FH (Iran), R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1092 (Admin)

[2013] EWHC 1092 (Admin)Case No CO/6259/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1 st May 2013
Before
FRANCES PATTERSON QC(Sitting as a Deputy High Court Judge)
Between
THE QUEEN on the application of FH (IRAN)ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Tim Buley (instructed by Deighton Pierce Glynn Solicitors) for ClaimantMs Katherine Olley (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates: 12 th and 13 th December 2012
Judgment

Ms Frances Patterson QC :

[1]This is a claim by FH for a declaration that the defendant, the Secretary of State for the Home Department, acted unlawfully in her detention of him.[2]The claimant was detained under immigration powers on the 21st July 2009 until the 5th July 2012, a period of two years eleven and a half months or one thousand and eighty days.[3]The claimant contends that his detention was unlawful:(i) From its inception; or(ii) Thereafter on a monthly basis when the continued detention was reviewed; and/or(iii) From the 30th November 2011 when the United Kingdom government ordered the closure of the Iranian embassy in London.

Factual background

[4]The claimant is an Iranian national. He was born in Iran on the 16th February 1955. He entered the United Kingdom as a student on a four month visitor visa on the 2nd January 1979.[5]In July 1980 the claimant married a British citizen (Penny Preece) in a Muslim ceremony in Paris. On the 27th January 1981 the claimant re-entered the United Kingdom and was granted leave to enter until the 27th April 1981. After a further extension the claimant was granted indefinite leave to remain on the 24th August 1982.[6]The claimant and his wife had four children. They are, Alexander, born on the 7th October 1982, Daniel born on the 14th November 1985, Lara born on the 16th October 1988 and Leander born on the 23rd July 1992. The claimant’s sons have served with the British army and his daughters are respectively a teacher and a student.[7]The claimant’s marriage broke down. His divorce was finalised in 1996. He remains on good terms with his ex wife and his children some of who were present in court. In 1996 the claimant’s previously successful business career faltered and he was made bankrupt for the first time. He was made bankrupt for the second time in 2002.[8]On the 12th January 2001 the claimant applied for naturalisation as a British citizen. As part of the application a letter which was dated the 16th April 2002 was sent to the caseworker at the Immigration and Nationality Directorate of the Home Office. The letter enclosed all of the claimant’s passports including the earliest from 1979 when the claimant said that he was granted indefinite leave to remain. Photocopies of the passports remain on the Home Office file. The application was refused on the 13th August 2002 as the result of unspent criminal convictions.[9]On the 11th May 2003 the claimant was involved in a serious road traffic accident. The injuries sustained were of sufficient severity as to warrant an award of disability/incapacity benefit.[10]Between 1998 and 2005 the claimant was convicted of a total of 26 offences: four for obtaining property by deception, one for common assault, criminal damage, using threatening/abusive behaviour, threats to kill and unlawfully harassing an occupier, and two each for unlawful evictions and assault occasioning actual bodily harm. The balance were for perverting the course of justice.[11]On the 5th August 2005 the claimant was sentenced by Bournemouth Crown Court to four years’ imprisonment following his plea of guilty to assault occasioning actual bodily harm and his conviction by a jury of making threats to kill. The offences arose as a consequence of a failed business on the part of the claimant. The Judge, in his sentencing remarks, observed that the claimant nursed a long-standing grievance against his victim (who had agreed to buy the premises in which the claimant had been a tenant) claiming that he, the claimant, was still entitled to occupy the premises or that he required payment for the equipment that he had on the premises. The threat to kill “was a calculated threat in the context of a history of trouble”. The assault occasioning actual bodily harm was a head butt or a punch followed by a kick to the victim when he was on the floor.[12]On the 1st December 2005 the claimant was sentenced by the Bournemouth Crown Court to two years and six months’ imprisonment following his conviction of thirteen counts of committing an act or series of acts with intent to pervert the course of justice and four counts of obtaining property by deception. The sentence was ordered to be served consecutively to that which FH was serving.[13]On the 5th May 2006 the claimant was served with notice of liability to deportation. He responded with representations based on articles 2 and 3 of the ECHR on the 9th May 2006. The defendant treated the representations as an asylum claim. The representations were considered and his asylum application refused on the 20th April 2007.[14]On the 12th November 2007 the claimant was served with notice requiring him to rebut the presumption under section 72 (2) of the Nationality, Immigration and Asylum Act 2002 that his continued presence in the United Kingdom constituted a danger to the community. He responded through a solicitor’s letter on the 20th November 2007.[15]On the 10th October 2008 the claimant was served by the defendant with a decision to make a deportation order. His appeal was dismissed in a decision promulgated on 8th December 2008. His application for reconsideration was refused on the 8th January 2009 and he became appeal rights exhausted on the 20th January 2009.[16]The claimant was served with a signed deportation order on the 25th February 2009.[17]On the 14th of July 2009 the defendant sent a “reasons for detention” letter to the claimant although the claimant does not believe that he ever received it. A minute of the decision to detain the claimant dated the 14th July 2009 says, “Likelihood of removal within a reasonable timescale. The claimant has refused to cooperate in the documentation process. It looks unlikely that he will be removed any time soon.”[18]On the 21st July 2009 the claimant was detained under immigration powers and began receiving monthly detention reports (DR).[19]On the 14th August 2009 DR1 concluded that the risk of reoffending, absconding and the claimant’s criminal history justified the claimant’s ongoing detention. It also said:
“There is no prospect of FH’s removal from the UK any time soon…”
[20]On the 9th September 2009 the detention report (DR2) stated, “Like most Iranian nationals in this situation, there is no prospect of FH’s removal from the UK any time soon. He has flatly refused to cooperate with the ETD process by refusing to provide any personal documentation like an expired passport, Iranian ID card, birth certificate or driving licence to enable us to obtain a travel document for him. He has also refused to attend at an interview at the Iranian embassy.”[21]Similar sentiments were expressed in the detention reviews of October, November and December 2009 and January and February 2010.[22]It was noted also that the claimant had failed to provide his current/or expired Iranian passport and/or his ID card when they were sought on the 15th September 2009, 13th October 2009, November 2009, 5th January 2010, 4th February 2010, 30th March 2010.[23]On the 13th October 2009 the claimant failed to provide the necessary information to complete a bail application. That was the case also in November 2009 and on the 5th January 2010.[24]On the 25th February 2010 the claimant brought a County Court claim against two UKBA staff for unlawful detention.[25]On the 1st March 2010 the detention review recorded, “As FH entered legally, it was suggested that we should therefore obtain a copy of his passport. Unfortunately there is nothing available on file.” “…the necessary travel documentation is not readily available. His removal is not anticipated any time soon.”[26]On the 30th May 2010 the Treasury Solicitor filed a defence to the County Court action in the Weymouth County Court which stated, “The defendant is not aware of any reasons why the claimant was not released from his sentence on the 21st July 2009…”[27]On the 27th April 2010 the claimant refused to co-operate with the emergency travel documentation (ETD) process. On the 28th April 2010 the claimant refused to attend an interview and failed to return the disclaimer form. The defendant noted that, “subject stated he will not comply to ETD process.”[28]On the 25th May 2010 the claimant refused to provide evidence of his identity.[29]On the 11th June 2010 the claimant did not attend an emergency travel documents interview. The defendant considered the use of section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 prosecution powers.[30]On the 22nd June, 17th August and 14th September 2010 the claimant failed to provide evidence of his identity.[31]On the 14th October 2010 the claimant was moved to HMP Elmley.[32]On the 22nd October 2010 the claimant was interviewed and said he did not want to return to Iran.[33]On the 18th January 2011 the claimant was moved to Colnbrook Immigration Refugee Centre.[34]On the 3rd March 2011 and 25th March 2011 the claimant was offered an application form for the facilitated return scheme.[35]On the 27th April 2011 the claimant took the forms and is recorded as saying he would complete them over the next few days and that he wanted arrangements made for his return to Iran as soon as possible.[36]On the 24th May 2011, 19th July 2011, 16th August 2011, 15th September 2011 and the 12th October 2011 it is recorded again that claimant was given forms for the facilitated return scheme and was asked to return his passport application and disclaimer forms and to provide evidence of identification.[37]On the 14th September 2011 the DR noted, “I agree that the case file should be gone through to make up an ETD application before the next review. We already have his expired passport number (2397485) on record and we could check his marriage certificate for his parents’ details.”[38]On the 24th October 2011 the defendant visited the claimant at Colnbrook and the claimant confirmed that he had completed the forms provided in April of that year.[39]On the 9th November 2011 the defendant’s caseworker confirmed that an ETD pack had been collected from Colnbrook but that the claimant had refused to sign the disclaimer. The claimant agreed to be interviewed and was advised to contact the Iranian embassy to obtain a travel document.[40]On the 22nd November 2011 the defendant contacted the claimant’s sister to confirm his identity.[41]On the 30th November 2011 the government ordered the closure of the Iranian embassy.[42]In December 2011 the detention review recorded that due to the closure of the embassy the ETD could not be submitted.[43]On the 3rd January 2012 the DR recorded that, “I have read through the case file and noted that there is a copy of the passport available for FH.”[44]On the 29th March 2012 the claimant’s solicitor sent a Pre Action Protocol letter.[45]On the 10th April 2012 GCID entry notes that “There is currently no Iranian diplomatic mission in the UK for us to refer ETD applications to.”[46]On the 13th April 2012 the CCD’s Strategic Director is recorded in the GCID notes as saying, “FH presents a significant and unquantified risk to the public if released. On this basis it is not my intention to agree to him being released at this stage. Can I ask that you contact FCO and seek to identify whether another embassy could assist us in securing as travel document.”[47]On the 23rd April 2012 the defendant responded to the PAP letter.[48]Proceedings were issued on the 15th June 2012. On the 22nd June the defendant filed an Acknowledgment of Service and agreed the claim was arguable.[49]On the 4th July there was a permission hearing. The defendant agreed to release the claimant from detention. Directions were given.[50]On the 5th July 2012 the claimant was released from detention.

Legal and policy background

[51]Section 3(5)(a) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the UK if the Secretary of State deems his deportation to be conducive to the public good. Paragraphs 2(2) and 2(3) of Schedule 3 to the 1971 Act provide the power to detain. They state, “(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality Immigration and Asylum Act 2002 (notice of decision) of the decision to make a deportation order against him, and he is not detained in pursuance of a sentence or order of the court, he may be detained under the authority of the Secretary of State pending the making of a deportation order. (3) When a deportation order is in force again any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the UK (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.”[52]It is for the Secretary of State to justify detention by pointing to a power to detain and to establish on the balance of probabilities that the power is being exercised for the purpose for which it was granted: Tan Te Lam v. Superintendent of Tai A Chau Deportation Centre [1997] AC 97 at 114 E.[53]The role of the court is to determine the legal boundaries of administrative detention. The court is required by virtue of section 6(1) of the Human Rights Act 1998 to decide whether or not the detention of an individual is compatible or not with his rights under Article 5 ECHR. Only by doing that can the court ensure it is acting lawfully. As Keene LJ said in R on the application of A v. SSHD [2007] EWCA Civ 804 at paragraph 74, “It cannot do that merely by asking whether it was open to the Home Secretary to decide that the length of detention was reasonable, as opposed to whether it was reasonable in the eyes of the court. The Strasburg jurisprudence indicates that it is not enough that detention is lawful under domestic law, though that is a requirement for compliance with Article 5. To comply with Article 5 it must be proportionate.”[54]Since the judgment in R v. Durham Prisoner Governor ex parte Hardial Singh [1984] 1 WLR 704 it has been accepted that the power to detain under immigration powers is subject to limitations. As set out at page 706, “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 the persons who are intended to be deported within a reasonable period, it seems to be that it would be wrong for the Secretary of State to exercise his power of detention.”[55]The case of R (I) v. SSHD [2003] INLR 196 refined the position further. Dyson LJ (as he then was) at paragraph 46 accepted that the following four principles emerged:
“1. The Secretary of State must intend to deport the person and can only use the power for that purpose; 2. The deportee can only be detained for a period that is reasonable in all the circumstances; 3. 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; 4. The Secretary of State should act with the reasonable diligence and expedition to effect removal.”
[56]That formulation was approved by the majority of the members of the Supreme Court in Lumba v. SSHD [2011] UKSC 12. Lord Dyson referred to the non-exhaustive list of factors that he had set out in I and stated that subject to certain qualifications their relevance had not been challenged. The first qualification that he considered was the relevance of the risk of reoffending. He held that it was a relevant factor whether it was linked to a real risk of absconding or by itself. In so holding he stated that the Court of Appeal in A was correct in adopting an interpretation which gave effect to the purpose underlying the power to deport and which the power to detain is designed to facilitate (at paragraph 108).[57]The other fact relevant in the instant case which was considered in Lumba is that of non-cooperation. Lord Dyson stated at paragraph 123, “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 dangers of drawing 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.”[58]And in paragraph 128, “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 in paragraph 51 of my judgment in I’s case, “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 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 I’s case (2003) INLR 196 and Keene LJ in A’s case The Times September 2007 and I agree with them.”[59]So far as policy is concerned a “presumption” of release has been contained in the Secretary of State’s published policy for many years. Current policy is contained in the document Enforcement Instructions and Guidance. During the detention of the claimant a revised version of the policy document was published on the 25th August 2010.[60]Relevant extracts are:55.1.1 General “In the 1998 White Paper, “Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum” it was made clear that the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would look at alternatives to detention.”55.1.2 Criminal Casework Directorate Cases “Case concerning foreign national prisoners – dealt with by the Criminal Casework Directorate (CCD) are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release. Thus, the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the deportation criteria) are met, the risk of reoffending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained provided detention is, and continues to be, lawful. However, any such conclusion can only be reached if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of reoffending and/or the risk of absconding.”[61]The deportation criteria are:• For non EEA nationals, those who have been convicted in the UK of a criminal offence and received: A single sentence of 12 months … Cases involving serious offences on the list at page 60 of the guidance are those where, “a decision to release is likely to be the proper conclusion only where the factors in favour of release are particularly compelling.” The list on page 60 includes offences of which the claimant had been convicted. Paragraph 55.3.2.1 provides, “further guidance on assessing whether detention is or continues to be within a reasonable period in CCD cases where the individual has completed their custodial sentence and is detained following a court recommendation, following a decision to deport, pending deportation or under the automatic deportation provisions of the UK Border Act 2007. It should be read in conjunction with the guidance at 55.3.1 above, with substantial weight being given to the risk of further offending and the risk of harm to the public. ”… “Where a time served foreign national prisoner has a conviction for an offence in the list below, particularly substantial weight, should be given to the public protection criteria in 55.3.1 above when considering whether release on restrictions is appropriate”.[62]Risk of harm to the public is assessed by NOMS which is based on the offender assessment system (OASYS) which consists of two parts, namely, risk of harm on release assessed as low, medium, high or very high and, secondly, the likelihood of re-offending assessed as low, medium or high. Paragraph 55.3.2.11 reads, “Those assessed as low or medium risk should generally be considered for management by rigorous contact management under the instructions in 55.20.5”.[63]Rule 9 of the Detention Centre Rules 2001 sets out statutory requirements for detainees to be provided with written reasons for detention at the time of the initial detention and thereafter monthly. Detention reviews are necessary in all cases to ensure that detention remains lawful and in line with stated detention policy.

The claimant’s case

[64]The claimant bases his case firmly on Hardial Singh principles.[65]The claimant submits that he is entitled to a declaration that his detention was unlawful:(i) Firstly, from inception for the entire 35½ months or 1080 days. That is because from the beginning of the claimant’s immigration detention it was apparent that removal of the claimant was impossible or all but impossible without the claimant’s co-operation. Even with the claimant’s full co-operation, removal was highly unlikely. As a result, the claimant’s detention under the power in schedule 3 to the 1971 Act, was unlawful.(ii) Secondly, and alternatively, on each occasion that the claimant’s detention was reviewed as the defendant failed to give adequate weight to the relevant factors set out in Hardial Singh, immigration detention became unreasonably long and unlawful.(iii) Thirdly, or alternatively, from two particular dates, namely: i) By the end of March 2010, detention had become unlawful and; ii) By 30th November 2011, with the closure of the Iranian Embassy, the detention became unlawful because by that stage it was demonstrably impossible to deport the claimant to Iran.[66]It is common ground that the principles in Hardial Singh apply. The defendant submits that the claimant’s immigration detention was lawful at all times. Miss Olley, on behalf of the defendant, submits that there were objective grounds for assessing that there was a reasonable prospect of removal of the claimant; that the claimant’s detention was not unreasonably long, in particular because(a) there was a risk of the claimant absconding;(b) there was risk of the claimant re-offending and(c) the claimant failed to co-operate with the defendant to effect his removal.[67]In the circumstances of this case, it is convenient to examine the claimant’s first ground and then deal with grounds 2 and 3 together to determine whether the claimant was detained for longer than a reasonable period on each of the relevant dates. Given the way the case has been put, that means going through each of the monthly detention reviews.

The approach

[68]As is clear from R on the application of A v SSHD [2007] EWCA Civ 804 (at paragraph 62) and R (MH) v SSHD [2010] EWCA Civ 1112 (at paragraph 67) the court’s task is to determine for itself the lawfulness of the detention in the light of Hardial Singh principles. It is not to determine whether the Secretary of State’s assessment at the outset and then from time to time to detain was one of Wednesbury reasonableness. As Toulson LJ said in A:
“Where the court is concerned with the legality of administrative detention, I do not consider that scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court recognises 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 linked.”
[69]In carrying out that exercise, it is right to apply an approach of anxious scrutiny. In dealing with the case of MH the Court of Appeal was considering a period of 38 months’ detention and said “detention for that length of time merits the most anxious scrutiny”. The period of administrative detention here is slightly less than that but it is still a lengthy period. I see no reason to take any different approach.[70]Further, I was not asked to determine whether, if the Secretary of State had acted unlawfully at any time, the claimant was entitled to damages for false imprisonment. My task is to determine whether the claimant was lawfully detained at the outset and, if so, whether his continued detention was lawful.

A reasonable period of time

[71]A useful first step given the nature of the argument is to determine whether and, if so, when there was a realistic prospect that deportation would take place. For detention to be lawful in accordance with principle (iii) of Hardial Singh, removal does not have to be a certainty or an inevitability. The courts have not defined any outer limits to the permissible period of detention. As Richards LJ said in MH v SSHD [2010] EWCA Civ 1112 at paragraph 65:
“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.”
[72]Inevitably, what is or is not a reasonable period of time will vary according to the specific facts in each case. What needs to be borne in mind is that each case will turn very much on its own facts.[73]How long is a reasonable period? In I at paragraph 48, Lord Dyson 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 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.”
[74]In Lumba, Lord Dyson referred to those factors and said (at paragraph 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 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.”
[75]What then is the relevance of absconding? As Simon Brown LJ said in I (paragraph 29):
“The likelihood or otherwise of the detainee absconding and/or re-offending seems to me an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainees would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee’s removal abroad.”
[76]But that obvious relevance has to be tempered. As Dyson LJ said in I (paragraphs 53 and 54):
“But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he or she will abscond.”
[77]In Lumba, Lord Dyson said, at paragraph 121, that:
“The risks of absconding and re-offending are always of paramount importance, since if a person absconds he will frustrate the deportation for which purpose he was detained in the first place.”
[78]Just as the risk of absconding and re-offending are relevant factors so, too, can be non co-operation with return as set out above. What is clear is that it cannot be used as a “trump card” and its relevance should not be overstated. It is always necessary to have regard to the fact-specific circumstances of the case in question.[79]Against that background, I turn to consider the general position in relation to removals to Iran before returning to the details of the claimant’s case in carrying out the necessary balancing exercise in relation to the initial detention and to each of the detention reviews.

Returns to Iran

[80]The claimant relies upon the case of MA, TT v SSHD and Secretary of State for Foreign and Commonwealth Affairs [2010] EWHC 2350 (Admin), a decision of Ian Dove QC sitting as a Deputy High Court Judge, which concerned the lawfulness of detention of two claimants from Iran. In paragraph 26, the judge quotes from a letter from the Foreign and Commonwealth Office dated 6th September 2010 which set out that there had been meetings between the UKBA, FCO and Iranian Embassy officials between June 2009 and April 2010 to discuss the processing of applications for ETD. Against the then deteriorating political relationship between the UK and Iran, it was observed that securing co-operation on the return of Iranian nationals had always been difficult and that the Iranian Embassy did not fully co-operate with UKBA or the FCO. Until June 2009, the Iranian authorities would not consider any applications for ETD without original documentation of the specified sort. Although in June 2009 the Iranian authorities indicated that they were prepared to relax their documentation requirements and permit photocopies of original documents or would sometimes consider ETD applications which were unaccompanied by any supporting documentation, the court concluded, at paragraph 33, that there had been difficulties in securing ETDs for Iranian nationals:
“There are very many applications made but a far more limited number agreed and, secondly, that the longer an application remains outstanding, the chances of it being approved rapidly diminish. Thus, whilst it is not unheard of for applications to be agreed over 18 months after they have been made, they are a tiny proportion of the applications made in total. Similarly, the evidence demonstrates that whilst it is not unheard of for an application for an ETD to be granted by the Iranian Embassy without supporting documentation, that appears to be unusual. Finally, it appears that by comparison with the statistical material available for the previous 10 years or so, the experience of the last 12 months has been that a significantly smaller proportion of applications have been agreed than has previously been the case.”
[81]The claimant submitted that since then there was no indication that things had improved. Indeed, the converse. On 30th November 2011 the Iranian Embassy had closed. In a witness statement of 24th January 2012, before the Divisional Court, in Lord Carlile of Berriew CBE QC v SSHD [2012] EWHC 617 (Admin), a senior civil servant with the F&CO described the position around the time of the closure of the Embassy as “Diplomatic relations were reduced at this point to the lowest possible level, short of severing them completely.”[82]As a result of an FOI request, redacted minutes of a meeting of 21st December 2011 about enforced returns to Iran have been supplied. A question was asked at the meeting as to how an Iranian would obtain assistance/ETD in the United Kingdom at that time. The response is recorded, “that there was no person authorised to provide such assistance, but that they could seek this from a mission in a neighbouring country”.[83]In a further redacted document dated 1st February 2012, which was a submission to ministers, it was said:(i) “Despite the historic difficulties in enforcing returns to Iran we have always argued that failed asylum seekers can take steps to return voluntarily by approaching their Embassy for the necessary documentation … This course of action is no longer available to potential support A reference to those applying for s.95 asylum support. applicants and we need to show an alternative.”(ii) “The safety of escorts is the key risk to the continuation of enforced returns. Our last escorted return took place on 20th December.”(iii) “The Iranian Embassy is closed for the foreseeable future (as instructed by the Secretary of State) and so far Iran has not proposed a third country to represent their interests.”[84]Mark Mathews, Head of the Iran Team in the Northern Gulf Department at the Foreign and Commonwealth Office, made two witness statements dated 23rd February 2012 and 7th December 2012 respectively. In the former (given in the context of a case involving another Iranian national), Mr Mathews confirmed that at the time of the closure of the Iranian Embassy diplomatic relations between the United Kingdom and Iran were reduced to their lowest level but were not severed completely. The Embassy remained closed and the FCO were pursuing arrangements whereby a third country could act on behalf of the UK in Tehran and Iran could propose another state to be its protecting power in the United Kingdom. By the time of his latest statement, Mr Mathews was able to inform the Court that Sweden had been appointed to represent the interests of the UK in Iran and Oman had been appointed by Iran to represent its interests in the UK. He continued, “If Oman is so tasked by Iran, it may be able to act in respect of, for example, the provision of Iranian travel documents”.[85]I was informed that Oman had, in fact, been appointed in late July 2012 and was not tasked with providing travel documents.[86]The defendant submits that it was open to the claimant to return to Iran voluntarily, and that before its closure, he could have gone to the Iranian Embassy. After the closure of the Embassy, there were other avenues which the defendant could and did pursue. It was submitted that it was reasonable for the defendant to wait for further developments after the Embassy closure, at least to some extent. By June 2012, the defendant had accepted that the claimant could not reasonably be detained.[87]Drawing those threads together, there were increasing difficulties in obtaining emergency travel documents for Iranian nationals in the period up until 30th November 2011 when the Embassy closed. Removals may have been less in extent than previously but the evidence is that some were taking place up to and including December 2011.[88]After the closure of the Iranian Embassy, what had been an increasingly difficult position became more so. Self evidently, no arrangement could be put in place immediately upon its closure and, in my judgment, it is reasonable to allow a period of time for any alternative arrangements to be in place. By late June/early July 2012, Oman was the country to help with arrangements but they were not tasked with providing travel documents. For a period of at least 7 months, therefore, from 30th November 2011 until the middle of 2012, no arrangements were in place to provide travel documents and none were made then. On 4th July 2012, the defendant agreed at the permission hearing that the claimant should be released from immigration detention. The defendant thereby accepted that the balance had changed in favour of release of the claimant. Ground 1 Was the immigration detention of the claimant unlawful from its inception?

Ground 1

[89]The claimant entered immigration detention on 21st July 2009. He had completed his criminal custodial term of 6 years and 6 months in total. The claimant remained in HMP Guys Marsh until 14th October 2010 when he was moved to HMP Elmley.[90]Whilst in custody for criminal offences, the claimant had applied for asylum, been through the appeal process and become appeal rights exhausted on 20th January 2009. The general computer information database case record sheets recorded his Iranian passport number as linked to his application for British Citizenship in an entry made on 20th April 2007.[91]As a result of that entry, on 15th November 2007, a sub file was requested to see if it contained any passport or indefinite leave to remain evidence. By 17th July 2008 the case notes read:
“Iranian passport missing since 21st January 2005, has no birth certificate or any supporting documentation to prove identity or nationality.”
[92]On 27th November 2008, the claimant’s application for parole was refused. The decision records the claimant’s OASYS assessment as indicating a medium risk of reconviction and a medium risk of harm to the public.[93]On the 8 December 2008 the Asylum and Immigration Tribunal promulgated its decision on the claimant’s appeal against certification that section 72(2) of the Nationality, Immigration and Asylum Act 2002 applied to his claim. It heard evidence from the claimant and his four children who supported his appeal. The focus of the appeal was the claimant’s claim under article 8 and his subsisting relationship with his children. The appeal was dismissed with the Tribunal finding that the claimant’s deportation was proportionate to the legitimate public aim sought to be achieved.[94]After the claimant became appeal rights exhausted on the 20th January 2009 the Deportation Order was signed.[95]On the 17th April 2009 HM Prison Service faxed the Criminal Cases Directorate saying that they had spoken to FH and he would not provide any Iranian documentation. They noted that FH refused to go to the Iranian Embassy as he feels that he will still be persecuted if he goes back to Iran or has any contact with the Iranian Embassy. The claimant denies any such conversation and therefore disputes the accuracy of the fax. I find it inherently improbable that a foreign national’s case administrator would have written in those terms had the conversation not taken place with FH as recorded.[96]On the 14th July 2009 a minute of the reasons of deportation was sent to the claimant. That recorded that the claimant had complied with immigration control since his arrival in 1979 but on the likelihood of removal and availability of travel documentation that the claimant refused point blank to co-operate in the documentation process. “It looks unlikely that he will be removed any time soon.” The proposal records, “FH has been convicted of very serious crimes for which he was sentenced to a total of 6 ½ years imprisonment. His offences range from assault occasioning actual bodily harm, destroying or damaging property, unlawfully evicting occupiers, using threatening/abusive behaviour, and threats to kill and several instances of the perverting the course of justice. Although he has a family here, the appeal determination of the 8th December found that the Appellant and his children would be able to maintain family contact should he be removed to Iran through the normal channels of international communication, also assessing the extent of the private and family life above recorded and measuring that against the seriousness of the offences committed by the Appellant as above recorded. We independently find that such interference with those rights caused by his deportation is proportionate to the legitimate public end sought to be achieved. There have been several representations from the Section Commander of the local Police saying that the subject should be deported and not released into the local community. The Commander has emailed me the following:
“FH, in anticipation of his release on 21 July 2009 is intending to return to the area and to collect money from those who owe debts to him” and that “things will hot up in the next few weeks.” “Consequently he is considered to be a risk to the public and, if released, most likely to commit further violent crimes and even abscond. There are no material compassionate facts to be considered, it is therefore proposed that he be detained until he be removed from the UK.”
That proposal was authorised.[97]The Oasys Report completed on the 16th July 2009 concluded that the claimant was a medium risk in the community and a medium risk of reconviction.[98]The claimant criticises the minute of the 14th July 2009. He states that it overstates the position, it makes no reference to the Oasys Report which was available and made no reference to the policy guidance which I have set out earlier. Further, the claimant disputes the contents of the fax of the 17th April 2009 the contents of which I have also set out above.[99]The claimant submits that it was clear that removal was not imminent. With the assessment of medium risk overall that meant, applying the defendant’s own policy, the defendant should have been thinking about release but with rigorous conditions. The mere fact of a history of serious offences cannot of itself give rise to a risk of re-offending. As for absconding there was nothing to suggest that the claimant was particularly prone. He had been in the United Kingdom for some 30 years, he had close family ties and he had conducted himself in an exemplary manner whilst in custody.[100]In addressing whether the immigration detention was unlawful at its inception the court has to ask whether there was some prospect of the claimant being removed within a reasonable period: R(Khadir) v SSHD 2006 1AC307 where the court considered a similar power of detention under paragraph 16 of schedule of the 1971 Act. As set out the task is for the court to assess in all of the circumstances.[101]In the summer of 2009 it is apparent that some removals to Iran were taking place. I do not have detailed evidence but such that I have, drawing on the statement of Mr Matthews and the findings of the court in MA, is such as to enable me to conclude that at that time and with appropriate travel documentation there was a sufficiently realistic prospect of the claimant being removed. I turn to deal with the other factors of non-cooperation, risk of re-offending and to a lesser extent absconding.[102]Taking each in turn. In itself the importance that can be attached to non-cooperation is limited.[103]Examining the risk of harm the defendant’s own policy was that those assessed as low or medium risk should generally be considered for “management by rigorous contact management under the instructions in 52.20.5… in cases involving serious offences on the list… a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate in exceptional cases because of the seriousness of violent, sexual, drug related or similar offences”.[104]Despite an overall assessment of medium risk of harm in July 2009 the additional case-specific factors here of representations from the local Police Commander, coupled with the serious criminal record of the claimant made it lawful to detain the claimant at that time. The Police Commander was fearful that there may be further criminal offences. Such a representation based, as it was, upon knowledge of the local circumstances of the crimes and the individuals concerned meant that the claimant’s case was one where there was legitimate concern about re-offending. In those circumstances it was justifiable to place those local concerns above the Oasys assessment. It is right that the claimant had been in the UK for 30 years, has adult children and has no history of absconding. However, the claimant had, as I find, refused to co-operate as evidenced in the fax of 17th April 2009, with the emergency travel document process. Standing back and carrying out the balancing exercise in July 2009 taking into account the relevant factors and mindful of the time that the claimant had spent in custody thus far, in my judgment, it was a reasonable and lawful exercise of the power by the defendant to authorise the immigration detention of the claimant. I reject the claimant’s submissions to the contrary.

Grounds 2 and 3

[105]I now turn to deal with the position at each of the detention reviews as I must given the nature of the challenge posed by the claimant. 2009 The record of the detention review of 14th August 2009 has under the heading likelihood of removal, “there is no prospect of FH’s removal from the UK anytime soon. He has refused to co-operate with the ETD process by refusing to provide any personal documentation like expired passport, Iranian ID card, birth certificate or driving licence to enable us to obtain a travel document for him.”[107]In the proposal reference is made to the representations from the local Police Commander and the local MP expressing their anxieties that FH will pose a serious risk to the public. The proposal was authorised with the following comment:
“I have considered the case based on the presumption of release. However, this FNP is a persistent offender whose release poses a serious threat of harm to the public. He is not suitable for release under the contact management scheme and I agree that he should be detained for 28 days in view of the risk of re-offending and absconding.”
[108]The first point to be made is that the detention review has to be read as a whole. The claimant relies upon the first sentence as to the likelihood of removal in particular. But, in context, it is apparent that the defendant was giving proper consideration to the relevant factors such as obtaining relevant documentation that was required to obtain ETD. In the summer of 2009 removals were taking place to Iran if deportees had the relevant documentation. There was thus some realistic prospect of removal. Further, FH had been convicted of serious offences which had resulted in a significant sentence of imprisonment. The receipt of local information from the Police Commander and MP meant that there was a basis to conclude that there was a real risk of re-offending by the claimant upon release. The local information warrants a different conclusion to that set out in the Oasys report as to the level of risk that the claimant represented of re-offending.[109]There was some risk of absconding. It is true that the claimant had not breached any bail conditions but he was a repeat offender with scant regard for the law as evidenced by his criminal record. He had not been co-operative in the removal process.[110]In all of the circumstances I find that his continued detention authorised in DR1 was reasonable and lawful.[111]By the time of the second DR there had been no material change in the prospect of the defendant being able to return the claimant to Iran. There had been no material change either in the factors which weighed against the claimant being released, namely, the likelihood of re-offending given his past record as the significant main factor together with the likelihood of absconding or non-cooperation with the authorities.[112]The same applies in the October review. There, it is noted that the claimant had refused to attend the Iranian Embassy for an interview further evidencing his lack of co-operation..[113]By the review in October 2009 the claimant had been sent an IS98A, an application for bail form, for him to provide his release address, details of sureties and the amount of recognisance offered. No response had been made by the claimant at the time of the review on the 9th October 2009. There was no material change in circumstance on either side of the equation to warrant me drawing a different conclusion on the balance of material factors as to the lawfulness of detention in October.[114]By November still no response had been received from the claimant on the bail form. It was recorded that there was no likelihood of the situation changing unless the claimant co-operated in the documentation process which he failed to do. The defendant was proposing to contact the ex-wife of the claimant to see if she was in a position to assist with the provision of documentation that would enable emergency travel documents to be obtained. Local factors adverse to the claimant’s release were still present. The risks consequent upon any release of the claimant remained. I find that it remained reasonable to continue to detain the claimant at this time.[115]By December no completed bail form had been returned by claimant and there were no other signs of co-operation from the claimant generally. Attempts to contact his ex-wife were continuing but had not borne fruit. Carrying out the balancing exercise I find that that the balance remained in favour of detention despite the presumption in favour of release because of the claimant’s extensive criminal record and local concerns about the effect of his release thus providing a basis for a real risk of re-offending supported by some risk of absconding and failure to co-operate on the part of the claimant. 2010[116]In January 2010 a case worker summarised FH’s conviction as of a very serious nature as shown in his combined prison sentence of 6 years and 6 months. Representations made by the local Police Commander and MP were again noted as was the presumption of release. It was noted also that the case was at stalemate because of the claimant’s refusal to co-operate with the travel documentation process. I can find no reason that at that time, the continued detention was anything other than necessary with the balance between the relevant factors remaining in favour of detention due to the predominant concern about the risk of offending upon any release.[117]By the 3rd February 2010 it was noted in the DR that the claimant had written to say he was detained illegally which was taken to be an application for temporary release and was under consideration. Attempts to locate FH’s wife had come to nothing. Authority to maintain detention was given but it was noted that whilst the claimant needed to attend the Iranian Embassy to sign a disclosure, the defendant could and needed to be doing things to progress matters. In my judgment, despite the presumption to release that was recognised, it remained the case that the continued detention was lawful given, in particular, the severity of the claimant’s criminal history and consequential risk of re-offending and the effect of that on the local community if he was released and the supplementary factors of lack of co-operation and risk of absconding.[118]In the March and April reviews it was noted that FH’s removal was not anticipated to happen at any time soon. It was recorded that there was no passport on file with the action point being to contact the Criminal Cases Directorate passport bank to see if they had any record (March). Although the claimant submitted that by now the claimant’s detention was unlawful, I reject that submission. There remained a realistic prospect of return to Iran. Although it may not have been within a definitely ascertainable timescale, the prospect was sufficiently real as to come within the circumstances set out in I. Further, there was evidence of a real danger of commission of further offences if the claimant was released. There remained some risk of absconding and non co-operation. By April it was said that efforts to obtain an ETD were ongoing. I find that the continued detention remained lawful balancing all the relevant material considerations which had not changed from the preceding month.[119]By the 1st May detention review the team leader noted that “FH was the subject of a signed deportation and was non-compliant with the ETD process. He had been offered FRS but has refused to accept. Case owner advised to investigate section 35 as a matter of urgency.” The continued authorisation noted “removal is not imminent, however, this is all of FH’s own making”. Efforts were still being made to discover documentation and the claimant remained un-cooperative. There had been no real change to warrant a different conclusion on my part as to the detention remaining lawful as the risks identified above and, in particular, that of re-offending remained such as to outweigh the presumption in favour of release.[120]By the next detention review on 25th May it was noted that efforts to obtain travel documentation were ongoing but the risks of absconding and re-offending continued to outweigh release. I conclude that the continued detention remained lawful. The risk of re-offending outweighed release and was supported, as before, by the factors of non-cooperation and some risk of absconding.[121]By that time the claimant had issued a county court claim in the Weymouth County Court against two UKBA staff concerning his ongoing detention. I deal with that claim at the end of this judgment.[122]In the June detention review it was noted that the case remained in abeyance awaiting co-operation from FH. An attempt had been made to interview him but he refused to turn up. In the authority to maintain detention section of the report it was noted that FH was at liberty to voluntarily return to Iran with or without FRS at any time and that FRS should be offered in an effort to encourage compliance. Efforts were still being made to repatriate the claimant so that there remained some realistic prospect of his return whilst the severity of his criminal record and risk of re-offending plus the supporting factors set out previously meant that the balance remained in favour of detention.[123]In the reviews of July, August and September efforts to obtain travel documentation by the defendant remained ongoing but it was noted that there was no co-operation from FH if a face to face interview was suggested. His lengthy detention was said to be due to his non-compliance and he could return voluntarily to Iran. By the summer of 2010 the defendant was thus aware of the duration of the detention but was expressing the view that it was self-inflicted. Rigorous contact management was considered on release but the seriousness of FH’s criminal offences made it such that he was unsuitable for release on such conditions. The extent of FH’s criminal record coupled with the local concerns about re-offending meant that although detention was rightly recognised as lengthy it was still justified on the occasion of each of the reviews.[124]On the 21st September 2010 judgment was handed down in MA. The claimant submits that the judgment illustrates that it was becoming more difficult to return detainees to Iran. That is correct in that there were diminishing prospects of returns but there were still returns being made. In my judgement there remained some realistic prospect of return at that time.[125]At the next review on October 7 an interview was provisionally booked with the claimant in connection with section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for the 18th of the month. The claimant’s detention continued to remain justified for the same reasons that I have set out above.[126]In the November review it was noted that a section 35 interview had taken place at HMP Elmley when the claimant said that he did not want to return to Iran. There was to be another follow-on interview. That had not occurred by the time of the December review. By that time the local MP had requested an update which the defendant responded to by advising that efforts were continuing to be made to obtain travel documents but that matters were being held up due to the lack of co-operation by FH.[127]In relation to each of the above reviews at the end of 2010 there was some evidence of effort by the defendant but, although the claimant had attended the section 35 interview, he had made it clear that he did not want to comply with requests made of him. There is nothing to change my judgment that it remained lawful to continue to detain the claimant at this time due to his criminal history and likelihood of re-offending outweighing the presumption in favour of release. There remained the supporting factors of risk of absconding and non co-operation. 2011[128]In the January detention review it was noted that the follow-on interview had not happened but an update was being sought. On 18th January the defendant had received from the detention custody manager at Colnbrook IRC a protected information report which said, “resident is on single occupancy in STHF due to previous history of ABH, he states that he has a short temper and might harm his room-mate.” Detention was authorised to continue on the same grounds as before.[129]It seems to me that the additional information from the detention custody manager underlines a conclusion that FH remained a potentially violent person who, in adverse circumstances, would be likely to re-offend in a manner that could cause serious harm to the public. It correlated with concerns expressed by the local Police Commander and MP. Continued detention remained justified.[130]At the next detention review there was still no follow-on from the section 35 interview and uncertainty was expressed as to whether such a follow-on interview was viable. Detention was noted to be prolonged by non-compliance. Although the report was in error in saying that FH did not have a close relationship with his relatives, weight was given to the nature and gravity of the offences for which he had been convicted as outweighing the presumption in favour of release. The point about the claimant’s non-compliance was repeated. Overall, the strength of the case to detain the claimant remained, in my judgment, due to the risk of re-offending in particular.[131]In the March review circumstances remained as they had been in February save that the position on the section 35 prosecution was to be considered at the next ITD surgery at the end of the month. The report notes that the detention was lengthy, which by now it was, but that it was caused by the claimant’s own non-compliance. The presumption to release was outweighed by the gravity and prevalence of FH’s previous convictions indicating a high likelihood of re-offending and harm that may cause as well as some risk of absconding. By this time there was a growing awareness of the length of FH’s detention but, in my judgment, the balance had not yet tipped such that the presumption to release overcame the disadvantages posed by the claimant’s criminal record and the consequences in terms of re-offending.[132]In April FH is recorded as saying that he would like the defendant to make arrangements for his return to Iran as soon as possible. As a result, the travel documentation application forms were sent to FH for him to complete. It was hoped that he would sign and complete them. In my judgment, at that time it appeared as if the previous impasse had been removed and travel documentation could be forthcoming. Continued detention for the reasons of re-offending and supported by the risk of absconding was justified.[133]In the May review it was noted that FH had been served with the Iranian passport application disclaimer forms on April 27th but nothing had been received back from him. The plan of action was to chase up FH for completion of the forms. By that time, although detention was justified on the same reasons as in April, there was an increased hope and prospect of his return to Iran.[134]In the June and July detention reviews it was noted that the passport application forms and disclaimer had still not been returned. The claimant’s case had been discussed at a case surgery when it was recorded that section 35 action could not be pursued. The plan of action included that an ETD interview be requested. The continued authorisation to detain recognised that removal was a difficult prospect but the risk of absconding and high risk of harm to the public continued to outweigh the presumption of liberty. It was still possible for action to be taken to facilitate a return by progressing with the ETD interview. Although the length of detention was of some order, in my judgment, it was still justifiable to detain FH on Hardial Singh principles because of his extensive criminal record and the potential consequences to the local community of re-offending together with some risk of absconding.[135]In August it was noted that the claimant had been seen with a view to an ETD interview when he said that he had provided all the information that he had and knew nothing further given the length of his absence from Iran. Although the claimant had expressed a wish to return, the conclusion was that he continued not to co-operate in its facilitation. By that time there was, therefore, a return to non-compliance by FH. In my judgment, continued detention was justified because of the gravity and nature of the offences that he had committed, the concerns of the local police and MP and because of the real risk of potential harm to the public through re-offending together with some risk of absconding.[136]In the September review the comment was that the case should be gone through to make up an EDT application. The expired passport number of the claimant had been found on record and his marriage certificate could be checked for his parents’ details. The entry continued “This case has attracted high level interest that FH should never be released in the UK at MP, Police and Local Authority level.” At the September review continued detention remained justified. It appeared as if the impasse had been removed and there were clear local considerations to justify concerns about re-offending if the claimant was released. There remained some risk of absconding.[137]In the October review carried out on the 11th October 2011 it was stated that no reliance could be placed upon FH’s claim that he would return to Iran. A further request was made on the 10th October 2011 for an EDT interview as the claimant’s passport photographs were required. Subject to the claimant’s compliance, it was held that there was a reasonable expectation of removal and that, taking in account the serious nature of those criminal offences, a further period of detention was reasonable. In my judgment, on the circumstances as they were on 11th October, continued detention remained lawful for the same reasons as in the preceding month.[138]On the 10th November review it was noted that the claimant had completed his bio data form, his disclaimer, his G7-1 Iranian questionnaire and the Iranian consulate form had been completed in Iranian. He had been advised to contact the Iranian Embassy to arrange his travel document. He was assessed as a medium to high risk of absconding to avoid deportation. Authorisation to maintain deportation was continued with a request that ETD were submitted direct. By that time there appeared to be the likelihood of movement in securing the removal of FH. The claimant criticises the assessment of the risk of absconding and it is difficult to know the evidential basis upon which the risk had been assessed. However, it remained reasonable to detain the claimant in view of his serious criminal record and the prospect of re-offending together with some risk of absconding.[139]On the 30th November 2011 the Iranian Embassy was closed. The claimant submits that that date is one by which detention was unlawful. It is right that for a period of time there was no immediate prospect of a return to Iran for the claimant. That period of time though was immediately after the closure of the Embassy when it was clearly reasonable for the defendant to make enquiries to examine what alternatives could be put in place in relation to returning Iranian nationals. There is a real issue as to how long a period of time it was reasonable for the defendant to have to make those enquiries. I examine that below. I reject the submission that, as from the date of the closure of the Iranian Embassy, the claimant’s detention became unlawful. Not to allow for enquiries to be made and alternative arrangements to be put or try to be put in place would clearly cause immense difficulties for the defendant of such an order as to be unreasonable.[140]On the 9th December the defendant carried out the next detention review when it was noted that the defendant was pursuing an alternative strategy to try to obtain documentation whilst the Iranian Embassy was closed. That demonstrates, in my judgment, that the defendant was being proactive and taking steps in a difficult diplomatic situation to obtain documents to secure the release of the claimant to Iran. I find that there was some basis for concluding that there was a realistic prospect of return and the claimant’s continued detention remained justified for the same reasons of re-offending in particular but supported by the risk of absconding. 2012[141]As a result of an FOI request made in February 2012, redacted minutes of meetings between the UKBA and FCO officials on the 20th December 2011 and a submission from the UKBA to Ministers dated the 1st February 2012 have been disclosed.[142]The minutes for the meeting of the 20th December 2011 show that a question was asked about how an Iranian could obtain ETD to which the reply given was that there was no person authorised to provide such assistance but they could seek this from a mission in a neighbouring country.[143]In relation to foreign national offenders, the minute recorded:
“UKBA continues to explore all possible options re documentation. Some FNO present a high risk to the public due to the serious nature of their crimes and UKBA would not release them unless all alternatives were exhausted.”
[144]In the submission to Ministers dated the 1st February, there were said to be three key reasons to support the continuation of enforced returns. They were:
“1. Detention There is no presumption to detain in criminal cases and detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal. When reviewing detention we take into account the prospects of removal in a reasonable timescale, the risk of harm posed to the public and the risk of absconding. Asked in criminal cases what constitutes a reasonable period may be longer than in other cases, depending on the facts of the case, if there were no realistic prospects of review in the foreseeable future we would not be able to detain… 2. Asylum intake (most of this is redacted) “Reduction in return numbers from an already [blank] is unlikely to have a significant impact on intake. 3. Asylum support costs … Despite the historic difficulties in enforcing returns to Iran we have always argued that failed asylum seekers can take steps to return voluntarily by approaching their embassy for the necessary documentation… . This course of action is no longer available to potential support applicants and we need to show an alternative.”
Under risks, it was noted that the safety of escorts was the key risk to the continuation of enforced returns, the last escorted return having taken place on the 20th December. The minute continued that the Iranian Embassy was closed for the foreseeable future (as instructed by the Foreign Secretary) and so far Iran had not proposed a third country to represent its interest.[145]In a witness statement dated the 23rd February 2012 in the case of K v SSHD Mark Griffiths, a Director with the Country Returns, Operations and Strategy within the Returns Directorate in the UKBA said:
“We continue to be able to remove to Iran where the subject holds a valid travel document, either a valid Iranian passport or a previously issued valid ETD.”
[146]The more up-to-date witness statement from Mark Matthews, Head of the Iran Team in the North Gulf Department at the FCO, makes it clear that subsequently the FCO has made arrangements with Sweden to protect the United Kingdom’s interests in Iran and Iran has tasked Oman to be its protecting power in the United Kingdom. However, I was told at the hearing that Oman had no instructions to deal with ETD.[147]On the 3rd January 2012 the next detention review recorded that ETD could not be submitted due to the closure of the Iranian Embassy in London. The action suggested was to ask the claimant’s brother in Iran to get a copy of his birth certificate and, on the strength of his expired passport, he could obtain a new one and to write to the claimant’s sister to obtain any relevant information from her. The recommendation was for detention for a further 28 days. It was just over a month since the closure of the Iranian Embassy and so still within a reasonable period, in my judgment, to ascertain what steps could be taken to make repatriation of foreign nationals within a reasonable period of time a realistic prospect. My findings on the claimant’s criminal record and likelihood of re-offending mean that the detention remained lawful.[148]The next detention review was the 24th February 2012. By that time:(1) the minute had gone from UKBA officials to Ministers on the 1st February;(2) there had been a meeting between the FCO and UKBA (as evidenced in the notes of the meeting of the 20th December 2012);(3) from the witness statements of Mr Griffiths and Mr Matthews, whilst efforts were being made to establish alternatives to the Iranian Embassy, nothing had in fact been put in place. No escorted returns had in fact been made for a period in excess of two months;(4) only those with valid travel documents were able to return to Iran.[149]The review recorded that FH was of medium risk of absconding. In the concluding section, however, it referred to his very high risk of further absconding. The basis for the change in assessment is entirely unsupported by anything in the documentation before me. In my judgment, by this time the claimant had been detained for some 31 months. He had complied with the request in relation to the bio data information and associated documentation albeit late on. Non-compliance could not, therefore, be realistically held against him. The real issue was how realistic was the prospect of his removal and the extent to which the risk of re-offending weighed against the presumption of release. The balancing of the factors was clearly changing. I do not accept that it was justifiable to describe the risk of FH as having a very high risk of further absconding without any evidential basis. There had been a period of two months within which to put in place an alternative strategy to remove those with no lawful basis to remain in the United Kingdom. But at this time nothing had come of that strategy. On balance, in my judgment, a short further time was justified to put in place an alternative strategy and so, in relation to the February detention, I regard the continued detention as lawful due still to the risk of re-offending if the claimant was released.[150]By the 26th March 2012 FH’s detention was noted as being lengthy and it was stated that:
“It is a significant factor that he has actively prolonged this by his continued failure to cooperate with the documentation process and that he has the ability to bring his detention to an end by voluntarily returning to Iran with or without FRS at any time. Previously, I have asked him to ask his brother in Iran to get a copy of his birth certificate (on the strength of his expired passport) he could obtain his passport.”
In the comment section it was stated that:
“given his non-compliance of the EDT process, it is considered unlikely to comply with rigorous contact management processes.”
[151]By this time FH had been detained for some 32 months. There was still no evident prospect of an alternative strategy coming into place for those who needed to acquire emergency travel documents. Late in the day the claimant had complied with the supply of information that was requested of him, namely in November, but efforts in that direction were frustrated by the closure of the Embassy. Despite references to the UKBA continuing to work with the FCO to pursue the provision of travel documentation no substantial particulars of those efforts have been provided to the court, and nothing had been put in place. By this time, in my judgment, a reasonable time had elapsed for an alternative strategy to be put in place so far as FH was concerned. Given the length of FH’s immigration detention, it was right to release him in accordance with the presumption and stipulate a rigorous contact management process. Given the claimant’s greater cooperation from November 2011, there was no basis to say that he continued to fail to cooperate with the documentation process and that he was unlikely to comply with rigorous contact management processes. I find, therefore, that from the 26th March 2012 the claimant’s immigration detention was unlawful.[152]It follows that the issue of damages will be deferred to a later hearing.[153]There remains the position with regard to the claim for exemplary damages as a result of the misrepresentation made to the court by the defendant by the Treasury Solicitor in the defence that was filed in the action in the Weymouth County Court.[154]Those proceedings are clearly entirely separate to the current ones. That claim was struck out as disclosing no cause of action. The defendant has apologised to the court for the error in the pleading. In those circumstances, whilst clearly a mistake was made in saying that there was no reason for the claimant to be detained, given that the claim was struck out as disclosing no cause of action, it does not seem to me to be a case where there is any real basis for a claim of exemplary damages. As a result, I do not find that the claimant is entitled to exemplary damages.