative in an asylum support appeal reiterated that voluntary return would not be pursued in the case because the deportation proceedings were on foot and the Defendant would not circumvent them by permitting voluntary return. On the 22 nd April 2008 the Claimant completed Bio-Data forms and an ETD application form which was sent to the RGDU for processing. This application was rejected on the 28 th April 2008 on the basis that RGDU required original or certified copies of an ID Card or Birth Certificate and photocopies were not acceptable. An interview was to be arranged to encourage MA to request or obtain further supporting documentation from Iran.

[39]On the 8 th May 2008 for the purposes of making a bail application MA provided a statement addressing a number of issues including the circumstances of his home village and the availability of documentation to him (it obviously becoming evident that the absence of documentation was operating as a constraint on progressing this case). In that witness statement he explained some confusion about the various spellings of his name that can be encountered within the documentation and then goes on to describe his home area as follows: "6 Banu is not well organised and there is neither postcode nor street names. There are only dirty roads and it is in the most rural area of Iran. There are no land phone lines and if people need to make a phone call they either use mobile phones (if they can afford them) or go to Sardasht to call from local shops. There is electricity in Banu, but no running water and no sewages. There is no post office. 7 There is no public transport between Banu and Sardasht and some local men would make a profit from transporting people around by Jeep. I used to travel to Sardasht to do shopping, see friends and sell the alcohol that I smuggled from Iraq… 9 When I left Banu in 2004 there were about 16-18 houses. All the houses were very close to each other. Because it is a small town, I used to know everybody. Banu is in a flat area, close to mountains, Holby Alan area, the highest peak is called Berleyz… 11 I have never had a birth certificate. I remember that I had an Iranian ID but I left it at home. I never needed to carry the ID while in Iran. When I came to the UK, my family would call me on my mobile phone from shops in Sardasht. could not call them… 12 …It is not possible for me to contact my family because of the lack of a communication system. I am also not able to obtain any document from Iran because I was born in a very rural area and from detention it is difficult to contact anyone. I have never had any interview with the Iranian Embassy but I am willing to answer any question the Embassy or the Home Office might have to clarify my identity and to help me get a travel document to return to Iran. I am willing to cooperate with my return and I am willing to sign any document".

[40]This witness statement was served in support of a bail application. Furthermore there was correspondence from MA's solicitor dated the 14 th May 2008 confirming their client's willingness to return to Iran and cooperate, and also his inability to obtain any documents concerning his identity but noting the detailed statement that he has provided.

[41]Bail was refused on the 2 nd June 2008 and it appears it was suggested that the Claimant might use the shops in Sardasht as a means of seeking to contact his family. Further reviews of bail in the summer of 2008 again concluded that MA was unwilling to provide the required document and refusing to assist in the provision of information.

[42]In view of the impasse which had been reached on the 13 th October 2008 MA was served with a letter warning him of prosecution under Section 35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and giving him 28 days to submit the required identity documentation. This led to MA providing the details of two friends in Iran and writing a letter to his family in Iran on the 17 th November 2008 which was posted by UKBA officials. As part of the regular review of MA's detention his case was considered by a senior officer of the Defendant on the 21 st January 2009 and a decision was made to continue detention. On the 26 th January 2009 he was advised that he was eligible for the Facilitated Returns Scheme and he applied for it signing a disclaimer indicating his willingness to return to Iran. His detention was again reviewed on the 12 th March 2009 and the following was noted: "Another Iranian case where there is no hope of removal unless the subject cooperates. Despite him then having completed 16 months in detention following his 6 months sentence (for false documentation) the CEO recently refused to authorise his release. It is fortunate, then, that at long last [MA] does seem to be cooperating and making attempts to obtain original identity documents from Iran. There also seems to be a possibility of him attending the Iranian Embassy for an interview: RGDU is trying to arrange this. He has signed up for FRS. The lack of a travel document is the only thing preventing us from returning [MA] to Iran, and it is his previous refusal to cooperate which has considerably prolonged the amount of time he has hitherto spent in detention".

[43]The detention review conducted on the 7 th April 2009 recorded that removal "now looks in prospect". A further review of detention on the 3 rd June 2009 whilst authorising continued detention observed as follows:

"[MA] is relatively low risk despite his lack of compliance and the decision on continued detention is finely balanced given the presumption in favour of release. On balance the risk of his absconding at this stage is just high enough to counter the presumption to release. However the case should be submitted under Operation Cullen if there is no progress before the next review is due."

[44]On the 11 th June 2009 MA again completed an ETD form and on the 19 th June 2009 wrote to the Iranian Embassy requesting assistance in relation to his return to Iran. It appears that at some point in August the ETD application was with the Iranian Embassy for their consideration. On the 12 th August 2009 MA wrote to his brother and the Ministry of Foreign Affairs again seeking assistance in relation to his return to Iran. Throughout this period bail was regularly refused on the basis of concerns about compliance with bail conditions, absconding and a failure to cooperate in obtaining necessary documentation to facilitate the issue of an ETD.

[45]On the 10 th September the RGDU received a letter from the Iranian Embassy requesting a face to face interview with MA. This occurred on the 22 nd September 2009. MA contends the interview was brief and he was told by an official that nothing could be done until proof of identity was provided. It appears that the letter from the Embassy that was received on the 10 th September 2009 requested the provision of Iranian Birth Certificate, National ID, driving licence or an original document proving MA was an Iranian national. There was a further review of MA's detention on the 15 th December 2009 at which the following was observed:

"The subject is now apparently complying with the redocumentation process but this is only after many months of non-compliance and concerted attempts to frustrate removal. On balance I consider the risk of absconding still to be extremely high and to outweigh the presumption of release as removal could be imminent, continued detention remains appropriate. Please use every effort to monitor the progress of the ETD."

[46]A further interview was arranged for MA at the Iranian Embassy on the 6 th January 2010 and following that interview the Embassy confirmed on the 28 th January 2010 that a decision was to be expected shortly. When the matter was apparently followed up by the Defendant in the Monthly Progress report provided to the Appellant the following is recorded:

"On 3 rd March 2010 the Iranian Embassy were contacted regarding if a decision had been made on your travel document application. The Iranian Embassy spokesperson confirmed that your application was still under consideration and that the documentation unit would be notified by the Embassy in due course. The Iranian Embassy spokesperson stated that they could provide no approximate timescale at this time."

[47]By this time MA's Solicitors had become involved and were corresponding with the Iranian Consulate and the Ministry of Foreign Affairs in Tehran. On the 22 nd April 2010 it was said that the Iranian Embassy was still working on the application and would contact the Defendant "in due course". The detention was further reviewed on the 12 th May 2010 and the 8 th June 2010. In this review as had been noted on numerous occasions and reiterated through from one detention review to another, MA is identified as posing a "significant risk to the public" alongside the concerns that he is of a risk in relation to absconding. The conclusion in June 2010 which was given for his detention was as follows: "Based on the presumption to release, I have considered whether to continue the detention of this detainee. In light of the risk of further offending and the harm that may cause, as well as the likelihood of absconding, I consider these additional factors outweigh the presumption to release. I therefore authorise their detention for a further 28 days".

[48]In fact these proceedings had been issued on the 13 th May 2010 and following the grant of permission by Simon J on the 9 th June 2010 bail was granted to MA on the 14 th June 2010.

[49]Against that background the question for me to determine is whether or not any period of MA's detention was unlawful and in breach of the Hardial Singh principles.

[50]It is a curious feature of MA's case that it appears repeated on several occasions within the detention reviews that one of the factors borne in mind by the Defendant in seeking to detain him was a concern in relation to risk to the public. Dr Staker sought to try to characterise these references as being merely another way of describing the risk of absconding. Having considered the language in the documents that does not to my mind appear a tenable proposition. It is curious that the Defendant's officials relied upon this factor given that in the case before me the Defendant does not put her case on the basis that the Claimant would present either a high risk of reoffending or a high risk to society. In my view given his history that judgment is appropriate. I do not attach any significant weight to a risk of reoffending in his case bearing in mind he has only been convicted of one offence of using a false document and has no other antecedent history.

[51]There is clearly a risk of absconding in his case and the Defendant was entitled to take account of the fact that from October 2004 to July 2006 he failed to comply with reporting conditions and in addition he is a person who has no ties in the UK. I readily accept therefore that the risk of absconding in his case was a material factor to which weight was and should have been attached in considering the need for him to be detained.

[52]This brings me to the two more contentious issues in the case of MA. The first is the question of the extent to which weight should be attached to what has consistently been characterised as his failure to cooperate in securing documentation. On the one hand it is clear to me that MA was not in the initial stages of his detention at all proactive in relation to seeking to obtain documentation. It is observed on his behalf that it appears that it was not until the 2 nd June 2008 that, for instance, it was suggested he use shops in Sardasht as a means of contacting his family. Nevertheless in my view what was being contemplated in this case, namely the pursuit of documents through communication with Iran, was not a matter of such novelty or complexity that it required MA to be told what was required of him. It is plain that he had solicitors to advise him, certainly at around that time, and that the purpose of producing his statement in May 2008 was to direct the decision maker to the problems in providing documentation from Iran.

[53]On the other hand that leads to a factor in support of MA in this case in my view, namely the obvious difficulties in communicating with his family and obtaining the documentation. He is an illiterate person from a remote part of Iran in which communication systems barely exist. Thus consideration has to be given to what purpose might be served by even attempting the communication which was attempted in November 2008.

[54]Taking these factors into account whilst I accept the submissions of Dr Staker that in reality there was inertia on the part of MA and this is evidenced not only by the timescales involved but also by his making different excuses for an inability to obtain the documentation that has to be balanced against the realism of whether or not and the extent to which documents might be forthcoming. It cannot be overlooked that in the event even after this communication was attempted, no documents have been secured nor has MA been able to communicate with his family. Equally I do not accept that the prospects of securing documentation from Iran were so remote that there should not have been any attempt to do so, and in this case there was no attempt for a significant period. Overall therefore in my judgment some weight can be attached to the extent to which MA failed to cooperate in the documentation process, certainly up until the point at which it would have become clear that it was highly unlikely that any documentation was to be forthcoming from Iran which was probably the early summer of 2009. This conclusion could have been reached sooner if MA had made earlier and more concerted efforts to communicate with his contacts in Iran. Certainly prior to that time it appears that without documentation any such application would not have been accepted. However the weight to be attached to that factor has to be diminished in recent times on the basis that the attempts which were made to obtain documentation from Iran were in the circumstances speculative.

[55]The other issue which is of significance in this case and upon which Mr Denholm in his submission places significant weight is the generic information which I have referred to above in respect of the prospects of securing a ETD for an Iranian in MA's circumstances. It appears clear to me that prior to June 2009 there would be little if any prospect of an ETD being forthcoming because as Mr Gordon has observed prior to that time the Iranian authorities would not accept an application unaccompanied by supporting identification documentation of the kind prescribed. That approach is corroborated by the RGDU's rejection of MA's application in April 2008.

[56]On the basis of the findings I have set out above I do not accept that after June 2009 the submission of an application for an ETD to the Iranian Embassy without prescribed supporting documentation was an entirely futile exercise since it appears that there have been some cases in which such a document was issued notwithstanding the absence of supporting documents. Further it appears that at that time the Iranian Embassy indicated their willingness to consider such applications which they would not have done if they were in principle opposed to agreeing such applications in all cases. However, as I observed above, that has to be tempered with reflecting upon the conclusion that the information suggests that the longer the application has been with the Embassy without an ETD being agreed, the less likely it is that the application will be agreed.

[57]In this case therefore the longer time passed from the submission of the application in August 2009 without it being agreed the prospects of that occurring significantly diminished. Whilst there appeared to be grounds for hope of an early agreement of an ETD in the light of his being required to attend interviews in September 2009 and January 2010, by the time March 2010 had been reached it appears plain to me that the prospects of an ETD being agreed within any reasonable timescale had largely evaporated. This was so notwithstanding the regular chasing of the Iranian authorities in relation to the application by the Defendant.

[58]Drawing those conclusions together I am satisfied that MA's detention was lawful and justified under Hardial Singh principles for the period up to June 2009 bearing in mind the risk of absconding in his case and the difficulties with securing cooperation to attempt to obtain documents from Iran. After that time and in the light of the Iranian authorities contemplating agreeing applications without documentation, this development coupled with the risk of absconding in my judgment justified detention whilst the application that was submitted to the Iranian Embassy was pursued. However, by the 3 rd March 2010 when the Iranian Embassy confirmed there was "no approximate timescale" to the determination of the application against the backdrop of experience of dealing with these applications generally, the risk of absconding alone no longer justified the continuing detention of MA in circumstances where the Defendant could not provide a reasonable timescale for his removal. In those circumstances I conclude that his detention was unlawful from the 3 rd March 2010 until the 14 th June 2010 when bail was granted. To the extent that this conclusion is at odds with the decision of Immigration Judges in relation to his bail it is based upon fuller information in relation to the prospects of securing an ETD in his case as set out above. The case of TT

[59]TT was born on the 1 st September 1981 and arrived in the UK and claimed asylum on the 12 th January 2001. His claim for asylum was refused on the 6 th June 2001 and the appeal against that refusal dismissed on the 6 th April 2002 leading to him being appeal rights exhausted on the 16 th May 2002.

[60]On the 1 st March 2007 he was arrested in relation to suspicion of drugs offences but released. Again, on the 11 th May 2007 he was arrested on suspicion of criminal damage and whilst he was released without charge enquiry into his immigration status made it clear that he had no basis to remain in the UK and the Police retained photographs, Bio-Data and an original birth certificate which were sent to the RGDU. Having indicated on the 16 th May 2007 that he wished to return to Iran an ETD application was submitted on TT's behalf to the Iranian Embassy on the 18 th May 2007. That application was supported by the inclusion of TT's original birth certificate and a copy of his Military Service Exemption Document. It is not disputed that those documents comply with the prescription of appropriate identity documents contained in the guidance to which I have referred above.

[61]On the 9 th June 2007 TT was arrested for burglary and charged and following conviction on the 7 th September 2007 he was sentenced to 12 months imprisonment at Bournemouth Crown Court. The Judge recommended his deportation. Whilst these criminal proceedings had been progressing the RGDU had been chasing the Iranian Embassy in relation to the ETD application and the Iranian Embassy had confirmed that they required TT to attend for an Interview.

[62]TT made a fresh asylum claim on the 17 th October 2007 which he then withdrew on the 4 th March 2008 signing a disclaimer stating he wished to be deported. He remained detained under immigration powers on the 7 th March 2008 and again signed a further disclaimer indicating his wish to return.

[63]On the 27 th March 2008 he attended the Iranian Embassy for a face to face interview. This led to the Embassy indicating on the 28 th March 2008 that they would agree to issue an ETD subject to the provision of photographs, a signed disclaimer from TT and a letter from UKBA confirming he had claimed asylum. The notes in TT's file held by the Defendant confirms that this third item was not something that the Defendant was prepared to provide in accordance with its usual procedures.

[64]On the 3 rd April 2008 TT again claimed asylum. On the 21 st April 2008 the RGDU sent the photographs that the Iranian Embassy had requested to them.

[65]On the 12 th May 2008 a Deportation Order was signed and an appeal which was attempted against that decision was rejected by the AIT as having been received out of time. During June debate continued as to whether or not the letter from UKBA confirming TT had claimed asylum was required and ultimately it appears that the Iranian Embassy decided they no longer needed it. From July through to November 2008 it appears firstly that the Iranian Embassy indicated they had no paperwork for TT and a second application needed to be made on the 18 th August 2008. Secondly, there was further discussion in relation to the whereabouts of TT's birth certificate which he stated he had provided to the Police at an earlier time. It ultimately became clear that the birth certificate had been sent accompanying the earlier ETD application of the 18 th May 2007 and the RGDU made efforts to arrange an interview with TT.

[66]Whilst on the 29 th October 2008 TT contacted the Defendant indicating he wished to make a fresh asylum claim in fact subsequently on the 2 nd December 2008 he signed another disclaimer indicating his willingness to return to Iran. Following this on the 4 th December he attended the Iranian Embassy for a face to face interview. On the 18 th December 2008 TT was granted bail. He submitted a fresh asylum claim on the 2 nd February 2009 and was processed in relation to that claim. It appears that on the 26 th March 2009 the Iranian Embassy informed the RGDU that his application was being considered and that further checks were being undertaken in relation to it.

[67]On the 22nd April 2009 TT absconded and travelled to Ireland where he made a claim for asylum. When that claim was investigated it became clear that he had already claimed asylum in the UK and he was therefore returned to the UK on the 18 th June 2009 under the Dublin Convention. He made a fresh claim immediately upon his return on that date which was refused on the 26 th June 2009. On the 9 th October 2009 TT wrote to the Defendant requesting assistance to facilitate his voluntary return to Iran and a few days later wrote again requesting that the Defendant send passport photographs to the Iranian Embassy as the Embassy had informed him that an ETD would be issued on receipt of those photographs.

[68]On the 3 rd November 2009 the Iranian Embassy verbally confirmed that an ETD would be issued in TT's case and this was followed up by a written agreement to issue the ETD on the following day. This led to removal directions being set for the 1 st December 2009 and on the 24 th November 2009 a fax was sent to the Iranian Embassy with the flight details that had been arranged. Unfortunately on the 1 st December 2009 this attempt to remove TT failed because the Iranian Embassy in the event refused to issue the ETD. Following this there was a telephone interview on the 4 th December 2009 between TT and the Iranian Embassy when TT became angry at the suggestion from the official at the Iranian Embassy that the ETD had been refused because TT did not wish to return to Iran. TT considered there was no truth in that suggestion and in a fit of temper told the Embassy he no longer wished to return.

[69]Notwithstanding this a further interview was arranged with the Iranian Embassy for the 12 th January 2010. That interview was cancelled. The rearranged interview occurred on the 2 nd March 2010. Following this interview the RGDU chased the Iranian Embassy for a response on the application, but on the 22 nd April 2010 having requested that a timescale be given for the outcome of the application none could be given by the Iranian Embassy. By this time TT's Solicitors had become involved and their involvement led to the Defendant writing a letter in response to TT's pre-action protocol letter. In that letter dated the 7 th May 2010 the Defendant observed as follows:

"However on 22 nd April 2010 when contact was successfully made the Iranian Embassy told us that they are still working on this case amongst others and will contact RGDU, UKBA return documentation unit in due course and when pressed for a timescale they would not commit. As you can appreciate we are not in a position to speculate on when the necessary documentation will be made available; this is entirely dependent on the Iranian Embassy."

[70]These proceedings were issued on the 7 th June 2010 and it is clear from Mr Gordon's evidence that there have been continued attempts to pursue the application for an ETD made by TT in this case. TT is still detained. The issues which therefore arise in his case relate to the lawfulness of his continuing detention and the submission which is made on his behalf that from the 22 nd April 2010 that detention has been unlawful.

[71]I accept in relation to this Claimant that there is a high risk of absconding. Indeed when he was granted bail as is apparent from the history which I have set out above, he did indeed abscond and left the jurisdiction travelling to Ireland. He has no known community ties in the UK and there is a clear and obvious risk to which in my judgment significant weight should attach that he may abscond even if made subject to conditions.

[72]The Defendant attaches weight in this case to the risk of reoffending based upon a confession made by TT during the course of an assessment of his future risk of offending completed on the 31 st August 2007 whilst he was serving his sentence of imprisonment. During the interview he suggested that he was involved in the commercial supply of drugs.

[73]In his submissions on behalf of TT Mr Goodman draws attention to the overall conclusions of that exercise. The risk of reconviction is described as being "medium" and the risk of serious harm to others in respect of all potential types of victim is described as "low". In my view it is clear that that admission of previous involvement with drug dealing has been taken into account in this comprehensive and professional assessment of TT's future risk of offending. There is nothing that has changed materially to alter the assessment since it was made in August 2007. Whilst therefore there is a low risk of harm to others there is a medium risk of reoffending which must in my judgment translate into weight being given to the risk of reoffending in relation to this Claimant. Whilst he is not in the category of some Claimants in cases that I have reviewed above who have committed serious violent and sexual offences there is nevertheless given the outcome of the assessment clearly a material risk that he will return to a criminal lifestyle.

[74]In his submissions Dr Staker made clear that he placed no reliance on the failure of the Claimant to cooperate in providing documentation. In the light of the history I have described this is an entirely sensible concession. It is however a concerning feature of this case that in bail summaries presented to the Tribunal in respect of the consideration of bail it has regularly been suggested on behalf of the Defendant that TT was not cooperating. For instance in September 2009 an Immigration Judge relied upon the suggestion made in the bail summary that the Claimant still needed to produce evidence of his identity in the form of his birth certificate, national ID card or driving licence/passport in refusing bail when it is clear from the history that this documentation had been provided years previously. Even as recently as April 2010 in a bail summary it was suggested that the Appellant "refuses to provide any Iranian documentation". In the light of Dr Staker's concession there is no need to dwell further on this point save to say that a failure to cooperate by providing documentation is not material to my decision, and that the bail decisions which were predicated on this inaccurate information can have little influence on my judgment.

[75]The way in which Dr Staker put his case was to rely upon the vacillation of TT during the course of his detention. It was submitted that TT had repeatedly changed his mind in relation to his willingness to return. It was suggested that the number of disclaimers he had had to sign was evidence of this repeated change of heart. I am unconvinced that the disclaimers in themselves provide evidence of that but accept that it is clear that TT did in fact from time to time suggest he was no longer willing to return. This is in my view a factor to be borne in mind but I do not afford it significant weight because for reasons I shall turn to now it does not appear to me that it has played any significant part in either his current detention or his detention since the 22 nd April 2010.

[76]The final issue relates to the prospect of the Iranian Embassy granting an ETD. In that regard Dr Staker relies upon the fact that in late November 2009 the Iranian Embassy agreed that they would issue an ETD. By contrast it is said on behalf of TT that when one examines the statistics and bears in mind that he has had an ETD application before the Iranian Embassy for several years, it is highly implausible to suggest that they will now agree to providing him with an ETD.

[77]In my view the episode in late November and early December 2009 when an ETD was agreed and then that agreement withdrawn is more a source of concern than comfort in relation to the prospects for an ETD being issued in this case. I clarified with Dr Staker in the course of argument that there was no evidence whatsoever to suggest that anything that TT had done had led to the Iranian Embassy's change of mind in respect of his application. Since that time whilst the Iranian Embassy have interviewed TT, it has become plain as recorded on the 22 nd April (and as confirmed in the Defendant's letter of 7 th May 2010) that there can be no timescale provided for when an ETD might be agreed to be issued. This taken against the background of the general information as to what is known in respect of applications for ETDs to the Iranian Embassy suggests strongly to me that by the 22 nd April 2010 a point had been reached whereby it was no longer possible to say that the return of TT would be occurring within a reasonable timescale. I have reached this conclusion acknowledging that the Defendant has regularly chased the progress of TT's application for an ETD. Clearly the failure to establish that there is a reasonable prospect of securing the Claimant's removal within a reasonable time weighs very heavily in favour of his release.

[78]Taking therefore all of these matters together the balance is to my mind clear. In my view it is obvious that given TT's particular history, whilst his detention might initially have been justified on the basis of the risk of absconding and the risk of offending coupled with a reasonable prospect of ETDs being procured, by the time the agreement to issue his ETD had been withdrawn, he had been reinterviewed by the Iranian Embassy and no reasonable timescale for the production of an ETD was evident, the point had been reached where detention could no longer be justified notwithstanding the weight to be attached to the risk of absconding and re-offending in his case. I am therefore satisfied that TT's continuing detention and indeed his detention since the 22 nd April 2010 was unlawful. Confidentiality

[79]During the course of the proceedings I was invited to make an Order pursuant to CPR 31.22(2) in respect of the second witness statement of Mr Gordon and in particular the details of the statistics to which I have alluded above. The rule provides as follows:

"31.22(2) The Court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the Court, or referred to, at a hearing which has been held in public."

My attention was drawn to the case of HRH The Prince of Wales v. Associated Newspapers

[2006] EWHC 11

in which Kitchin J relied upon the approach set out in Lilly Icos v. Pfizer (No 2)

[2002] EWCA Civ 2

where six factors were set out in paragraph 25 of that judgment (quoted by Kitchen J at paragraph 14 of his) which were identified as the considerations which would guide the approach of the application of the rule. Those considerations are firstly, the principle that very good reasons would be required for departing from the normal rule of publicity; secondly, that the Court should take careful account of the role that the document has played or will play in the trial; thirdly, the impact upon issues of confidentiality between the parties and the chilling effect of such an order upon third parties' willingness to be frank; fourthly, the need for reasons to be provided to justify why placing a document in the public domain would cause damage and therefore require confidentiality; fifthly, the need for the Court to have regard to the public interest in avoiding a private or partially private trial and, sixthly, considerations relating to patent actions (which clearly does not apply in the present case).

[80]It was submitted that notwithstanding the fact that the statistics had been referred to in detail in open Court and were provided as part of disclosure by the Defendant without at the point of disclosure any claim being made that the details of the statistics should remain confidential. The Defendant contended there would be harm arising because of Mr Gordon's concern about the impact of the disclosure of the detail of those statistics upon relations with the Iranian Embassy.

[81]In this application the starting point ought to be that the statistics remain in the public domain. I accept that Mr Gordon's witness statement does not contain a simple assertion of the need for confidentiality but does explain his concern that in the light of the delicate nature of the pursuit and obtaining of ETDs, the disclosure of the statistics "could affect the level of cooperation that UKBA currently received from the Iranian authorities". However when assessing the weight to be attached to that contention I have had difficulty in understanding how the statistics themselves might impinge upon that relationship beyond the extensive material which is already in the public domain documenting the issues which have existed and which remain in relation to securing ETDs from the Iranian authorities. In my view bearing in mind the wealth of that other information which is contained in the papers before me, it would require very specific justification in respect of the statistics themselves to overcome the normal rule in relation to disclosed documentation being public. Having considered the matter therefore I am not satisfied that on balance there is sufficient persuasive evidence to suggest that there is a need for an order in respect of confidentiality in relation to those statistics to be made in this case. I have therefore declined to make the order requested. Conclusions

[82]It follows from what I have set out above that in the case of MA there will need to be an assessment of damages in relation to the period of his detention which I have found to be unlawful. I see no reason to reserve that to myself and would propose an order releasing that assessment to a master. In the case of TT following the conclusions I have reached it will be necessary for there to be an Order directing his release upon such conditions as the Defendant considers appropriate and I invite the parties to consider the appropriate form of such an order. Similar to the case of MA in respect of the claim for damages in respect of the period of detention which I have concluded was unlawful I see no reason why that should be reserved to me and consider that it could be released for assessment to a master.

(1) MA (2) TT v Secretary of State for the Home Department [2010] EWHC 2350 (Admin)

Cited in 4 later judgments