Tabassum, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1821 (Admin)

[2011] EWHC 1821 (Admin)Case No CO/3410/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2011
Before
STEPHEN MALES QC(sitting as a Deputy High Court Judge)
Between
THE QUEEN on the application ofClaimantNAAEM ANWAR TABASSUMClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
The Claimant in person for in personJohn-Paul Waite (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates: 1 July 2011
Judgment

Stephen Males QC:

[1]The claimant, Naeem Anwar Tabassum, has been detained since 12 June 2009 as a foreign criminal pending his deportation to Pakistan. That is the date on which he completed serving the custodial part of a sentence of 18 months imprisonment imposed at Chelmsford Crown Court on 19 September 2008 for knowingly possessing a false document, namely a passport in the name of Naeem Irfan. He is detained pursuant to section 3 and Schedule 3 paragraph 2 of the Immigration Act 1971. The claimant says, however, that even if he has been a criminal, he is not a foreign criminal, and is not liable to deportation, because he is in fact a British citizen, born in this country on 30 September 1966 as the child of a British mother and a Pakistani father. The Secretary of State disputes this, saying that the claimant has produced no reliable evidence to make good this claim. However, in the face of the claimant's insistence that he is a British citizen, and in the absence of any compelling evidence about who he is if he is not the person he claims to be, the Pakistani authorities have so far declined to issue an emergency travel document so that the claimant can be deported to Pakistan.[2]The first question to be decided, therefore, is whether the claimant is indeed a British citizen as he claims. If he is, he is entitled to be released, his detention since 12 June 2009 has been unlawful, and he may well be entitled to substantial damages (although the Secretary of State asked me to leave over any issue about the relief to which the claimant may be entitled if I find him to be a British citizen).[3]If the claimant is not a British citizen, it remains the fact that he has now been in immigration detention for a period of just over two years with, he says, no imminent prospect of removal since Pakistan will not take him. He invites me to find that his detention is unlawful in accordance with the well known Hardial Singh principles (R v. Secretary of State for the Home Department, ex parte Hardial Singh [1984] 1 WLR 704). Whether that is so is the second question to be decided.[4]The hearing before me has been the hearing of a rolled-up application for permission held pursuant to the order of Lloyd Jones J dated 17 May 2011. The claimant appeared in person. The Secretary of State was represented by Mr John-Paul Waite. In my judgment there is enough in the claimant's case to warrant full consideration of his claim. Accordingly I grant permission and proceed to determine the substantive claim.

Is the claimant a British citizen?

[5]Section 3(8) of the Immigration Act 1971 provides:
“When any question arises under this Act whether or not a person is a British citizen, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.”
[6]Thus the burden is on the claimant to prove that he is a British citizen.[7]For the reasons set out below the claimant has failed to prove that he is a British citizen. As I shall explain, the claimant is a man who has dishonestly used or attempted to use false identity documents on at least two previous occasions and there are aspects of his account which, in my judgment, are hard to reconcile with his claim to be who he says he is. As a result I can give little or no weight to his unsupported evidence, although I bear in mind that in the event Mr Waite did not pursue an application to cross examine the claimant. There is very little in the way of independent support for the claimant’s claim.

Findings of fact

[8]According to the claimant, he was born at Rawtenstall in Lancashire on 30 September 1966, the son of Eileen Kance, a British woman, and Mohammed Anwar Khan, a Pakistani man. He says that at the time of the birth his mother was married to another man and he was the result of an extramarital and interracial relationship which, at that time, was regarded as socially unacceptable. He says that the name given to him at birth was Tarrick Anthony Kance.[9]Undoubtedly a child of that name was born on 30 September 1966. The birth was registered, although the handwriting in the register did not distinguish clearly between the letters “a” and “o”, leading to some later confusion as to whether the name of the child was Tarrick or Torrick. The mother’s name was given as Eileen Kance -- or possibly Konce -- (formerly Royal) of 4 Cape Street, Rawtenstall. The father was not named. According to a witness statement given to a police officer on 24 November 2003 by a Mr Melvin Harold Royal, his aunt Eileen Flynn had a child in 1966 and named him Torrick Anthony Khan, at a time when she was married to a man called Jimmy Koncz and also went by the name Koncz herself. Mr Royal said that when his aunt became pregnant by a man of Pakistani origin known as “Mandy” Khan (though Mandy was not his real name), she was disowned by some members of the family because it was not approved of that a white girl should have a child with a Pakistani man. He said that his aunt moved in with the man's family at 4 Cape Street, Rawtenstall; that he himself babysat a few times for Torrick when he was a baby; but that his aunt walked out on Mandy and the baby when the baby was about six months old; and that soon after this Mandy left the area, after which time he never saw Mandy or Torrick again. His aunt had since died. The circumstances in which this statement came to be made were not explained, although it may well have been in connection with the prosecution of the claimant at Woolwich Crown Court referred to below. Despite some confusion over the surname by which the baby was known (Khan not Kance) and the spelling of the mother’s surname (Koncz not Kance), there is no reason to disbelieve the substance of this account.[10]I find, therefore, that a baby with the name Tarrick Anthony Kance was born on 30 September to a British mother and a Pakistani father, and lived at the address in Rawtenstall for the first six months or so of his life. The question, however, is whether the claimant was that baby.[11]The claimant says that he was taken to Pakistan with his father at about the age of five; that he travelled to Pakistan with his own British passport issued to him as a child; that he was brought up and attended school in Pakistan; that he remained there until he returned to this country in the year 2000 at the age of 34; and that instead of taking his father’s surname of Khan, for all this time he continued to be known by his birth name of Tarrick Anthony Kance.[12]However, despite living in Pakistan for almost 30 years, as he says that he did, the claimant has been able to produce remarkably little evidence to establish his identity there. He has produced what purports to be a school leaving certificate dated 16 August 2005 from the Zia-ul-Islam Public High School of Bank Road, Sialkot, which certifies that Tarrick Anthony Kance the son of Muhammed Anwar (sic) attended school from 26 April 1978 until 10 April 1981, together with five short affidavits dated either 2 or 4 June 2008. These affidavits, which are almost identical to each other, each state that the family of Tarrick Anthony Kance the son of Muhammad Anwar, date of birth 1966, place of birth UK, holder of identity card number 305-66-645649, is personally known to the deponent “since birth”; that the deponent has family relations with the family of Tarrick Anthony Kance; that the deponent always shares "all the events of joy and sorrow with his family"; and that Tarrick Anthony Kance left Pakistan in 2000 for the United Kingdom. In three of the five affidavits the deponent states that he knows that in 1971 Muhammad Anwar came back to Pakistan from the United Kingdom with “a baby named Mr Tarrick Anthony Kance”, while in another of them the deponent says that he was a class fellow of and grew up with Tarrick Anthony Kance.[13]These documents do not in my judgment carry any weight. They are the sort of documents which it would be easy for anyone to obtain; in some respects they are obviously untrue -- in fact, none of the deponents can have known the child described “since birth” if he only came to Pakistan at the age of five; and the father's surname of Khan is omitted. Similar comments apply to a further affidavit, dated 12 June 2008, by a Mr Javed Iqbal, who states that Naeem Anwar Tabassum, formally (sic) known as Anthony Tarrick Kance, is personally known to him since childhood, that they went to the same secondary school and lived in the same neighbourhood, and that he is personally aware that Mr Tabassum was born in England, that his mother was English, and that he came to Pakistan with his father as a baby. This affidavit has the claimant’s supposed forenames in the wrong order and contradicts the claimant’s account that he came to Pakistan when he was about five years old and not as a baby.[14]As Mr Waite submits, almost 30 years of life in Pakistan would be expected to leave a much fuller and objectively verifiable documentary record than the claimant has produced. In addition to the identity card referred to in the affidavits, which has not been produced, it is to be expected that the claimant, if his account is true, would be in a position to provide work records, tax records, bank statements, medical records, driving licence and the like to establish his identity in Pakistan as Tarrick Anthony Kance. If he has, as the affidavits claim, family and friends in Pakistan, who have known him almost all his life, it is surprising that such documentation has not been produced. Even if the claimant himself, in detention, would have difficulty in accessing such material, it appears that he has family and friends who can help him to do so. There has been no explanation why documentation of this nature has not been produced.[15]The claimant says next that he travelled here in 2000 with a valid Pakistani passport and his expired British child's passport; that on his arrival in the United Kingdom, he settled in London; and that in the early years after his arrival he made a number of applications for a British passport in the name of Tarrick Anthony Kance, which were rejected. He says that he made five such applications. An intelligence report from the Border & Immigration Agency refers to three such applications, on 6 November 2001, 22 November 2001 and an unspecified date in November 2002. However, it is common ground that all these applications were rejected. The claimant says also that both the Pakistani and the expired British passport were stolen in a burglary at his home in 2001, although he did not report the burglary to the police.[16]However, this evidence is contradicted by the intelligence report just mentioned, which indicates that no trace can be found of a UK visa being issued in the name of Tarrick Anthony Kance (or for that matter of Naeem Anwar Tabassum, the name the claimant now uses); that there are no Home Office records indicating the arrival in the United Kingdom of anyone using either of these names who was born on 30 September 1966; and that according to passport records, between 1966 and 1980 no passport was issued in the name of Tarrick Anthony Kance or Torrick Anthony Konce.[17]I accept this evidence from the intelligence report as I have summarised it. Moreover the suggestion that the claimant’s British passport, issued to him as a child in the name of Tarrick Anthony Kance, was stolen from him in 2001 is not credible. In 2001 the claimant was obviously concerned to establish a British identity and to obtain a current British passport. The suggestion that he did not bother to report the theft of this important document is far fetched.[18]It follows that the circumstances in which the claimant actually arrived in this country, and the name he was using at the time, are obscure, although it does appear that since at least late 2001 the claimant has been claiming to be Tarrick Anthony Kance, a British citizen. I note, however, that the claimant acknowledges, indeed asserts, that he held a Pakistani passport in the name of Tarrick Anthony Kance when he entered the United Kingdom, and that it was by virtue of that passport that he travelled here.[19]On 2 November 2001 at Stratford Magistrates Court the claimant acquired the first of his convictions in this country, when he was fined £100 for persistently soliciting a woman for prostitution from a motor vehicle. It is not clear in what name the claimant was prosecuted for this offence. I was provided with a police national computer printout dated 13 October 2008 which shows this conviction in the name of Naeem Irfan, a false identity which the claimant was certainly using at a later date, although it is not altogether clear whether his use of this identity goes back as far as 2001.[20]A year after this first conviction, on 19 December 2002, the claimant changed his name (or at any rate purported to change his name) by deed poll from Tarrick Anthony Kance to Naeem Anwar Tabassum, the name by which he is now known. He provided no explanation for this change of name, save to say that it was the result of frustration associated with the rejection of his passport applications in the name of Tarrick Anthony Kance. Mr Waite submitted, and I agree, that this explanation does not make sense. It was an extraordinary step to take for someone who was trying his utmost to obtain a British passport and whose prospects of obtaining such a passport depended upon establishing his identity as Tarrick Anthony Kance.[21]The claimant’s efforts to obtain a British passport continued after this change of name, not only in his new name of Naeem Anwar Tabassum, but also by dishonest means as he attempted to establish an alternative identity for himself as a man named Naeem Irfan. At some point in 2003 the claimant was prosecuted at Woolwich Crown Court, together with another man, Abdullah Atcha, for attempting to obtain property by deception, the property in question including a passport in the name of Naeem Irfan. It appears from the plea and directions hearing questionnaire dated 8 January 2004 that the claimant was prosecuted in the name of Naeem Anwar Tabassum and that there were as many as 13 counts on the indictment, although some of these appear to relate to applications for a passport and driving licence in the name of Naeem Anwar Tabassum. The claimant told me that in fact there were charges brought against him in the name of Naeem Irfan as well as Naeem Anwar Tabassum, and that charges in the latter name were dismissed, but the position about that is not clear. What is clear is that on 16 July 2004 the claimant pleaded guilty at Woolwich Crown Court to four counts of attempting to obtain property by deception on 3 September 2003 and was sentenced to two years imprisonment concurrently on each count. There is no evidence before me of the date on which the claimant was released from prison, although this must have been before April 2005. It may be, therefore, that the claimant had served time on remand which counted towards the custodial part of his sentence.[22]Meanwhile on 11 February 2004 the claimant had applied for a passport in the name of Naeem Anwar Tabassum, supporting his application with his change of name deed. The application was unsuccessful.[23]The claimant’s next application for a passport was made in November 2004. It appears that the application was made in the name of Naeem Anwar Tabassum, and that the fee of £70 was paid from a Capital One Premier Card account in the name of Tarrick Kance. This too was unsuccessful.[24]On 17 May 2005 the claimant acquired further convictions, this time for unlicensed taxi touting and driving uninsured on 17 April 2005, for which he was fined. He was convicted again for driving uninsured on 12 September 2008 and was fined and disqualified from driving for six months. Again the police national computer printout suggests that this conviction was in the name of Naeem Irfan.[25]The claimant's use of the name Naeem Irfan led to the conviction which has resulted in the order for his deportation. On 10 September 2008, travelling on a passport in the name of Naeem Irfan, the claimant was arrested at Stansted airport having arrived on a flight from Spain. Interviewed by the immigration authorities, he said that he had bought this passport, which was the passport for which he had been arrested in 2003 and for which he had already served a prison sentence. (I comment that this seems questionable: the 2004 convictions were for attempting to obtain property by deception, and it seems likely that any passport actually obtained would have been confiscated; however, I need not determine this). On 19 September 2008 the claimant pleaded guilty at Chelmsford Crown Court to knowingly possessing a false document and was sentenced to 18 months imprisonment. The sentencing judge did not make a recommendation for deportation, but expressly stated that his reason for not doing so was that he did not have enough information about the claimant or his circumstances to determine whether his claim to have been born in Britain was true.[26]According to the claimant, he had gone to Spain for a holiday for two months as a result of “the further frustration of being imprisoned for an offence that he did not knowingly commit and not being able to travel out of this country on holiday since 2000 despite being a British citizen”. I do not accept this explanation. The claimant knew perfectly well what offence he was committing by attempting to obtain a false passport, as indicated by his guilty plea, so the suggestion that he had been imprisoned for an offence that he did not knowingly commit is nonsense. Moreover I accept the submission of Mr Waite that it would be astonishing for a person genuinely concerned to establish his British citizenship, and who had already served a prison sentence for attempting to obtain a false passport, to go on holiday abroad using a false passport both to leave and to re-enter the United Kingdom.[27]On 1 December 2008 the claimant refused to undergo an Emergency Travel Document interview, and on 10 December 2008 he was served as a foreign criminal with a deportation order dated the previous day. On 4 March 2009 he was served with a prosecution warning notice for failing to comply with the Emergency Travel Document interview process.[28]On 12 June 2009 the custodial part of the claimant’s sentence came to an end and his period of immigration detention commenced. Since that time the defendant has been attempting to process the claimant’s deportation to Pakistan, but this has not so far proved to be possible as a result of the claimant’s insistence that he is a British citizen. The steps taken by the defendant are described in a witness statement of Ian Wyburn, an executive officer of the United Kingdom Border Agency.[29]Mr Wyburn describes a curious incident which occurred on 23 September 2009:
“On 23 September 2009 a passport check took place. The Claimant had given a copy of a passport valid until 2010 [I interpose to say that the date of 2010 is an error; elsewhere in the statement Mr Wyburn makes clear that the date referred to should be 2012] with a photograph to UKBA. A copy of this passport was faxed to the FNP clerk at HMP Chelmsford to confirm that the person in the passport is not the same person who was in their custody. The FNB clerk confirmed that the claimant was not the same person in the faxed copy of the passport. … The photocopy of the passport, which was in the name the Claimant is using in these proceedings, was valid until 2012 and the passport number on the photocopy was 301117803. A photocopy of this passport with a photograph was faxed to the FNP clerk at HMP Chelmsford to establish if the subject was the same person as in the passport. The FNP clerk at HMP Chelmsford confirmed that the subject was not the same person as in the photocopy of the passport and that the signature in the photocopy of the passport did not match the signature of the subject on his name changed deed poll, which was in the possession of the clerk. As the photograph and signature on the photocopy of the passport did not match it was concluded that the passport must be for a different person, or that the Claimant was using some[one] else’s identity.”
[30]This account is confirmed by contemporary case notes, which add that the claimant was asked to sign a piece of paper with his usual signature, and that two different signatures which he provided bore no resemblance to the signature on the copy of the passport, but that the claimant refused to allow the paper with his signature on it to be taken out of the interview, and destroyed the paper on which they were written.[31]The claimant’s account of this incident is different. He told me that in December (not September) 2009 a female official named Hazel visited him in prison with a copy of a passport issued in the name of Naeem Anwar Tabassum, and bearing his photograph, but that she refused to listen to his insistence that the photograph was indeed of him, and left the room. This account corresponds with what the claimant wrote in a letter dated 28 January 2011 to Baroness Warsi, requesting her intervention on his behalf.[32]According to the defendant this photocopy of the passport has been mislaid. As Mr Waite acknowledged at the hearing, this was to say the least extremely unsatisfactory. Accordingly further inquiries were made after the hearing to trace the passport in question. A search of a database entitled the “UK Passport Service Database" using the passport number 301117803 revealed that a UK passport with that number was issued to an individual named Naeem Tabassum on 31 January 2002. However, it is clear that this individual is not the claimant. Thus the photograph is not of the claimant; the signature is not his; the passport was issued some eleven months before the claimant changed his name by deed poll to Naeem Anwar Tabassum (the passport does not mention any middle name); the date of birth on the passport is 30 April 1966, while the claimant claims to have been born on 30 September 1966; and the place of birth on the passport is Faisalabad, while the claimant claims to have been born in Lancashire. Moreover, the claimant has not suggested that any UK passport was ever issued to him in the name of Naeem Tabassum and it is obvious that the claimant has not had a British passport in the name of Naeem Anwar Tabassum or Naeem Tabassum since 2002. If he had, there would have been no need for the passport offences which he committed in 2003 and 2008, or for the various passport applications which he has made since 2002. In the light of these inquiries, I think it likely that the document produced in September 2009 was not actually a copy of a passport, but was the result of a similar search of this database made by the UKBA, and that when it was shown to the claimant, he latched on to the document, falsely attempting to claim that the photograph and signature were his.[33]On 30 January 2010 the claimant was interviewed. He continued to maintain that he had been born in the United Kingdom and taken to Pakistan at a young age, but agreed to attend an interview with Pakistani officials. On 8 June 2010 an application for an emergency travel document was lodged with the Pakistan High Commission and on 23 June 2010 the claimant was duly interviewed by Pakistani officials. During that interview he continued to insist that he was a British citizen. On 9 July 2010 the Returns Group Documentation Unit (RGDU) of the UKBA forwarded documentation to the High Commission, which documentation consisted, as I understand it, of the school leaver’s certificate provided by the claimant together with an affidavit. It is not clear precisely what affidavit has been provided to the Pakistan High Commission, but whatever documents were provided have not so far convinced the High Commission that the claimant is a Pakistani national. This is not surprising. Apart from the documents produced by the claimant himself, which purport to evidence his origin in the United Kingdom but which the defendant regards as unreliable, the defendant has no evidence of the claimant’s identity. There is, therefore, no prospect that documents submitted relating to Tarrick Anthony Kance will persuade the Pakistani authorities to take the claimant. Such documents are likely to have the opposite effect.[34]Since July 2010 the claimant’s name has been included on a “review list” submitted to the High Commission, initially twice a month and then weekly, reminding the High Commission that a response is awaited. Very recently, on 17 June 2011, a response was received stating that the claimant's national status is required to be verified from Pakistan.

Discussion and conclusion on British citizenship

[35]The evidence which I have set out does not persuade me that the claimant’s account is more likely than not to be true. He has shown himself to be prepared to make dishonest claims as to his identity on at least two occasions, for which he was convicted in 2004 and 2008. He was prepared on a third occasion, in September 2009, to claim that a passport issued to a different Naeem Tabassum was his. I do not accept that a full or truthful account has been given of the claimant’s arrival in this country, of his apparent decision to change his name by deed poll in 2002, or of the reasons why or circumstances in which he travelled to Spain in 2004. I bear in mind that, just because the claimant has been dishonest on some occasions, that does not necessarily mean that his essential claim to be Tarrick Anthony Kance is a lie. Nevertheless, when a man has a record of proven dishonesty consisting of a willingness to adopt false identities on more than one occasion, a court is entitled to require independent evidence before accepting that he is who he says he is.[36]Surprisingly, the claimant has provided no details of his life in Pakistan for almost 30 years apart from the school leaver’s certificate, a document which is dated 16 August 2005, and which (even if it is accurate in recording that Tarrick Anthony Kance left the school concerned some 24 years earlier in April 1981) does not necessarily demonstrate that the claimant was the pupil concerned. If he was, what was he doing in Pakistan in the 19 years between April 1981 and his arrival in this country in 2000? Where was he living? Was he working and, if so, in what occupation and for whom? If not, how did he support himself? These are elementary questions about which a genuine claimant would have been able to provide evidence, but which the claimant has not attempted to address in the whole period during which he has been claiming to be Tarrick Anthony Kance.[37]Thus, while it appears that Tarrick Anthony Kance was or is a real person, born in Lancashire to a British mother on 30 September 1966, who may well have been taken by his father to Pakistan at a young age, I am unable to accept that the claimant is that person. Rather, it seems that he has by some means or other come to learn of the existence and background of the real Tarrick Anthony Kance and has attempted to claim that identity for himself.[38]If the claimant is not the real Tarrick Anthony Kance, who is he? This is not strictly something which I need to decide, it being sufficient to say that the claimant has failed to discharge the burden of proof upon him to prove that he is a British citizen. However, it seems to me that there are only two other possibilities. The first is that his true name has always been Naeem Anwar Tabassum, and that the purported change of name by deed poll, which I have found to be unconvincingly explained, was a charade. Although there is no evidence to enable me to make a positive finding to this effect, it seems to me to be a real possibility. The second is that he has some other identity which he has chosen not to reveal.

The Hardial Singh principles

[39]My conclusion that the claimant is not a British citizen means that he is indeed a foreign criminal liable to detention pending his deportation. This makes it necessary to consider whether his detention is lawful applying the Hardial Singh principles. These have been considered in many cases, including the recent Supreme Court decision in WL (R (Lumba) v. Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671. I add that there has been no suggestion in the present case, as there was in WL, that the detention of the claimant is unlawful as a result of failure to follow published policies or, as in SK (R (Kambadzi) v. Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299), as a result of failure to carry out regular reviews. There have been such reviews in the present case and no issue about them has been raised.[40]In Hardial Singh itself, Woolf J stated the principles in the following terms:
“Although the power which is given to the Secretary of State in paragraph 2 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 … 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. 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.”
[41]In WL Lord Dyson at [22] affirmed his own restatement inR (I) v. Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 at [46] as a correct encapsulation of these principles. This was as follows:
“(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 a 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.”
[42]I am satisfied, and the contrary was not suggested, that the Secretary of State does intend to deport the claimant and is using the power to detain for that purpose, and that the Secretary of State is acting with reasonable diligence and expedition to effect removal. The real questions on this part of the case are whether the two year period for which the claimant has already been detained is unreasonable and, if not, whether it has become apparent that the Secretary of State will not be able to effect deportation within a reasonable period. The claimant maintains, in effect, that the Pakistani authorities refused to issue an emergency travel document as a result of his interview in June 2010, and that this was a final decision. However, in my judgment this over states what happened at that time, and the recent letter from the Pakistani High Commission dated 17 June 2011 demonstrates that a final and irrevocable decision has not yet been made, albeit that the Pakistani authorities are not as yet satisfied that travel documentation should be issued.[43]The court’s approach to the related questions whether a reasonable period has expired or, if not, whether it has become clear that the Secretary of State will not be able to deport the claimant within a reasonable time, was discussed by Lord Dyson at [103] and following of his judgment in WL: 103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful. 104. How long is a reasonable period? At para 48 of my judgment in R (I), I 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 pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the 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.’ 105. So far as I am aware, subject to the following qualifications, the relevance of these factors has not been questioned. The qualifications are first that the relevance of the risk of offending on release is challenged on behalf of the appellants in the present case. Secondly, ‘the nature of the obstacles’ begs two questions that have been raised on this appeal, namely what is the relevance, if any, of delays attributable to the fact that a detained person(i) is challenging the decision to deport him by appeal or judicial review and will generally not be deported until his challenges have been determined; and(ii) has refused to return voluntarily to his country of origin?”[44]Lord Dyson went on to say at [110] that the risk of offending was a relevant factor, the strength of which depended on the likelihood of it occurring and the potential gravity of the consequences; and at [123] that a refusal to return voluntarily, or to co-operate to obtain travel documents, is relevant to the assessment of what is a reasonable period if a risk of absconding can properly be inferred from the refusal. However, a refusal to return voluntarily would not by itself necessarily justify a period of detention which would otherwise be unreasonable and therefore unlawful [128].[45]Lord Dyson did not specifically address the weight to be given to a failure to co-operate to obtain travel documents, but in my judgment a broadly similar approach applies – that is to say, such a failure is capable of being a weighty consideration depending on the circumstances of the particular case, but is not necessarily what Lord Dyson described as a “trump card” for the Secretary of State. In R (MH) v. Secretary of State for the Home Department [2010] EWCA Civ 1112 the Court of Appeal held at [68] that such a failure to co-operate can be relevant in the three ways -- it can be relevant to the assessment of the risk of the claimant absconding; it means that, in assessing what amounts to a reasonable time for the claimant to be detained, it is legitimate to conclude that the claimant bears a considerable degree of responsibility for the Secretary of State's inability to deport him; and it may give the Secretary of State the impression that the claimant has information which could be put to the foreign authorities with a reasonable prospect of being accepted by them.[46]However, Mr Waite accepted that even when the claimant is refusing to cooperate, in order for the detention to be lawful there must be a realistic prospect that deportation will take place -- and will do so, I would add, within a reasonable time. A detainee cannot be detained indefinitely. It is at least theoretically possible, therefore, that in some cases a detainee’s refusal to co-operate may successfully frustrate that prospect. If so, then however reprehensible his conduct, his detention under Schedule 3 cannot be continued. Hence Mr Waite’s acceptance that unless there is now some prospect that the Pakistani authorities will accept the claimant, he must be released.

Application of the principles

[47]In the present case the claimant has already been in detention for two years and there appears at present to be no immediate prospect of his return to Pakistan. This is a substantial period of detention, although longer periods have been held to be lawful, and clearly requires anxious consideration of the continued lawfulness of his detention. I am satisfied that the Secretary of State has taken reasonable steps to attempt to persuade the Pakistani authorities to accept the claimant, although so far without success. It was not positively suggested by the claimant that there was anything more which the Secretary of State could have done, although as mentioned below it seems to me that there are some further inquiries which could usefully be made. Nor has it been suggested that the conditions in which the claimant is being kept are particularly adverse, over and above the loss of liberty and the restrictions and discomfort inherent in such detention. It has not been suggested that detention is having a particularly adverse effect on the claimant, and no family members who may be affected by his detention have been identified. He is a single man with no children or other dependants.[48]The factors of particular importance in this case, in my judgment, are the risk of absconding, the risk of further offences being committed, and the impact on the overall assessment of the claimant's failure to cooperate, including his persisting in what I have found to be a false claim to be a British citizen.[49]The defendant has assessed the risk of the claimant absconding if he is released as being high. I agree with that assessment in view of the claimant's history of being willing to adopt false identities, his convictions for dishonesty and his lack so far as the evidence goes of any strong family or community roots.[50]The defendant has also assessed the risk of the commission of further offences as being high. I agree that, given the claimant’s record of willingness to acquire and use false identity documents, it is reasonable to conclude that he would take any opportunity to do so again. However, it is right to record that his criminality is otherwise of a low order, with no sexual or violent offences. To some extent, therefore, the risk of absconding and the risk of further offending go together -- that is to say, the claimant is likely to abscond and to use false identity documents in order to do so. However, over and above the likely further use of false identity documents, there is no reason to think that there would be any risk of serious harm to the public if the claimant were released.[51]Perhaps the most important feature of this case in applying the Hardial Singh principles is that the obstacles which stand in the path of the Secretary of State preventing a deportation have been created by the claimant himself. As Mr Waite submitted, if the claimant is not a British citizen, and is not Tarrick Anthony Kance, it follows that he has advanced a false case to the Home Office, that it is not surprising that the Pakistani authorities have not so far been prepared to issue a travel document, and that the claimant’s failure to cooperate means, in a sense, that he has only himself to blame for his continuing detention. I accept that submission. Taking all of the factors which I have mentioned into account, I consider that the claimant's failure to co-operate reinforces what I have said about the risk of absconding and the risk of further offending, and leads to the conclusion that a reasonable period of detention has not yet expired. As in MH, the defendant is entitled -- and on my findings is correct -- to form the view that the claimant has information which could be put to the Pakistani authorities with a reasonable prospect of being accepted by them.[52]Nevertheless, as explained above, Mr Waite accepts that this is not determinative of the legality of the claimant’s detention, which depends upon the existence of a real prospect that his deportation may take place within a reasonable time. Here, it seems to me that five factors are important.[53]First, I have already mentioned the fact that on the claimant's own account, he travelled to this country in 2000 on a Pakistani passport, and I have referred to the possibility that Naeem Anwar Tabassum may be the claimant's birth name. It may well be possible to establish whether Naeem Anwar Tabassum was a real person with an identity in Pakistan and even a passport or identity card in the years before 2000 and, if so, whether what is known about him corresponds with the claimant. (It appears, of course, that there was at least one other person called Naeem Tabassum in Pakistan, namely the individual who was born in Faisalabad on 30 April 1966 and to whom a British passport was issued on 31 January 2002, but as explained above, that person is not the claimant).[54]Secondly, it should be possible to establish whether a Pakistani passport was ever issued in the name of Tarrick Anthony Kance, or whether Tarrick Anthony Kance was ever the holder of the Pakistani identity card number 305-66-645649 referred to in the affidavits provided by the claimant. If not, or if any photograph or signature does not match the claimant, that will be strong evidence to disprove his account which the Pakistani authorities may well accept. Conversely, I suppose that it is possible that if such documents do exist, they may call into question the conclusion which I have reached on the evidence before me. One way or the other, however, there is a real prospect that such inquiries may resolve the matter.[55]Thirdly, if the claimant is not the real Tarrick Anthony Kance, what has happened to that individual? If he is alive, it may well be that it would be possible to trace him, for example if he is still living in Pakistan. If he is not, there may be some record of his death.[56]If inquiries along these lines are made in Pakistan, they may well produce useful information. There is no reason to suppose that the Pakistani authorities would not be prepared to make such inquiries if requested to do so. Alternatively it may be possible for the defendant to cause such inquiries to be made.[57]Fourthly, as in MH, if my conclusion is correct the claimant clearly has information which could be provided to the Pakistani authorities with a reasonable prospect of being accepted by them. While it is a possibility that he will persist in his refusal to do so, it is right to say that this is the first occasion on which the evidence on which he relies in support of his claim to be a British citizen has been examined in detail by a court. Moreover, the claimant requested me to treat him as a man who is desirous of co-operating with the authorities. If I take him at his word, despite my reservations about his truthfulness on other occasions, there is reason to hope that he may now be prepared to be more co-operative.[58]Fifthly and finally, although there will be cases where a claimant's failure to co-operate by refusing to provide information about his true identity means that he is able to frustrate the efforts of the Secretary of State to deport him, and that a time will therefore come when there is no real prospect of deportation, in my judgment that is a conclusion which should not lightly be reached. Otherwise it would be too easy for a detainee whose deportation Parliament has determined to be in the public interest to defeat the removal process and procure his release.[59]In the result, although the case is near the borderline, I conclude that there is at present enough of a realistic prospect that deportation will take place within a reasonable time to render the claimant's continued detention lawful.

Conclusion

[60]The claimant has failed to prove that he is a British citizen. He is therefore liable to deportation as a foreign criminal and to be detained pending his removal. After careful consideration of the Hardial Singh principles, I conclude that the claimant’s detention is lawful. Accordingly, while I grant the claimant permission to apply for judicial review, I dismiss the substantive claim.