Raki, R (on the application of) v Secretary of State for the Home Department & Anor [2011] EWHC 2421 (Admin)

Case No CO/4894/2011[2011] EWHC 2421 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/10/2011
Before
HIS HONOUR JUDGE BIRTLES(Sitting as a Deputy High Court Judge)
Between
THE QUEENClaimanton the application of MOUNIR RAKIClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendantSECRETARY OF STATE FOR THE FOREIGN AND COMMONWEALTH OFFICEDefendant
Mr Alex Goodman (instructed by Leigh Day & Co.) for ClaimantMr Matthew Barnes (instructed by The Treasury Solicitors) for DefendantHearing Hearing date: 3 rd August 2011
JudgmentHIS HONOUR JUDGE BIRTLES :Introduction
[1]This is a claim by Mr Mounir Raki seeking a mandatory order directing his release from immigration detention. He has been detained for four years and seven months pending deportation to Morocco. Permission was granted on the papers by Miss Elizabeth Laing QC sitting as a Deputy High Court Judge on 15th June 2011. She ordered an expedited hearing. I heard the substantive application on 3rd August 2011 and reserved judgment. By a consent order of the same date the second Defendant was removed from the proceedings.[2]The Claimant was represented by Mr Alex Goodman of counsel. The Defendant was represented by Mr Matthew Barnes of counsel. I am grateful to both counsel for their written and oral submissions.

Documentation

[3]I read the following materials: i) A trial bundle (one volume). ii) A core bundle (hereinafter ‘CB’) (one volume). iii) Defendant’s disclosure (seven volumes). In the event I was only referred to the trial bundle and the core bundle.

The Material Facts

[4]Mr Goodman prepared a most helpful and comprehensive chronology. I did not understand Mr Barnes to dissent from it.[5]For the purposes of this application, the following are the material facts.[6]The Claimant is a foreign national whom the Defendant believes to be Moroccan. He has been deprived of his liberty for a total of just over five years. During the first six months (July 2006 – January 2007) he was detained pursuant to a sentence of the Crown Court in respect of a conviction on two counts of theft. Since 8th January 2007 he has been detained at the direction of the Secretary of State purportedly under immigration powers permitting detention pending deportation.[7]Upon being arrested for theft on 9th July 2006 the Claimant claimed asylum and claimed to be Moroccan (CB 7-10). However, on 16th October 2006 in an interview with a probation officer preparing a report for the purposes of sentencing, the Claimant stated that he had lied when he said he was Moroccan and said in fact he had grown up in Palestine and had never been to Morocco. (CB 48-9). At all times since, he has asserted that he is from Palestine. Some examples extracted from the chronology are as follows: 20.01.07 Completed questionnaire and bio data stating C is Palestinian; all family Palestinian except for Mother Moroccan 189, 191-2 89, 72-3 20.01.07 C writes letter to D (possibly in response to letter of 18.01) stating he is Palestinian not Moroccan. 190 92 14.02.07 C appeals deportation decision asserting he is a Palestinian national and has never visited nor resided in Morocco 141 125 04.06.07 Draft (signed) witness statement states C is Palestinian, his father Palestinian and his mother Moroccan. States he made up information given in screening interview. Explains to Tribunal at appeal hearing that he is Palestinian 548-552 146-150 20.08.07 Bail application asserts Palestinian nationality and stresses mental strain of detention. 511 175 14.11.07 C statement in support of bail application states• He left Palestine 10 years previously aged 17• Gave various data relating to his home• Father was Palestinian and Mother Moroccan• Willing to cooperate with Palestinian authorities 463-4 179-80 7.05.08 13.05.08 C writes to Palestinian Delegation and Moroccan embassy asking whether or not he qualifies as a national. States that all his family were born in Palestine 1171-2 1168-9 214-5 221-2 21.05.08 C states in letter to D: “I am from Palestine. You have decided that I am Moroccan. If this is the case then you have to send me to Morocco & I await my travel documents” [sic] 768 230 08.04.09 C states in interview with immigration authorities he is Palestinian but is willing to be returned to Morocco. Duty Administrative Officer states “As I am sure you are aware, the sub is actually from Palestine but wants to go to Morocco, the country from which his mother comes” 1128 1121 353, 354 10.3.10 Interview with Moroccan embassy. C reportedly informs embassy he was born in Palestine. Embassy official reportedly confirm he is not Moroccan. 1503 1597 436 May 2011 C instructs solicitors he was born in Gaza, Palestine B 5 27.06.11 C tells Professor Katona he was born in Gaza, Palestine D 61[8]However, in making those assertions, he has been inconsistent as to the details of his childhood, and particularly as to his age when leaving Palestine. He has shown scant factual knowledge of Palestine (e.g. in interview on 15th November 2007 (CB 182-188)) and language analysis suggests he does not speak Arabic as a Palestinian would (CB 398-405).[9]The Secretary of State regards, and has always regarded, the Claimant as Moroccan. Indeed, the Detailed Grounds of Defence assert that “it is beyond any reasonable doubt that the Claimant is a national of Morocco” (DGD §78, A 48). It should be noted that the main factors supporting the Defendant’s view that the Claimant is Moroccan are as follows: i) First, the Defendant relies on the Claimant’s own assertions. In the middle of 2006, the Claimant claimed to be Moroccan when applying for asylum. Yet: a) The Claimant has never since 2006 repeated those claims and has always stated that he was lying when he claimed to be Moroccan. b) The Asylum and Immigration Tribunal, the primary fact finding body tasked with considering these assertions, did not accept them. c) There are no other parts of the Claimant’s own account of his life which the Defendant does accept. ii) Second, the Defendant relies on the fact the Claimant has been said to speak with a North African variety of Arabic. Most notably, a language analysis conducted on October 2009 found that the Claimant spoke “a variety of Arabic with certainty found in North Africa, nearest Morocco”. However this is of limited value in demonstrating the Claimant is Moroccan since the analyst was not asked whether his form of language might be consistent with his own account of being somebody who originated from Palestine, but had a Moroccan mother and lived much of his early life in North Africa. The Defendant also appears to consider that doubts about the credibility of the Claimant’s assertions that he is Palestinian prove that he is Moroccan. (see for example paragraph 78 of the Detailed Grounds of Defence A 48).[10]The Asylum and Immigration Tribunal, having heard oral evidence from the Claimant on 5th June 2007 took the view that “if one were to try to understand the true story it would be impossible to put it together from the contradictory evidence given”. Although I now have the language analysis and further evidence of the Claimant’s own account, I am in little better position to make an assessment than the Asylum Immigration Tribunal was in 2006. It is unnecessary to go further than the Asylum Immigration Tribunal’s finding. Given the Defendant has never considered the Claimant to be other than Moroccan; remains of the view that it is ‘beyond reasonable doubt’ he is Moroccan and does not seek to suggest that removal could be effected to any country other than Morocco, the issue is whether the Defendant will be able to deport the Claimant to Morocco in a reasonable period of time. The Defendant’s explanation for the length of detention so far The Operation of the Unpublished Policy January 2007 – 9th June 2008

The Defendant’s explanation for the length of detention so far

[11]The detention falls into two periods. The first period consists of the first 18 months from January 2007 to 9th June 2008. During this time, the Defendant did not apply for a travel document. However, during this initial 18 months, the Claimant was detained pursuant to a secret policy by which every foreign national convicted of a crime continued to be detained at the expiry of their custodial sentence irrespective of their individual circumstances. The operation of this policy was considered by the Supreme Court in Lumba and Mighty v SSHD [2011] 2 WLR 671 (note in particular §§ 5, 16-18 and 154-164). The Supreme Court held that the hidden policy admitted of exceptions only in compassionate cases and that it had been deliberately concealed. At §163 the Supreme Court cited evidence that caseworkers had been told by senior officers to detain and give reasons for detention that appeared to comply with published policy, even where they had taken the view that there was no good reason for detention.[12]At the outset of the detention of this Claimant (in April or May 2007), the caseworker responsible for considering detention stated there was very little detention space available and so there was “no prospect of detaining subject any further in the current climate” but that “tagging would be considered a credible option”. However, as in the cases cited in Lumba the caseworker was overruled by an Assistant Director at UKBA (CB 141). Thereafter, consistently with unpublished policy, the Claimant remained detained even though no efforts were made to facilitate his removal for well over a year.[13]The policy applied universally to every foreign national prisoner pending deportation and admitted of exception only on compassionate grounds: (Lumba §17). It therefore follows that it applied to this Claimant. Furthermore, there is specific evidence of its application in documents disclosed by the Defendant showing that his detention was assessed against the so-called “Cullen criteria” (a part of the secret policy) in June 2008 (CB 250). Also, the Defendant used the euphemism “current criteria” to refer to the Cullen criteria within Detention Reviews: for example on 14th January 2008 a Detention Review stated “the nature of his offences and his lack of cooperation make him a suitable candidate for his continued detention in line with current criteria” (CB 196). By contrast, the published policy at the time contained no criteria factoring in the nature of offences.[14]On 22nd May 2008 the unpublished policy had been leaked into the public domain through the case of R (Ashori) v Secretary of State for the Home Department [2008] EWHC 1460 (Admin): see Lumba §18. Up until that point the Defendant made no attempt to obtain a travel document. On 9th June 2008 the Defendant submitted an application for a travel document to the Moroccan Embassy in London. I have set out these facts because I reject Mr Barnes’ submission that the unpublished policy has no bearing on this case. It clearly added to the delay. 9th June 2008 – August 2011[15]The second period commenced on 9th June 2008 when an application was made to the Moroccan Embassy for a travel document. To this day there has been no substantive response from the Embassy. Within the 4000 pages of documents disclosed by the Defendant, there is not a single letter from the Moroccan Embassy. The Defendant has not disclosed a single minute of any meetings (or reciprocal communications of any kind) with any officials of the Embassy nor given any evidence as to why there has been such an inordinate delay in this case. Yet some contact by the Moroccan authorities with the Defendant is apparent: i) 16th January 2009 “the file has been to Morocco for investigation” (CB 276) ii) 21st April 2010 Moroccan officials have not found a match for the Claimant’s fingerprints (e.g. CB 468 and CB 457). iii) 6th July 2010 The Moroccan Consulate reportedly stated checks are being conducted (CB 554). iv) 28th March 2011 MPR states “as recently as 18 February 2011, the Moroccan Consulate have stated that checks are being carried out in Moroccan [sic]” (CB 593). The Law The Role of the Court

The Law

[16]When reviewing the legality of executive detention, the Court may find that authority for detention is vitiated by any established material public law error that bears on and is material to the decision to detain: Lumba and Kambadzi v Secretary of State for the Home Department [2011] 1 WLR 1299. When considering whether the exercise of the power of detention has exceeded the substantive limits imposed by the Hardial Singh principles the Court is entitled to assess the reasonableness of continued detention objectively for itself: R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74; R (on the application of Youssef) v The Home Office [2004] EWHC 1884 at [62]; R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [62], [71].

Secretary of State’s Power of Detention

[17]The Defendant relies in this case upon powers in paragraph 2 (1) to Schedule 3 of the Immigration Act 1971 (detention following a court recommendation for deportation) until 10th April 2010 and from that point (once the deportation order had been served) on paragraph 2 (3) to Schedule 3 of the Immigration Act 1971 (Detailed Grounds of Defence paragraph 67). The Court is concerned in this claim with the legality of current detention under paragraph 2 (3). This provides:
“(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”
The paragraph creates no presumption of detention: it confers a discretion to detain on the Secretary of State: Lumba §§40 and 55.

Hardial Singh

[18]The Secretary of State’s powers of detention under paragraph 2 of Schedule 3 to the Immigration Act 1971 are limited, inter alia, by the common law principle that where detention has been unreasonably long or the Secretary of State will be unable to effect removal within a reasonable period of time, she should not seek to exercise her powers of detention. Woolf J. in Hardial Singh [1984] 1 WLR 704 held (at 706) of the Secretary of State’s power under paragraph 2 (3): “First of all, it can only authorize detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. 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.” (My emphasis)[19]Detention ceases to be lawful once it is apparent that deportation cannot be effected within a reasonable period. Dyson LJ in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 at paragraphs 46-48 encapsulated the relevant principles:
“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 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.”
[20]The Hardial Singh principles, and Dyson LJ’s exposition of them in R(I) have been recently approved by the Supreme Court in Lumba and Kambadzi.

Non-cooperation and Hardial Singh

[21]The Supreme Court in Lumba held that where it can be shown(a) that a detainee has been refusing to cooperate with removal and(b) had the detainee cooperated, that would have sped up the process of removing him, those were factors which might be relevant to an assessment of the reasonableness of the period of detention. Lord Dyson SCJ held at §§122-3 and 127-8:
“Non-cooperation with return The most common examples of non-cooperation are (i) a refusal by a person who does not have a valid passport to cooperate with the obtaining of travel documents to enable him to return and (ii) a person's refusal to avail himself of one of the Home Office schemes by which he may leave the United Kingdom voluntarily. Most of the discussion in the cases has centred on (ii). It is common ground that a refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. But I would warn against the danger of Detention Reviewawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person. What is, however, in issue is whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful. … It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation… What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a "trump card" which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), "the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation." If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them.”
[22]In both domestic Hardial Singh cases and under Article 5, there comes a point where a detention becomes excessively lengthy even where its length is attributable to non-cooperation. In R (Rostami) v Secretary of State for the Home Department [2009] EWHC 2094 Foskett J considered a case in which the failure to have removed the Claimant was attributable to his failure to cooperate, and indeed the detainee had been convicted for non-cooperation. Foskett J held:
“…Without, I hope, doing an injustice to the well-formulated and clearly articulated arguments, they amounted to little more than the following: (a) "If only the Claimant would change his stance, there is a chance that we can make the necessary arrangements to send him back to Iran"; (b) "there may be a possibility that the Iranian authorities will change the policy concerning the evidence needed to confirm the identity of someone the UK authorities wish to return to Iran.” … 70. As to (a), all the evidence of the last 33 months suggests that there is no prospect at all of a change of heart on behalf of the Claimant despite two spells in prison in consequence of having failed to cooperate with the authorities. I am bound to say, having read the Claimant's letter of 13 May 2007 (see paragraph 37), it seems to me that his position is likely to have become even more entrenched with the recent re-election of the government from the influence of which, I infer, he fled originally in 2005. I think that the only legitimate conclusion I can draw on the evidence is that he has a firmly settled intention not to return to Iran and that he will do nothing to facilitate any process by which that will be achieved. As to (b), this can be nothing more than speculation on the evidence before me. … 71. If I apply conscientiously, as I must, the test established by previous cases of whether the Secretary of State has proved on the balance of probabilities that there is a reasonable prospect of securing the Claimant's removal within a reasonable time, then the answer on the evidence before me is clear – the Secretary of State has not established this. If anything, the evidence is weaker than it was in the case of I (see paragraphs 13-15 above) where all that was established was a hope that removal might be achieved within a few months. … 72. I do not reach the conclusion to which I have referred with much enthusiasm given that it is the Claimant's own failure to co-operate that leads to it. It brings to mind the comments of GolDetention Reviewing J to which I drew attention in paragraphs 18 and 19 above. However, as the cases to which my attention has been drawn and to some of which I have referred make clear, that may be the inevitable consequence of applying the test thus established. At least in the Claimant's case, there is no basis for thinking that he will represent a threat to the public by the commission of the kind of serious criminal offences that those in other cases have committed. His only brush with the law is his resolute failure to co-operate with securing his return to Iran. It is impossible to say that there is no risk of him absconding given the resolute nature of his attitude to returning to Iran. However, that cannot now, in my view, override the consideration that his period in immigration detention should now be brought to an end. … 73. For those reasons, it seems to me that there is no alternative but to declare that the Claimant's detention is now unlawful.”
[23]This position is reflected in the jurisprudence of the ECtHR as to whether “action with a view to deportation” is being taken as required by Article 5. Mikolenko v Estonia [2009] ECHR 1471 concerned a former Soviet and Russian army officer who had served on Estonian territory. The Estonian authorities refused to extend his residence permit; and he was detained for expulsion. The detention lasted over three years and eleven months. The Estonian Government argued that the applicant’s detention had been self-induced and pointed to their hopes of a change in circumstances and their own repeated efforts to document him (§53). The ECtHR rejected those arguments, holding: “The Court observes that the applicant's detention with a view to expulsion was extraordinarily long. He was detained for more than three years and eleven months. While in the beginning of his detention the domestic authorities took steps to have documents issued to him, it must have become clear quite soon that these attempts were bound to fail as the applicant refused to co-operate and the Russian authorities were not prepared to issue him documents in the absence of his signed application, or to accept a temporary travel document the Estonian authorities were ready to issue… What is more, the applicant's expulsion had become virtually impossible as for all practical purposes it required his co-operation, which he was not willing to give. … The foregoing considerations are sufficient to enable the Court to conclude that the grounds for the applicant's detention – action taken with a view to his deportation – did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities' failure to conduct the proceedings with due diligence. There has accordingly been a violation of Article 5 § 1 of the Convention.” (My emphasis).[24]Thus, where the sole barrier to removal was a lack of cooperation, the Court held that detention was not lawful under Article 5 since in circumstances where the detainee was not willing to give his cooperation, action could not be taken with a view to deportation.[25]It is not necessary for the Defendant to identify a period during which removal will take place in order for her to demonstrate that there is reasonable prospect of removal. As explained by Richards LJ, giving the judgment of the Court in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112:
“There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was "some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be" (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released”
[26]The authorities set out above do not permit detention to carry on indefinitely, and each case is to be determined on its own facts. Nevertheless, in order to provide some context, the higher Courts have in the past held that detention in the region of four years and more is lawful, or at least potentially lawful, where it is the result of the Claimant’s deliberate frustration of his removal (see for example R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, R (MC Algeria) v Secretary of State for the Home Department [2010] EWCA Civ 347, and the refusal by the Court of Appeal not to declare the detention of Mr Lumba contrary to the Hardial Singh principles, but to remit it back to the High Court as a matter to be decided, which approach was followed by the Supreme Court.

The Issues

[27]The issues in this case are as follows: i) Whether, in view of the length of detention, any further period of detention would now be unreasonable so as to offend the common law or Article 5; ii) Whether the Defendant is able to effect deportation within a reasonable period of time and/or whether detention can still be reasonably regarded as being justified by ‘action with a view to deportation’ for Article 5 purposes. Discussion General Evidence Relating to Removals to Morocco

Discussion

[28]The generic evidence available suggests that (at the very least) lengthy delays are to be expected in any case where the Defendant seeks to remove a person without documents to Morocco. The Defendant’s Travel Documentation Information Guide (E1-2) estimated the timescale for production of a document by the Moroccan authorities where there was no supporting evidence as 12-24 months. The RGDU ETD Country Reference Guide dated 29th June 2011 (E8-26) states that the timescale for production of a document where there is no supporting evidence is “up to 12 months”. In R (Harrack) v Secretary of State for the Home Department [2010] EWHC 2621 (Admin) (23rd March 2010) King J found that in circumstances where a detainee had by February 2009 been detained for a two and a half years pending deportation to Morocco:
“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.”
[29]In this case I find there is no evidence to support Mr Barnes’ submission that it is likely that the Claimant would have been provided with an ETD within 6 months of the decision to make a deportation order on 8th December 2006, if the Claimant had not made an asylum claim founded on lies, but had instead: provided his passport; provided any other Moroccan documents; provided details of his family, friends and life in Morocco; or, had even made an honest application to the Moroccan authorities.[30]Neither do I accept Mr Barnes’ further submission that it is of considerable significance that the application for the Claimant’s ETD has not yet been decided by the Moroccan authorities, but remains outstanding. He submits that in circumstances where increasing pressure is being placed on the Moroccan authorities, as set out in the chronology in the Defendant’s Detailed Grounds, and as is clear from Harrack the Moroccan authorities do produce such documents even after significant periods of time, the Defendant expects a resolution of the Claimant’s situation by the Moroccan authorities issuing an ETD within a reasonable period of time.[31]That submission repeats the Detailed Grounds of Defence at §84 A 50:
“It is of considerable significance that the application for the Claimant’s ETD has not yet been decided by the Moroccan authorities, but remains outstanding. In circumstances where increasing pressure is being placed on the Moroccan authorities, and the Moroccan authorities do produce such documents even after significant periods of time, the SSHD expects a resolution of the Claimant’s situation”
No evidential basis for the assertion that “the Moroccan authorities do produce such documents even after significant periods of time” has been provided, nor has it been explained why the fact that the ETD remains outstanding after three years can somehow be seen as a factor in the Defendant’s favour. The basis for the Defendant’s expectation of a resolution of the Claimant’s situation is obscure, and in light of the Embassy’s recalcitrance thus far, is unreasonable. The Defendant has not responded to the Claimant’s request for clarification of these assertions (B40-43). I note that the Defendant’s officials have repeatedly expressed (misplaced) optimism as to the prospects of a speedy removal, for example: i) On 20th April 2008 a Detention Review stated the Defendant held substantial bio-data which should assist with removal in a reasonable timescale (CB 212) ii) On 14th June 2008: a Bail Summary stated “we are entering the latter stages of obtaining a travel document” (CB 241) iii) On 14th July 2008 a Detention Review stated an ETD would take 12 months to produce (CB 263) iv) On 8th August 2008 a Detention Review stated that an ETD would be unlikely to be available “for several months” (CB 264) v) On 22nd July 2009 a Detention Review stated “the Moroccan embassy should be able to make a decision, in the near future, as to his nationality” (CB 378) An assistant Director, Mr Ed Mackie, who was consulted in an attempt to resolve the impasse took a more realistic view when, on 24th November 2008, he candidly commented to his junior officials “there is not much more we can do with this case” (CB 268-270).

Fingerprinting

[32]In R (Mjemer) v Secretary of State for the Home Department [2011] EWHC 1514 (Admin) (12th May 2011) Mr Richard Coy, a Senior Executive Officer at the UK Border Agency did provide a witness statement and disclosed a sequence of emails relating to attempts to utilise the Moroccan fingerprint database and to produce a Memorandum of Understanding relating to its use. That evidence has a bearing on this case because these diplomatic negotiations were relied on by the Defendant in justifying continued detention in this case (see for example the bail summary of 11th February 2011 at CB 559-560). Having cited much of the evidence relating to fingerprints in detail, HHJ Stewart QC held in relation to the Defendant’s expressed hopes that fingerprints might resolve the impasse in relation to removal to Morocco in that case:
“The reality is that there has been a nil response for 10 months from Morocco in relation to this Claimant and all others, apart from the one negative match reported in September 2010. For all those reasons, I have determined that there is not a realistic prospect that deportation will take place within any known timeframe, if at all. If it does occur, it will take at the very least many months, especially as, even if there was a positive match for the Claimant, there would then have to be an ETD procedure to be gone through.”
The Defendant’s only witness evidence in this case (statement of Ms Gridley at C1-2) confirms that still today no Memorandum of Understanding has been agreed with the Moroccan authorities. Fingerprint evidence is of no relevance in this case.

Adverse Inferences

[33]In the Detailed Grounds of Defence the Defendant stated that further evidence on the likelihood of an ETD being produced was “pending”:
“Pending the service of evidence as to the likelihood of a Moroccan ETD for the Claimant the SSHD accepts that…an ETD may take 24 months”
Indeed on four occasions the Defendant has indicated further evidence would be forthcoming (see B 54-8). Yet on 27th July 2011, the Claimant’s solicitors were informed that none was now to be produced.[34]In R (I) v Secretary of State for the Home Department [2010] EWCA Civ 727, Munby LJ held that:
“There is one final matter I need to deal with: the Secretary of State's tardy disclosure of highly relevant documents and failure throughout to file any evidence whatever in relation to the necessarily serious allegation of unlawful detention.”
Having considered the Defendant’s obligations of candour and full and frank disclosure in judicial review proceedings he held at §55:
“This is far from being the first occasion when the judges have had to complain about deficiencies in the Secretary of State's response to claims such as the one which is before us. If, despite all this, the court is again left having to draw inferences in such a situation, then the Secretary of State should anticipate that the inferences drawn may well be adverse to him.”
In this case I note that (a) the Claimant’s representatives have on a number of occasions requested evidence from the Defendant as to the likelihood of an ETD being obtained in a reasonable timeframe (e.g. B40-3) (b) the Defendant has indicated that evidence would be forthcoming; (c) It is well established that the burden of justifying detention lies on the Defendant (d) the Claimant’s caseworker Ms Gridley has given evidence on a limited issue about fingerprints; and (e) no evidence about the likelihood of an ETD being obtained in a reasonable timeframe has been forthcoming. I infer in that context that there is no prospect of an ETD being obtained in a reasonable timeframe. That is not in fact a difficult inference to draw because all the evidence that is available suggests that is the appropriate conclusion in any event.

Factors Relating to the Claimant

[35]The Defendant relies upon the Claimant’s poor character and conduct, but after this length of time and with no evidence of an ETD likely to be obtained in a reasonable period of time, it is difficult to see how detention could remain lawful.

Risk of Reoffending

[36]The Defendant asserts in the Detailed Grounds of Defence that there is “a very high risk” of the Claimant committing offences upon release. However, in 2006, the Claimant’s probation officer assessed the likelihood of the Claimant reoffending as ‘low to medium’ (CB 49). There is no up-to-date evidence or professional assessment of risk. The Defendant is entitled to take a different view as to the risk of re-offending but it is difficult to see the rational basis for that different view.

Risk of Absconding

[37]Mr Goodman accepts that it is reasonable to infer a risk of absconding given that the Claimant has no ties in this country, and has previously lived and worked illegally. I agree.

Lack of Co-operation

[38]Detainees seeking to avoid removal through non-cooperation usually refuse to accept voluntary repatriation; refuse to be documented and ordinarily pursue appeals against deportation/removal. Yet this Claimant has sought to avail himself of the Defendant’s facilitated return scheme or indicated a willingness to be removed (28th January 2008 – CB 778, 765-6; 4th July 2008 CB 252, 254; 22nd January 2009 CB 309; 2nd March 2009 CB 332; 6th April 2009 CB 347; 8th April 2009 CB 353; 28th April 2009 CB 361-2)). Furthermore, he has given ‘bio data’ (20th January 2007 CB 89, 72-3; 20th April 2008 CB 212) and has contacted both the Moroccan embassy and the Palestinian General Delegation in the hope that they would assist (CB 214-5, 221-2). He did not exhaustively pursue appeals against the refusal of his asylum appeal, nor has he pursued any fresh claims, or sought revocation of his deportation as many “uncooperative” detainees might. Furthermore, he has repeatedly expressed to the Defendant the extreme impact of detention on his mental health and his desire to get out of detention by any means open to him, including deportation. His self-harm and suicide attempts in detention evidence the genuineness of these statements (see section 5 of Professor Katona’s medical report at D 64-5). I do not find lack of co-operation a major factor in this case.

Mental Health

[39]The Claimant has seriously self-harmed on at least seven occasions while in detention; five of those incidents occurring in the past year: 10th August 2008; 4th April 2010; 30th September 2010; 4th October 2010; 5th October 2010; 31st October 2010; 7th June 2011 (see Report of Professor Katona, section 5, (D 64-5)). He has been taking anti-depressant drugs for the past three years. Professor Katona’s opinion is that “Mr Raki is in my view particularly likely to persist in this pattern of self-harm as a response to the frustration he experiences in immigration detention…there remains a danger that his self-harming might inadvertently cause him severe harm or even death” (Section 9 (b) of the report at D 67). I do not accept Mr Barnes’ submission that these are minor incidents. The evidence suggests that some clearly are not.

Latest Detention Review: 18th July 2011

[40]In the Detention Review of 18th July 2011, the Claimant’s mental health was (for the first time) directly addressed in considering whether he should remain detained. The Review considers the report of Professor Katona and concludes that a UKBA policy which states that those suffering “serious mental illness which cannot be satisfactorily managed within detention” should only be detained in very exceptional circumstances is “not engaged”. While naturally a person who was suffering a serious mental illness should not be in detention, the policy cited is not intended to imply that all forms of mental illness or suffering short of serious mental illness are irrelevant. Yet that is the way it has been treated. Consequently the Detention Review fails to give any weight to the evidence of detention having an impact on the Claimant’s mental health. It has been acknowledged since Hardial Singh itself (at 709A) and R(I) (at §48) that the impact of detention upon a detainee, and in particular any mental difficulties in coping with detention are matters which must be weighed in the balance in assessing the reasonableness of lengthy detention (irrespective of whether they amount to “serious mental illness”).[41]The Detention Review also incorrectly states that the Claimant has been detained for “42 months” (CB 686), whereas in fact the true period at that point was 54 months. This is a persistent error in the Defendant’s consideration of the Claimant’s detention occurring in all recent Detention Reviews and even Bail Summaries (see for example CB 639 and CB 666). It is further apparent that the Detention Reviews rehearse the case against release irrespective of time passing and accordingly rarely if ever address the Hardial Singh test.

Conclusion

(i) Prospective Detention Unreasonable

[42]Dyson LJ’s third Hardial Singh principle is:
“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”
[43]In practice, the case law on this principle has grappled with the interaction of two concepts: the likelihood of removal and the timespan over which removal might occur. For example in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Keene LJ cautioned at paragraph 82 that it:
“must be exceptional to regard lengthy administrative detention as lawful where there is some prospect of removal but no clearly predicted date for it”
By way of further example, in Rostamisupra, Foskett J considered the requirement to be “a reasonable prospect of securing the Claimant’s removal within a reasonable time”.[44]In this case there is no substantial or compelling evidence as to(a) the prospect of deportation occurring at all or(b) the timespan for removal. In that context, and given the length of detention already, continued detention violates Dyson LJ’s third Hardial Singh principle.[45]In my judgment allegations by the Defendant as to a lack of cooperation do not afford a defence to this claim for three reasons: i) It is not a reasonable interpretation of the evidence to suppose that the Claimant has some undisclosed information or documents which could expedite his deportation. ii) Even if the Court does hold that the Claimant is not cooperating, as Lord Dyson SCJ held in Lumba, where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal to cooperate has no causal effect. In this case there is no reason to suppose that the recalcitrance and delay on the part of the Moroccan embassy has anything to do with the Claimant personally. iii) A finding that a detainee has been uncooperative may incline a Court to lengthen the timespan over which it would regard continued detention to be lawful, but where no realistic prospect of deportation within any timeframe can be demonstrated, such indulgence does not assist the Defendant. (ii). Length of Detention Unreasonable[46]The length of the detention in this case is self-evidently unreasonable.[47]Because I have decided this case on common law grounds against the Defendant it is not necessary for me to decide it under Article 5 and I decline to do so.[48]When judgment is handed down I will hear counsel as to the form of the order.

Cited in 2 later judgments