Harrak, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2621 (Admin)

Case No CO/13408/2009[2010] EWHC 2621 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 23 March 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE KING
Between
THE QUEEN ON THE APPLICATION OF SAID HARRAKClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MS SONALI NAIK (instructed by Bindmans) appeared for ClaimantMS LISA BUSCH (instructed by The Treasury Solicitor) appeared for Defendant
Judgment
[1]This is a claim by judicial review to challenge the legality of the claimant's detention by the Secretary of State from 7 August 2006 to 1 December 2009, a period just short of 40 months. The Secretary of State had on 4 August 2006 given notice of a decision to make a deportation order against the claimant, and following the completion of a custodial sentence on 7 August 2006, the claimant was detained thereafter, pursuant, purportedly, to the defendant's immigration powers under the Immigration Act 1971. On 30 July 2007 the defendant signed and served a deportation order. The claimant’s subsequent detention was pursuant to the defendant’s powers following the making of that order.

The Statutory Framework

[2]The statutory provisions are well known. Under section 3(5) of the Immigration Act 1971:
"A person who is not a British citizen shall be liable to deportation from the United Kingdom -- (b) if the Secretary of State deems his deportation to be conducive to the public good..."
And then under section 5(1):
"Where a person is under section 3(5) [...] liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom..."
Under schedule 3 to the Act, paragraph 2(2):
"Where notice has been given to a person in accordance with regulations [...] of a decision to make a deportation order against him, [...] he may be detained under the authority of the Secretary of State pending the making of the deportation order."
I pause there. It is common ground that "pending" means “until” the making of a deportation order. Then under paragraph 2(3) of schedule 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..."
The Applicable Principles[3]I turn to the principles applicable to the legality of a period of detention purportedly authorised by the exercise of these statutory powers. Well-known authorities are those of Woolf J in Hardial Singh [1984] 1 WLR 704 and the judgments of the Court of Appeal in R (I) v SSHD [2002] EWCA Civ 888, and R (A) v SSHD [2007] EWCA Civ 804. The principles were set out by Woolf J as follows (p.706):
"7. Although the power which is given to the Secretary of State in paragraph 2 [of schedule 3 to the 1971 Act] to detain individuals is not 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 implicitly 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. 8. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time..."
These principles were confirmed by the Court of Appeal decision in (I). In his judgment, Dyson LJ, as he then was, summarised them thus at paragraph 46: "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] 1 WLR 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 [1997] AC 97, 111A-D [...]. In my judgment, [counsel for the Secretary of State] 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 reasonable diligence and expedition to effect removal.”[4]A helpful discussion of principle, for present purposes, is also to be found in (A) in the judgment of Toulson LJ at paragraphs 43 to 62.[5]The principles which emerge from those authorities appear to be as follows. First, the power to detain is given to enable the machinery of deportation to be carried out. The power can only be used in order to detain for the purpose of effecting a deportation and for no other purpose. I pause to say it is not suggested in this case that there was any misuse of power for an improper purpose. Secondly, and more importantly for present purposes, the power to detain is limited to a period which is reasonably necessary for that purpose, described by Dyson LJ in the second of his four principles laid out in paragraph 41, as:
"The deportee may only be detained for a period that is reasonable in all the circumstances."
There is implicit in that principle that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.

(I) :

"The Secretary of State should act with reasonable diligence and expedition to effect removal."
[6]What is a reasonable period will depend on the circumstances of any particular case. Dyson LJ helpfully in paragraph 46 of his judgment said:
"It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation [...] But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
[7]As to the relevance of the factors of the risk of absconsion and the danger, if released, of the detainee committing further criminal offences, to the assessment of the reasonableness of any period of detention, further guidance is found in the judgment of Toulson LJ in (A) to which I have already referred, at paragraph 45:
"...a pertinent question [...] is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty."
At paragraph 54, referable not merely to the risk of absconding but referable to any refusal to accept voluntary repatriation, Toulson LJ said this:
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, these are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."
And at paragraph 55, referable again to the risk of offending:
"A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences [...] The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
[8]A further gloss upon the principle that the detainee may only be detained for a reasonable period was expressed by Woolf J to this effect:
"...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 would be wrong for the Secretary of State to seek to exercise his power of detention."
Dyson LJ in (I) made this his principle(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..."
To which I would add, that the Secretary of State should not seek to maintain the power of detention, even if originally it had been lawfully exercised.

(I) :

"...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."
[9]In R (FR (Iran)) v SSHD [2009] EWHC 2094 (Admin), Foskett J (at para.71) expressed the basic test on the legality of detention in these circumstances as:
"...whether the Secretary of State has proved on the balance of probabilities that there is a reasonable prospect of securing the Claimant's removal within a reasonable time..."
In other words, there has to be a realistic prospect of removal within a reasonable time. There is probably no difference between the formula "realistic prospect" or "reasonable prospect".[10]I also record that it is established that it is for the court and not the Secretary of State to determine "the legal boundaries of administrative detention". Those are the words of Toulson LJ in (A) at paragraph 62. In other words, it is not for the court simply to apply the test of Wednesbury reasonableness to the decision of the Secretary of State either to exercise the power of detention or to continue to detain pursuant to the power. Whether in fact, to use the test of Foskett J, there was at any particular time during the detention a reasonable prospect of securing the claimant's removal within a reasonable period of time, is a question which the court has to determine, bearing in mind that we are dealing here with the liberty of the individual and that the burden is on the Secretary of State to prove the lawfulness of the continuing detention. As Toulson LJ said (paragraph 62):
"There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act……."
[11]Before I outline the basic chronology in this case, I should observe that at the heart of the submission made on behalf of the Secretary of State to justify the continuing lawfulness of the detention of the claimant to the date when he was finally released (following a decision of this court on the 27 November 2009 to grant him bail)is an emphasis upon the factor of the non-cooperation of the claimant in the documentation process, and other associated processes necessary, the Secretary of State would say, to effect his removal to Morocco. It is said that the sole barrier in this case to the removal of the claimant, who has yet to be removed, has been the need to obtain and the failure to obtain an Emergency Travel Document (ETD) for him from the Moroccan authorities. The observation I make at the outset is this: of course the non-cooperation of the claimant is a very important factor which has to be put in the balance of those factors identified by Dyson LJ in (I), but the factor of length of the period of detention will in my judgment, as it increases, always gain in its strength of relevance. There must come a time ultimately, which is not necessarily this case, that even if the detained person steadfastly refuses to cooperate, the Secretary of State can no longer establish that there is a reasonable prospect of securing his removal within a reasonable period of time and even though this has come about almost entirely because of the behaviour of the detainee. It is not perhaps a palatable conclusion ultimately to have to reach on any given facts, but there could be a case, in my judgment, where time has just gone on too long to justify the continuing detention, albeit it can be placed solely at the door of the detained person himself, that the necessary steps to effect deportation have not come about.

The Background Facts

[12]Let me go to the essential facts of this case. The claimant was born in Morocco 22 February 1965. He entered the United Kingdom on 3 September 1986 aged 21 as a visitor. He was granted leave to enter for one month which was further extended until 17 November 1986, but a further extension was refused in March 1987. From that date the claimant became an overstayer. In June 1995 he was granted leave to remain as a spouse on the basis of a marriage in 1992 to the mother of his son, who I understand was a British citizen. The son had been born in November 1990. That marriage in fact broke down and the claimant lost contact with his son. On 11 February 1997, the claimant was granted indefinite leave to remain. Thereafter, the claimant set about committing a series of criminal offences which led to a number of convictions, and ultimately led to the Secretary of State making the decision to deport on 4 August 2006, just three days before the claimant was due to complete his last custodial sentence on 7 August 2006. Those offences were many. They amount to some 42 offences resulting in some 26 convictions between October 1997 and April 2006. They resulted in a total period of some 23 months spent in custody. They were not, however, the most serious of offences for the most part. The majority were theft by shoplifting, although it is right to record that there was one offence committed in 2004 of possessing a bladed article in a public place. The offences, however, did include offences of escaping from custody or failing to report to custody. They were all committed, it is clear, in the context of a drug habit, and the theft offences were committed to fund that habit. I am quite satisfied on the evidence before me that the escape from custody or failing to report to custody all flowed from a drug problem. I might fast forward for present purposes to say that by January 2007 when the appeal against the notice of intention to deport was heard, that it was accepted by the AIT that the claimant’s drug problem was under control, although it was queried whether this control would be permanent. But certainly, if I fast forward to 2009, there is no suggestion that as at that date the claimant was in any way affected by a drug problem or habit.[13]But let me return to the chronology. The final series of offences prior to his being made the subject of the notice of intention to make a deportation order, were in 2006. In February 2006 he was arrested for theft and breach of an Anti-Social Behaviour Order (‘ASBO’). He subsequently escaped from a hospital while in custody, and on 7 March 2006 he was re-arrested and held in custody, in prison. On 14 March 2006 he was convicted of two offences of theft, breach of the ASBO and escaping lawful custody. On 24 April 2006 he was sentenced to a total of 10 months' imprisonment. There was, however, no recommendation for deportation by the court. The pre-sentence report assessed him as being a medium risk of harm and a high risk of re-offending until he addressed his drug misuse. As I have indicated, he was due to complete his custodial sentence on 7 August 2006, and it was three days before then that the defendant signed the notice of decision to make the deportation order, and that thereafter the claimant was detained purportedly pursuant to the defendant's immigration powers which I have already set out.

The Claimant’s non-cooperation before December 2008

[14]The claimant's appeal against the deportation notice was dismissed by the Asylum and Immigration Tribunal on 16 January 2007 and appeal rights were exhausted by 19 January 2007. The claimant was then in administrative detention from 7 August 2006, all the way through 2007, all the way through 2008, and for most of 2009. It might be thought that the Secretary of State would have a difficult task to satisfy a court that on the balance of probabilities there was throughout that period a reasonable prospect of securing the claimant's removal within a reasonable period of time. As I have indicated, the total period was just under 40 months. However, it is common ground between the parties that throughout the remainder of 2007, from the date of the dismissal of his appeal, and the whole of 2008, up until 4 December 2008, the claimant steadfastly refused to comply with the documentation process which was required to obtain an Emergency Travel Document from the Moroccan authorities.[15]The claimant's case has always been that he was born in Morocco and is a Moroccan citizen. In 1994, a letter dated 19 January 1994 was sent by the then solicitors for the claimant to the Secretary of State purportedly enclosing with that letter an original marriage certificate, an original birth certificate, and a passport. None of those documents however appear to have been in the possession of the Secretary of State during any part of the period with which this claim is concerned, in particular in 2007, 2008, and 2009. The Secretary of State was therefore, understandably, dependent upon information being given by the claimant in order to further the application for an ETD. The material before me shows that in April, May and June 2007 the claimant refused to cooperate with this documentation process and that this went on well into 2008.[16]Thus, on 25 April 2007, on 11 June 2007, and again on 3 January 2008, the claimant when interviewed steadfastly declined to answer any questions about his nationality. On 11 February 2008 a letter was written to him, then in detention at HMP Highpoint, in which this failure to cooperate is drawn to his attention:
"I am writing this letter in order to keep you updated regarding your case. As you will be aware, an IS151F letter was sent to you today, detailing the current status of your case. I am aware that you have failed to cooperate with the documentation process so far. You were interviewed on 25 April 2007, 11 June 2007 and 20 June 2007. A further interview took place on 3 January 2008. During these interviews, you failed to provide sufficient information that would satisfy the authorities that you are a Moroccan national. As you are aware, you have no legal entitlement to remain in the United Kingdom. A deportation Order was served on you on 30 July 2007. Your removal from the United Kingdom will continue to be sought. It is important that you are aware that your behaviour in regards to the documentation process is seriously impeding any chances of being released from detention in the future. We are continuing to make arrangements to obtain a travel document for your removal from the United Kingdom. However this is taking longer than we would like because you have failed to cooperate with interviews to gain information for the purposes of documentation. If you wish to assist us in progressing your case, you are advised to speak to one of the Officers in your prison establishment. It is also important to reiterate the fact that your continued failure to cooperate with the ETD process is a significant factor in the decision to maintain detention. You should also be aware that case-law in this area has made it clear that continued failure to cooperate will remain a significant factor in deciding whether to maintain detention or grant bail in the future. While decisions will be considered on the basis of all the available factors, you should note that this may result in a prolonged period of detention. In addition the courts have ruled that there is an onus on you to leave the country once your appeal rights have been exhausted. You are also advised that you remain eligible to apply for the Facilitated Return Scheme (FRS). This is a voluntary scheme which is designed to assist you in returning home and re-integrating into your home country. If you agree to return home under this scheme you will receive £46 in cash on leaving the United Kingdom as well as being eligible for up to £500 to assist you in re-integrating into your home country. This could be used for example to set up a business, further your education or assist with housing. If you are interested in this scheme, you are encouraged to contact an officer or someone from immigration."
[17]It is convenient if I also record that a letter with a similar message was written to him on 12 February 2009, although the factual basis for the asserted refusal to cooperate is challenged by the claimant. It refers to a refusal:
"...to cooperate with the completion of bio data forms on 11 February 2009 until you have spoken with an officer at FRS."
It continues:
"As I discussed with you on the telephone, you are more likely to be accepted onto the FRS scheme if you are seen to be complying with the documentation process as a travel document will be required for your removal."
I shall return to the issue of what was happening in February 2009. The FRS is a reference to a Facilitated Removal Scheme. For present purposes, I am simply recording that the Secretary of State did draw to the attention of the claimant by letter, both in February 2008 and 2009, the potential consequences of his non-cooperation on the prolongation of his detention.[18]A curious feature in this case is that in May 2008 there is a record in a series of documents under the general heading of the GCID, the General Case Information Database, of a review of the case in which this appears:
"e-mail sent to ccd ops [Criminal Casework Directorate operations] croydon to see if there is any progress with S35 prosecutions yet."
That is a reference to potential proceedings under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, whereby a sanction can be imposed if a person fails to carry out a requirement of the Secretary of State to take specified action which will or may enable a travel document to be obtained, and where the possession of the travel document will facilitate the person's deportation or removal. But the record continues in these terms:
"in addition etd [Emergency Travel Document] app forms completed using info on file. Basic details can be filled i[n]. It is worth submitting an etd app based on this information as it may take 12mths w/o [without] supporting evidence IF MAR emb accept the incomplete application so the sooner we submit it the better (in my opinion this should have been attempted after the first failed etd i/w [interview] in april 2007). Obviously if the MAR auths [authorities] will not accept the etd app then at least we have attempted it. "we have subs [submitted] old ppt [passport] number so this is something that the MAR [Moroccan] auths [authorities] should be able to check. Copy landing card to be submitted with the etd app[lication]."
But then this follows:
"we will need photos and f'prints in order to submit the etd app[lication]."
[19]It appears that on 30 September 2008 the defendant, through officers, completed an ETD application to the Moroccan Embassy using copy fingerprints. That application was not sent to the Moroccan Embassy. It was sent internally within the defendant’s department to the RGDU, the Returns Group Documentation Unit. On 13 October 2008 that application was rejected not by the Moroccan Embassy, to whom it was never sent, but by the internal body of the defendant, the RGDU, on the grounds that originals were required.[20]I should add that throughout 2007 and 2008 there were periodic detention reviews, the product of which are within the papers before me. I record that there were such reviews in April 2007, July 2007, on 11 July 2007, 1 September 2007, 1 October 2007, 1 November 2007, 3 December 2007, 14 January 2008, 22 February 2008, 18 April 2008, 9 April 2008, 5 June 2008, 8 July 2008, 4 August 2008, 5 September 2008, 7 October 2008 and 7 November 2008. I should also record that back on 12 August 2007, following the signing of the deportation order, the claimant lodged an appeal to the European Court of Human Rights in person. It is common ground that this in itself was no barrier to removal. This is recorded in the GCID record of 26 February 2008, which indicated it was no barrier as no "rule 39 application being made."[21]A GCID record of 30 October 2008 indicates a recommendation that the claimant should be removed from Highpoint Prison to an IRC, an Immigration Removal Centre, or some other prison as "he is too comfy in Highpoint", and that it was hoped that if he were transferred he would comply with the documentation process. The Governor of Highpoint indicated that fingerprints could not be obtained by force at that establishment. So it was on 19 November 2008 that the claimant was removed from that prison to IRC Dover.

Events since December 2008 to the Submission of the ETD Application on 21 January 2009

[22]That brings me to 4 December 2008. By this time, some two years and four months had expired since the claimant had been put into administrative detention. On that date the defendant authorised the taking of fingerprints by force. Thereafter, the claimant did begin to cooperate. The extent of his cooperation is a matter of factual dispute between the parties, but it is not in dispute that the claimant gave authority for fingerprints to be taken and on 10 December 2008 cooperated with the fingerprinting process. The defendant then set about to complete and send to the Moroccan Embassy an application for an Emergency Travel Document. It was sent to the Moroccan Embassy on 21 January 2009. The reason it took from 10 December 2008 to 21 January 2009 appears to be a combination of the use of the wrong form and other administrative difficulties.[23]The defendant has served a witness statement of Mr Lowey, a caseworker of the Criminal Casework Directorate within the United Kingdom Border Agency Judicial Review Team. He makes his statement by reference to the records kept by the defendant in order to provide specific details of the steps taken by the defendant to secure an Emergency Travel Document for the claimant's removal to Morocco. It also deals with the decisions taken to detain him. I refer to the history given in Mr Lowry’s statement for the purposes of describing the steps taken between 15 December 2008 and the sending of the application form to the Moroccan Embassy on 21 January 2009. I highlight that on 30 December 2008 it appears that the claimant told the officers of the defendant that he, the claimant, had no documentation proving nationality except for the copy passport on the existing Home Office application which was not in his possession. The history according to Mr Lowey is this:
"15 December 2008: Emergency Travel Document application submitted to RGDU. 29 December 2008: Claimant chased progress on his case. [...] 30 December 2008: Letter served on the Claimant informing him of progress. The Claimant spoke to a member of the UKBA and advised that he was willing to comply with the documentation process and stated that the UKBA held a copy of his passport in relation to an old marriage application. A subsequent search of the Claimant's Home Office file failed to locate a copy of his passport. 31 December 2008: RGDU advised that they could not accept the Emergency Travel Document application as it was completed on an old form and that a new form would need to be completed. 6 January 2009: Detention review completed and monthly progress report faxed to the prison to serve on the Claimant. 8 January 2009: Claimant's brother's Home Office file was requested in order to search for any information or documents that could be used as evidence of nationality. A DVLA check was also completed on the Claimant but no trace of this was found. A request was made to obtain the documents the Claimant had supplied when applying for a National Insurance number, but UKBA were later informed that the supporting documents were destroyed after 6 years."
Then:
"21 January 2009: Application for Emergency Travel Document submitted to Moroccan Embassy."

Steps taken by the Defendant to pursue the ETD Application of January 2009

[24]I now rehearse the steps taken by the Secretary of State to pursue that application for an Emergency Travel Document, remembering always the obligation on the Secretary of State to act with reasonable diligence and expedition to effect removal, and remembering as part of the factors material to the issue of how long it is reasonable to detain a person pending deportation, not only the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation but the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles.[25]As regards the pursuit of that application to the Moroccan Embassy, the Secretary of State in my judgment took remarkably few steps, none of which could qualify as being diligent or speedy.[26]It appears that following the application being submitted on 21 January 2009 the first time the defendant’s RGD Unit "chased the Moroccan Embassy for progress of the application" was on 6 April 2009, i.e. some 10 or 11 weeks later. On the material before me, no response was received. Two months then passed. On 18 June 2009 a fax was sent to the Moroccan Embassy seeking a progress report. Clearly no immediate response was received to that. One finds in the GCID Record Sheets in July 2009 the CCD within the defendant requesting updates of progress on ETD. Several phone calls were made to the Embassy and faxes were sent but apparently no response was received. One reads, for example, on page 291 of the sheets:
"[Telephone call] from CCD requesting an update on the progress of the ETD application. After several failed attempts to contact the MAR Consulate by telephone, I have sent a fax requesting an update."
Then it says:
"Have we heard from the MAR Consulate?"
And further down one reads:
"I have tried calling the Consulate several times on both numbers made available to RGDU. I have sent a fax requesting an update."
As far as July is concerned, that was the sum total of what the defendant did. August was a non-month for these purposes: the Moroccan Embassy was closed from early August to 7 September 2009, although on 28 August 2009 there was an email from CCD where the CTU requested the RGDU to chase progress with the Moroccan Embassy. Finally, on 8 September 2009, which is just under eight months after the application was submitted, there was an oral response from the Moroccan Embassy advising that:
"Checks are still ongoing."
[27]This appears to have been the state of play as regards the diligence with which the Secretary of State was pursuing the ETD application when the matter came before the court on 27 November 2009 and the claimant was granted bail. This took effect on 1 December 2009.[28]Mr Lowey's schedule records that on 24 November 2009 the RGDU called the Moroccan Embassy and "UKBA informed that the case will be looked in to." On 26 November 2009, which is now some ten months after the application submitted, a fax was sent to the Moroccan Embassy requesting an update on the case. On 27 November 2009, the date of the hearing before the court, the RGDU received an update from the Embassy in which the official stated they were yet to receive a response from the authorities in Rabat. One then goes forward to February 2010, after the release from detention, when another fax was sent to the Moroccan Embassy requesting an update on the outstanding application.[29]Finally, on 11 March 2010 the UKBA sent an email to the RGDU submission inbox to request “that an interview with the Moroccan Embassy is conducted to assist with the outstanding application.” The need for this process of interview with the Embassy to assist with the application is explained in paragraph 12 of the statement of Mr Lowey, as follows:
"The steps taken to gain a travel document to facilitate the Claimant's removal are set out in the above chronology. I am informed by the case owner with day to day conduct of progressing the Claimant's removal that the Claimant is to be put forward for a telephone interview with the Moroccan Embassy so that they can be satisfied of his nationality before issuing an Emergency Travel Document. It is estimated that upon successfully contacting the Moroccan Embassy it could take a week for the interview to be arranged and conducted. The Moroccan Embassy will ask questions testing the Claimant's knowledge of Morocco. If the interview results in the Moroccan Embassy refusing to accept the Claimant as a national, then the case will be referred for a language analysis in order to ascertain where the Claimant originates. The case owner will also refer the case to the UKBA's Country Targeting Unit who have experience of handling cases where nationality is disputed and proving difficult to document. They will raise the case with the Foreign and Commonwealth Office to contact the Moroccan Embassy about the outstanding Emergency Travel Document application."
[30]I should observe that that paragraph discloses a statement of intent on the part of the defendant. The paragraph has within it the premise that nothing can happen as regards the arranging of such interview until "upon successfully contacting the Moroccan Embassy". The history of this case shows how one would have to be alive to the difficulties in contacting the Moroccan Embassy. It is also to be observed that the deficiencies in the documentation which was being presented to the Moroccan Embassy in the application of 21 January 2009 have always been known to the defendant. But there is nothing in the material before me to suggest that prior to March 2010 anybody within the defendant’s department applied his mind to the need, in order to support an application where question marks might be raised by the Moroccan authorities of the nationality of the claimant, to arrange the sort of telephone interview which is contemplated in this statement of March 2010.

Non-cooperation of Claimant since Jauary 2009

[31]I do accept, however, that the deficiencies in the information and documentation included in the application of 21 January 2009 sent to the Embassy were to a large degree due to the failure of the claimant himself to cooperate over the previous years in providing information. The claimant had by 21 January 2009 undoubtedly provided fingerprints, which might or might not have been sufficient or necessary. But as regards bio-data information of the sort set out in the form attached to the application, it is clear that many details were missing under the headings, for example, of “last employer in country of origin”, “employment details”, “schools attended”, “name and address of family doctor”, “places of worship”, “name and address of local police stations and local hospitals”. Details were given of a passport number and a place of issue in Tangier on a certain date and a validity date given, and further details of father's name and address and details of the brother. It also recorded, however, under the heading of: "I certify the above details are fully understood and to the best of my knowledge are correct" (Quotation not checked) That “Mr Harrak will not comply”.[32]The history relied on by the Secretary of State to justify continuing detention after the fingerprints were taken in December 2008 and the ETD form was completed and sent off on 21 January 2009 in part includes the non-cooperation of the claimant in not providing the further information which could have supplemented the lacunas in that which was sent on 21 January.[33]On this issue of non-cooperation since that date the GCID records show as follows. First on 22 January 2009, the record queries the purpose of any further interview with the claimant to provide any further documentary evidence to prove nationality. The question is put: "In view of ETDA [...] having already been sent to the Moroccan Embassy, are f/prints & photos still necessary?" although the point now being made by the Secretary of State is that it was always going to assist the application if further information was obtained.[34]There is in then a dispute as to the events of late January 2009 up to 17 February 2009, referable to the alleged non-cooperation of the claimant in failing to supply a bio-data form with information filled out, and to supply that which on the face of the record he was saying he had access to, namely a birth certificate. I do not read out all the entries in the record, but certainly on 30 January 2009 and on 3 February 2009 there are references to visits being made to the claimant to conduct a bio-data interview and his failure to attend, notwithstanding he was being paged many times. This of course was the origins of a letter to which I have already referred to sent to him on 12 February 2009,which letter also refers to a failure to cooperate on 11 February 2009. It seems however to have been acknowledged by the defendant in a record of 5 February 2009 that the pager of the claimant was in fact broken, and he was advised to disregard a letter written before this was discovered. The record for 5 February 2009 records that the claimant stated he was willing to comply with the travel document process, that he had had enough of detention, and that his intention was to apply for the Facilitated Return Scheme. He confirmed he would be happy to return to Morocco if accepted for Facilitated Return Scheme. He was issued with an information leaflet. The record says that the claimant stated that if he were to be refused FRS, he would supply bio-data as requested and supply supporting evidence of nationality. He stated he had a birth certificate which he was in the process of obtaining.[35]Then on 11 February 2009, there is a record of an event which the claimant accepts occurred, namely that he refused to comply with the bio-data interview until he had spoken with the FRS officer. Arrangements apparently were made for him to speak to somebody. One sees at pages 287 to 289 records which confirm that history. On 12 February 2009, an officer in the FRS team, according to Mr Lowey, was contacted regarding the claimant's FRS application. They had not received an application from the claimant. It was agreed a referral would be made and the claimant would be considered for return under FRS. It was noted by the FRS team that the claimant had refused to comply with bio-data forms and been advised this could be an obstacle for removal, and informed that it was in his best interests to complete the forms. This is a reference again to that letter of 12 February 2009, from the officer within the CCD which reads: "Dear Mr Harrak. "As per telephone call earlier today, I can confirm that after speaking with the FRS team, they are now considering your case and whether you would be suitable for the FRS scheme. It is noted that you have refused to cooperate with the completion of bio data forms on 11 February 2009 until you have spoken with an officer at FRS. As I discussed with you on the telephone, you are more likely to be accepted onto the FRS scheme if you are seen to be complying with the documentation process as a travel document will be required for your removal. I urge you to complete the attached bio data forms and provide documentary evidence to prove your identity like a passport, birth certificate or identity card and forward these to me as soon as possible. The FRS team have advised that they are going to review your case and decide whether you are a suitable candidate for the scheme within approximately one week. If nothing has been heard, I will chase a decision from them next week on your behalf, however in the meantime please feel free to contact the FRS team or myself for an update and I will do all I can to assist."[36]On 17 February 2009, it is recorded that the claimant was visited at Dover IRC. He stated he was not willing to complete any paperwork until he had spoken to a member of the FRS team who was visiting him on 20 February 2009. It was arranged that the FRS team member would complete the bio-data application with the claimant during that visit. It would not appear that actually was done, although there is a record at page 289 where a telephone call is received from Brian, the FRS representative, advising that he had spoken to the claimant and that he would complete the bio-data with the claimant on Friday:
"The subject advised Brian that he hopes to have his Birth Certificate in his possession by Friday."
[37]As a matter of fact, it appears that the claimant never produced any birth certificate, although the instructions of counsel on his behalf are that this was because he could not obtain it because he had to get it through Morocco. Firstly, it does not appear that any up-to-date bio-data form was ever completed, although it should be said that at paragraph 6 of a witness statement of the claimant dated 27 November 2009, he says:
"I have not been asked to complete a bio-data form since February 2009 which I discussed above. In any event it is not clear to me what the purpose of the form is nor have I been told this. I am not aware that it necessarily is relevant to the issue of my emergency travel document by the Moroccan embassy. If it were then no doubt I would have been asked to complete it again since then."
The FRS 38. The claimant did receive on 18 March 2009 a letter informing him that it had been decided to allow his return to Morocco under the Facilitated Return Scheme. It is in these terms:
"Dear Mr Harrak. You have requested that you be allowed to leave the United Kingdom voluntarily. After considering the circumstances of your case it has been decided to allow your return to Morocco under the Facilitated Return Scheme. You will not be deported but the Home Office will consider whether you should be excluded from the United Kingdom. Please find a disclaimer enclosed for you to sign and complete and return it to the above fax number."
This event is accurately described in Mr Lowey's chronology as being:
"Claimant's application for FRS approved."
[39]As regards the FRS, the next event of any note is on 2 October 2009 when the claimant was informed by letter that his application for the Facilitated Return Scheme had been considered but in fact was now refused: “Owing to your failure to comply with the ETD process by supplying FRS with supporting evidence for your application despite numerous requests to do so." That was the content of a box marked with an X. This decision in October 2009 to reject his FRS application is one which the claimant says in his witness statement that he did not understand as he thought his case worker would have provided all the information that was now needed. I am bound to say there is no material before me to explain why on 18 March 2009, in the circumstances in which the defendant was aware of the failure now relied upon, to provide further material through completing the bio-data form and the birth certificate and so forth, the Secretary of State was prepared to allow the application to be part of the FRS, and then on 2 October 2009 to say that it was now refused. The Legality of the Detention[40]I turn to consider in the light of this history whether the defendant has established on the balance of probabilities that there was throughout the period of the claimant’s detention i.e. up until the 1st of December 2009 when he was released, a reasonable prospect of the claimant being removed within a reasonable time. The Claimant before me makes no challenge to the legality of the detention up until the claimant’s finger prints were obtained in December 2008 enabling the application for the ETD to be submitted to the Moroccan authorities on 21 January 2009 .However in making that concession Ms Naik on behalf of the Claimant rightly in my judgment submits that the length of the detention prior to that date – a period in excess 28 months - cannot be ignored when considering the reasonableness of the period of detention after that date and the question whether after that date the defendant was seeking to effect the removal with all reasonable diligence and expedition . See again the exposition of principle by Dyson LJ in (I).[41]Ms Busch on behalf of the defendant submits that given the history of non – cooperation with the ETD documentation process prior to December 2008 and that which continued after the submission of the ETD application in January 2009, as a matter of principle any period of detention of up to 12 months after the date of the submission of the application (21 January 2009) should be regarded as reasonable having regard to the factors identified by Dyson LJ in (I) and the only issue is whether the defendant has satisfied the court that there was throughout the period up until release ( which was less than 12 months from the January date) a reasonable prospect of securing the claimant’s removal within that 12 month time frame.[42]The origins of this 12 month starting point lies in what is said in the records of periodic reviews of the claimant’s detention to be the guidance of the defendant’s RGDU unit as to the time it can take a Moroccan ETD to be obtained. For present purposes I refer to the reviews carried out since the fingerprints were obtained and the ETD form completed, namely those of the 6th of January 2009 onwards. Such reviews were carried out thereafter at monthly intervals save for a four month gap between that of the 5th of March 2009 and that of the 23rd of July 2009. Immediately prior to the successful bail application of the 27th of November 2009 there had been a review of the 26th of November. In each of these reviews there is recorded under the heading “Likelihood of removal within a reasonable time scale (outline details of barriers to removal, including availability of travel documents and likely time to resolve these)” the following extract which ends with the “suggestion” that the “subject may be documented within a reasonable timeframe”. For convenience I take the following from the Review of the 17th of September 2009 : “ the only barrier to his removal is the lack of travel document which was submitted to the Kingdom of Morocco on 21 January 2009. RGDU guidelines state that Moroccan ETD can take between 6 and 12 months to obtain and, with CTU having forwarded the subject’s case history to the RLU and requested RGDU make regular enquires with officials at the Moroccan Embassy. It is suggested that the subject may be documented within a reasonable timeframe”.[43]However there is also evidence that in this particular case the defendant was aware as from the 23rd of February 2009 based on RGDU advice, that “without supporting documents” it might take up to 24 months for the ETD to be obtained. This advice is recorded in the Review record of the 5th of March 2009 in the following terms :
“ On 23 February 2009 RGDU advised that they are still waiting for a response from the Moroccan Embassy however without any supporting documents it may take up to 24 months for ETD whereas with supporting evidence it could only take up to 6 months”
[44]Although the defendant says this reference to 24 months may well be a mistake, there is little to support such a submission not least because this advice as to the 24 month period is referred to in all the detention reviews thereafter including that of the 26 of November and notwithstanding that Review repeats the contradictory stance taken by the defendant’s officials that the applicable time frame for the obtaining of an ETD was that of 6 to 12 months:“ the only barrier to his removal is obtaining an ETD. There has been a great deal of effort put into this case in order to obtain an ETD with the application having been made in January 2009. A Moroccan ETD can take between 6 and 12 months to obtain. CTU have forwarded the subject’s case history to the RLU and requested RGDU make regular enquiries with officials at the Moroccan Embassy. It is therefore hoped that the subject may be documented within a reasonable timeframe“[45]The view I have come to is that in the circumstances of this case to regard any period of detention of up to 12 months after the completion of the ETD application in December 2008 as reasonable for the purposes of the Hardial Singh principles because of the non- cooperation of the claimant prior to that date, is too simplistic.[46]I find that it must have been clear to the defendant from 23rd February 2009 onwards that the application might take up to 24 months for the necessary documentation and hence the claimant’s removal, to come to fruition . But by this date the claimant had already been in detention for a very long time, namely a period of about 2 and a half years. It was beholden in these circumstances for the defendant’s officials to be particularly diligent in keeping in contact with the Embassy to check on the progress of the application and to take expeditious steps to remedy any known deficiencies in the documentation accompanying the ETD application ,by for example seeking to arrange the Embassy interview which appears to have been contemplated for the first time only in March 2010 or thereabouts ,if the defendant was to continue from that date to be able to assert that removal within a reasonable time was a realistic or reasonable prospect . I have already explained my conclusion in this case that such diligence was not shown. As at the date of the Review of the 26 of November very little had been done to further enquiries with the Embassy. At the highest there was receipt of one substantive response from the Embassy of the 8th of September that “checks are ongoing”. There was nothing of substance prior to that date and no evidence of anything of substance done after that date. The evidence suggests that no steps were ever put into place by the defendant to ensure expeditions and effective monitoring of the application.[47]The conclusion I have come to is that in these circumstances the defendant has been unable to establish that as from the 23rd of February 2009 there was ever a reasonable prospect of removing the claimant within a reasonable time. Given the length of the detention prior to that date , a far more predictable date within a much shorter time frame than “ anything between 6 and 12 months “ or “ up to 24 months “ was required to be established ,than that which the defendant in reality could point to in this case . Moreover on the evidence to which I have already referred the defendant was from that date in continuing breach of the obligation to act with reasonable diligence and expedition to effect removal.[48]I am of course conscious of the various different factors which Dyson LJ identified in (I) which may lead to a longer period of detention be regarded as reasonable than might otherwise be the case,but given the length of detention already undergone by the claimant prior to the submission of his ETD application ,there would in my judgment have to have been factors of considerable force to justify the continuing detention after the 23rd of February 2009. In my judgment no such factors of sufficient weight have been identified by the defendant on the evidence before me.[49]In submissions to this court the defendant through counsel seeks in effect to rely upon the factors of non-cooperation , the risk of absconding and the risk of re-offending if released ,viz :
"The Defendant's on-going decision to detain the Defendant was made on the basis that the circumstances which warranted his initial period of detention had not significantly changed. He had and has an extensive criminal record, including offences of escaping from and failing to report to custody, and he has consistently refused to comply with the documentation and removals process."
[50]These factors are also reflected in the matters relied upon to justify continuing detention in the detention review of 26 November 2009 :
"I have considered this case in favour of presumption of release and consider it inappropriate at this time. The subject has refused to cooperate with providing information and supporting documents for documentation purposes and failed to show for his documentation interview. The subject is aware of our intention to deport him from the UK and has been served with a signed deportation order to this effect. He has also exhausted all of his appeal rights and it is therefore considered unlikely that he would comply with any conditions of release at this stage. The subject's immigration history indicates that he is unlikely to comply with any conditions placed upon him if released at this stage. Given his extensive criminal history; dating from 1988 a total of 26 convictions from 42 offences; there is a strong risk of re-offending which would jeopardise public safety and the fact that he has previously failed to report when required to do so suggests a strong risk of absconding. It is also noted on the special conditions screen to have escaped from custody while at North Middlesex Hospital on 20 February 2006. The subject's history of non-compliance, escape and prolific re-offending suggest that the risk of absconding is unacceptably [sic] at this late stage of the case, where appeal rights are exhausted with no outstanding applications. I have assessed this case in accordance with the current criteria and have concluded that for the reasons above Mr Harrak is not suitable for release even under conditions of rigorous contact management. I propose that continued detention is justified in order to address the risk of absconding and re-offending, factors which outweigh the presumption of liberty. I therefore propose to maintain UKBA detention until this subject can be removed from the United Kingdom or at least until the outcome of his ETD application, which RGDU continue to chase, is known."
They are summarised in this further paragraph set out in the review: "Mr Harrak has a long history of offences and failure to comply with UKBA. He poses a high risk of re-offending and absconding if released under rigorous contact management. He also poses a risk of harm to the public.”[51]However in my judgment the factor of non-cooperation in reality exhausted itself after that date in February 2009. I agree with counsel for the claimant that it is not clear that any failure to complete the bio data form after that date can be fairly regarded as a significant obstacle to the completion of the documentation process by the Moroccan authorities not least –as already shown above – its lack was not an obstacle to the claimant being originally accepted on the FRS in March 2009 and in any event it was on the evidence always open to the defendant to remedy any such deficiency by the arranging of an Embassy interview . Moreover, there is no evidence that the claimant has in his possession any further documentation which he can disclose.[52]As regards the factors relating to past criminality and risk of re-offending, again I do not consider these have been shown to have been of sufficient gravity to justify continuing detention given the existing length of detention and absent any predicted date for removal . The criminality which dated back to 2006 and before, was not in fact of the highest order – the majority of the offending being for theft – and the underlying drug problem was accepted by the AIT as under control as long ago as January 2007 and there is nothing to suggest that by 2009 some 2 years after the appeal, the claimant is not other than drug free. I of course accept that such factors can be powerful factors justifying detention and in a case where there was not already such a long period of detention ,that which is said against this claimant in this regard may well be taken as determinative.[53]Similarly as regards the risk of absconding. Clearly that risk existed, but again in my judgment given the very long period of detention already undergone, and absent any predicted removal date, I do not consider the evidence before me justifies a conclusion that that risk could not have been proportionately met after February 2009 by the imposition of appropriate conditions on release of the sort which the defendant did make provision for in the summaries provided in response to the several unsuccessful bail applications made in this case.

The bail applications

[54]I should make mention of some curious features of the bail summaries put in by the defendant in response to those applications which were pursued in January, May, July and September 2009 although I make clear that there is no pleaded challenge to the legality of detention in this case based upon the way information was placed before the Tribunal considering such applications. And of course the persistent refusals of bail cannot in themselves be evidence of the legality of the detention which would not be a matter for the Tribunal .It does nonetheless appear that the tribunals when considering bail did not have before them the full or accurate facts as to the progress of the ETD application and the likely length it would take for it to be determined.[55]Thus in the summary for 14 January 2009 this appears:
"The applicant has an outstanding ECHR application, however this is not a barrier to removal. A travel document is required for the applicant's removal however he has previously failed to comply with the documentation process by refusing to be interviewed, give bio data details and fingerprints. A travel document application has been completed and submitted using details found on the case file. The applicant has now started to comply with the documentation process and a documentation interview is currently being arranged. It is therefore considered that a travel document can be obtained within a reasonable timescale." "
An application for an emergency travel document has been made to the Moroccan authorities using information from the case file as the applicant has failed to comply with the documentation process. The Moroccan authorities have informed us that they are carrying out verification checks, once these have been completed, a travel document should be made available within a reasonable period of time. The applicant has just started to comply with the documentation process and an interview date is now awaited. Once bio data details have been received these can be forwarded onto the Moroccan authorities. We submit that at the present time, detention remains appropriate and proportionate whilst we obtain this information and obtain a travel document."[56]The statement that the Moroccan authorities were carrying out verification checks is one which is difficult to understand. On the evidence before me the first substantive response emerging from the Embassy advising that checks were “still ongoing” was as late as the 8th September 2009. Moreover on the material before me the ETD application was not submitted to the Embassy until 21 January 2009. Further when the decision refusing bail was made on the 14 January 2009, the Tribunal wrote ( in part):
"The applicant has however within been in custody for a very substantial period of time, 28 months, largely because of failure to cooperate with removal, but has now cooperated and the respondent states the application to have been with the Moroccan Embassy since 15 December 2008 and documentation is expected soon. If documentation is not received from the Moroccan Embassy within a reasonable period then in view of the time in custody, bail may very well become appropriate."
The application had not of course been with the Embassy from 15 December 2008 and it is very difficult to understand how the defendant could have allowed the tribunal both to consider this to be the case and moreover, to understand that the ETD documentation as at 14 January 2009 was “expected soon “[57]As a further example bail was refused on 5 May 2009 for reasons expressed by the tribunal (in part) thus :
"R[espondent] is endeavouring to remove the A[pplicant] and expects to receive an ETD by end of June 2009. Removal is reasonably imminent and coupled with (i) - (iii) above justify A[pplicant]'s continued detention."
[58]Again on the evidence before me, it is difficult to understand how the tribunal could have been led to believe that the defendant was expecting to receive an ETD by the end of June and hence that removal was imminent. If contrary to the evidence before me ,that had been the case then one can perhaps understand why the Tribunal took the view it did of the continuing detention of the claimant being justified.

Conclusion

[59]Accordingly on the evidence before me, I conclude that the defendant has not established a continuing lawful detention in this case. As has been previously said, there can be no magic formula by which one can determine the precise date from which a detention became unreasonable but I am satisfied for the reasons I have given that I should take that date in this case as being the 23rd of February 2009.I refer again to my observations in paragraphs 46 and 47 above.[60]I accordingly make a declaration that the claimant’s continuing detention from the 23rd of February 2009 until the date of release was unlawful. I will hear submissions on any further consequential orders that might be required.[61]MS BUSCH: My Lord, just before my learned friend makes submissions on that point, I wonder if I might ask you just to clarify one aspect of your judgment, which is the way in which you paraphrase my argument. At one stage you said that my submission was to the effect that 12 months in principle was reasonable, and you said, I think fairly enough, that that was overly simplistic. In fact what I submitted was, I said, given the failure to comply, was 12 months reasonable in all of the circumstances of this case, i.e. the Dyson factors?[62]MR JUSTICE KING: I will certainly make clear that what the Secretary of State was saying was: was the period of detention for 12 months a reasonable one, having regard to all the factors in the Dyson LJ's judgment, and in particular, as far as the Secretary of State is concerned, the factors which went to non-cooperation, risk of absconsion and re-offending? I do not derogate, though, from my previous observation that the 12 months was taken in this context in support of that proposition, from the guidance of the RGDU that it might take up to 6 to 12 months.[63]MS BUSCH: I have no difficulty with that whatsoever. What I was slightly concerned about was that -- I rather gained the impression that I was suggesting that 12 months in principle, in the abstract -- I would never make such a submission.[64]MR JUSTICE KING: I have delivered this judgment ex tempore, and when I approve the judgment I will ensure that it is properly expressed.[65]MS BUSCH: Thank you very much, my Lord. I am grateful.[66]MS NAIK: My Lord, before we move on, I perhaps should make this point. It might be appropriate for us to come up to agree an order rather than trying to make submissions at this late hour; there are a number of matters that arise. Just one issue in respect of the mis-statement to the tribunal. What I suggested in my reply, and I appreciate I have not amended my grounds to that effect, partly because the nature and timing of the submissions of all these documents was that the mis-statement to the AIT does not fall within the (I) paragraphs 46 (i) to (iv), but I suggested that there may be need for a further category. I do not know if you recall that submission?

MR JUSTICE KING: I do recall.

[68]MS NAIK: I appreciate it was perhaps on the hoof, but I would not like to leave that point unresolved in terms of not only relief -- it could just be declaratory relief, and we can come to that in due course, but my submission is that there must be consequences that flow from the Secretary of State's mis-statement to the tribunal which were capable of affecting the outcome of the bail application, which may have contributed to the continuance of detention, irrespective of the finding of –[69]MR JUSTICE KING: Having completed my judgment, I am reminded, and I should record, that a submission was made to me by Ms Naik on behalf of the claimant that I should in this judgment add to the principles upon which the legality of detention under this power is to be determined; that I should add to those principles by adding a fifth to the list given by Dyson LJ, which is referable to the way in which the Secretary of State presents his case to any tribunal considering bail. I am not prepared to do so for any number of reasons.(1) this was never part of the pleaded case.(2) I would want to hear more argument on this submission. This judgment is concerned with the decision of the Secretary of State to continue detention, not the decision of any appeal tribunal to refuse bail. We may here be in the area of a potential tort of wrongful abuse of process, although I use that term loosely. For example there is authority for the proposition that if through evidence which is known to be false, and there usually has to be malice in that context, a court is induced by a person to invoke process whereby a claimant is deprived of his liberty, then a tortious claim may lie against that person. But what I am not prepared to do in any event is deal with a separate ground of relief which was not put forward in the claim form.[70]Further, the Secretary of State has not had a fair opportunity to commandeer and bring evidence to court in order to deal with this matter. I have said that it is a mystery how these statements were made, and it reflects on the procedures within the Secretary of State's department. I do not resile from that, but I am not prepared to go further than that.[71]MS NAIK: I am grateful, my Lord.[72]Obviously in terms of detailed relief, perhaps we could come up with an appropriate order. If you want to hear an application, obviously I have an application for my costs.[73]MR JUSTICE KING: What I suggest is that, if you cannot agree between yourselves, put submissions in writing. If I cannot determine the appropriate order on paper, there can be a further hearing as to the nature of the order. I know you asked for damages, but I have heard no submissions on this.[74]MS NAIK: My Lord, my understanding is that this court would not normally deal with the damages point, it would be sent off for further assessment by the QBD.[75]MR JUSTICE KING: I perhaps should say, and I will incorporate this into my judgment at some point, that it is to be observed that even today the ETD has not been obtained.[76]I can rule on costs if you want me to?[77]MS NAIK: No, I am sorry, I was standing at the wrong moment.

MR JUSTICE KING: Thank you all very much.

Cited in 3 later judgments