Giwa, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3189 (Admin)

Case No CO/6953/2011[2013] EWHC 3189 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 October 2013
Before
HIS HONOUR JUDGE KEYSER QCSitting as a Judge of the High Court
Between
THE QUEEN ON THE APPLICATION OF JOLAND GIWAClaimantTHE SECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
John Walsh (instructed by BHT Immigration Legal Service) for ClaimantJulie Anderson (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 17 October 2013
JudgmentH.H. Judge Keyser Q.C. :Introduction
[1]The claimant is a foreign criminal subject to the provisions relating to automatic deportation in the UK Border Act 2007. In these proceedings he seeks judicial review of his continued detention pending removal under the powers of detention in the Immigration Act 1971.[2]At the date of the hearing, the claimant had been detained pending removal since May 2009, a period of 53 months.[3]The claim was advanced before me on two bases: first, that the period of time for which the claimant had been detained exceeded what was reasonable in all the circumstances; second, that there was no realistic prospect of removing the claimant within a reasonable period. The contention that the defendant had not acted with reasonable diligence and expedition to effect the claimant’s removal was not pursued as a separate ground of claim, although matters relevant to that contention were raised in support of the claim that the duration of the detention was unreasonable. The claimant also did not pursue a claim that his continued detention was contrary to his rights under Article 5(1)(f) of the European Convention on Human Rights.[4]These proceedings were commenced on 20 July 2011. Permission to apply for judicial review was refused on the papers by Langstaff J on 5 August 2011. The application for permission was renewed at a hearing but was refused by Christopher Symons QC, sitting as a deputy High Court judge, on 13 December 2011. On the basis of the information before him, he considered that there was a sufficient prospect of removal to justify the claimant’s continued detention, having regard among other things to the risk that the claimant would re-offend or abscond if he were released from detention.[5]On 7 March 2012 Sir Richard Buxton refused permission to appeal, for substantially the same reasons as those given by the deputy judge for refusing permission to apply for judicial review. However, after an oral hearing on 16 July 2012 the Master of the Rolls granted both permission to appeal and permission to apply for judicial review and remitted the case to this court. He noted that the period of detention, then 37 months, was significant and that it was at least arguable that the prospects for removal had reached an impasse.

The facts

[6]The claimant says that he was born on 27 April 1989 and is now 24 years old. Whether or not that date of birth is precisely correct, it is not in issue that the claimant was about ten years old when he arrived in the UK, on a flight from Lagos, Nigeria, to Heathrow, on 28 December 1999 in the sole company his twin brother. On arrival the claimant and his brother were found to have no passports or identity documents. The claimant has always maintained that he believes he is from Sierra Leone. At the heart of this case lie the parties’ inability to prove what is his country of origin and the corresponding refusal of any country to recognise the claimant as its national and grant him travel documents.[7]On arrival in the UK the claimant claimed asylum. On 19 June 2000 that claim was refused but he was granted exceptional leave to remain for four years until 29 July 2004. The account given by the claimant at that stage is recorded in the Minute Sheet recording these decisions. “Mr G claims that his parents were killed in the civil war in Sierra Leone. He states that he was separated from his family while they hid in the bush from the soldiers. He managed to escape but was unable to seek protection because the civil war had caused a breakdown of law and order. He also claims that while he was in hiding he met a person who felt sorry for him. He claims that this person put him on a plane and told him to ask for help when he landed. Mr G landed in Heathrow TN3 on 28/12/1999 and applied for asylum on the same day. Mr G’s claim does lack detail, but his age has to be taken into account; to expect him to provide a statement on par with that of an adult is unrealistic.[8]On 14 July 2004 the claimant applied for indefinite leave to remain, and on 24 May 2005 that application was granted.[9]By the time he was granted indefinite leave to remain, the claimant had already come to the attention of the police. On 27 October 2002 he was formally reprimanded for two offences under the Theft Act 1968, and in July 2004 there was a report that the claimant had assaulted someone at the care home where he was resident; however, no charges were brought in respect of that incident. After he was granted indefinite leave to remain, the claimant received a series of criminal convictions. On 21 June 2005, upon conviction of handling stolen goods, he was made subject to a referral order for six months. On 28 February 2008, on conviction of a further offence of handling stolen goods, he was sentenced to a term of 21 days’ custody in a young offenders’ institution. On 7 May 2008, upon conviction on two charges of theft, he was sentenced to 2 months’ custody in a young offenders’ institution. One of the thefts was committed while the claimant was on bail. On 14 August 2008 he was convicted of an offence of robbery, and on 14 October 2008 he was convicted of a second offence of robbery. On 13 February 2009 he was sentenced for those offences to concurrent terms of 18 months and 27 months’ custody in a young offenders’ institution.[10]On account of a lengthy period spent on remand in custody before sentence, the date of the claimant’s release from custody under that latest sentence was 13 May 2009. However, the claimant was not released from custody on that date. On 24 April 2009 the claimant was notified of his liability to automatic deportation under section 32 of the UK Borders Act 2007. Accordingly, upon his release from youth custody the claimant entered immigration detention. On 18 June 2009 the claimant’s asylum claim was again refused. On 20 July 2009 the defendant made a deportation order under section 35 of the UK Border Act 2007. On that date also the claimant’s application for bail was refused.[11]The claimant appealed against the deportation order. In the course of the appeals process the defendant adduced evidence purporting to identify the claimant as a leading member of a Croydon-based gang called the “Don’t Say Nothing Gang” and to implicate him in criminal activities extending well beyond those for which he had been convicted and sentenced. I shall say more about these matters later.[12]On 9 December 2009 the hearing of the claimant’s appeal was adjourned.[13]Although it was not possible to deport the claimant while his appeal was pending, efforts to arrange his voluntary removal or to prepare for an eventual deportation continued. On 22 April 2010 the claimant was voluntarily interviewed by officials from the Sierra Leone High Commission, with a view to establishing his identity as a national of Sierra Leone and to securing the provision of an emergency travel document (ETD). The High Commission did not make an immediate decision on the case. A Case Record Sheet dated 7 September 2010 records:
“I have checked and agree with the proposal to maintain Mr Giwa’s detention. … Mr Giwa has an appeal against his deportation outstanding. He has been interviewed by the Sierra Leone High Commission and we are awaiting an ETD. Once Mr Giwa becomes appeals rights exhausted, he can be removed within a reasonable timeframe.”
[14]However, in October 2010 the High Commission informed the defendant that it did not accept the claimant as a national of Sierra Leone and would not provide ETD. A Case Record Sheet dated 25 October 2010 records:
“Sierra Leone High Commission have refused to issue the ETD. They have stated the following: ‘Sub has very little knowledge of the country because he left when very young, no knowledge of his parents, and the tribe he mentioned is not a Sierra Leone tribe.’”
Another Case Record Sheet of the same date records:
“Official [of the Sierra Leone High Commission] does not believe the sub to be a SLE national.”
[15]In November 2010 the claimant’s appeal against the deportation order was heard by the First-tier Tribunal (Immigration and Asylum Chamber) and on 30 November 2010 the appeal was dismissed. Later in this judgment I shall mention some of the evidence that was given to the Tribunal and some of the findings it made.[16]On 6 January 2011 the UK Border Agency (UKBA) received an email from the Foreign and Commonwealth Office (FCO), expressing the opinion that the claimant’s facial markings made it unlikely that he was Ghanaian and that he might be Togolese, Beninois or Nigerian. On 21 January the files were passed to a named individual, so that they might be reviewed before the case was referred to the Nigerian High Commission.[17]The claimant sought permission to appeal against the decision of the First-tier Tribunal. Permission to appeal was refused by the First-tier Tribunal and, on 2 June 2011, by the Upper Tribunal. That exhausted the claimant’s rights of appeal against the deportation order.[18]On 2 March 2011 the claimant was transferred, for security reasons, from the immigration detention centre where he had until then been detained to HMP Belmarsh, where he remains. The transfer followed the receipt of intelligence (which he disputes) that the claimant was involved in organising the importation into the detention centre of controlled drugs through the DSN gang.[19]A Case Record Sheet dated 18 June 2011 summarises the position as it stood at that point. “What we know so far about nationality: - We have a copy of a Sierra Leone birth certificate for his twin; [I note that there are what purport to be birth certificates for both the claimant and his brother. The origin of these documents is not known; the claimant and his brother had no such documents when they arrived in the UK. Officials from the Sierra Leone High Commission say that the documents are not genuine.] - We have a landing Card which shows that they flew in to Heathrow on a flight from Lagos, Nigeria; - The Sierra Leone authorities interviewed him face-to-face in London and rejected him although [name] says that that route is not still exhausted; - His photo with the so-called tribal marks on his cheeks was shown by FCO in Nigeria and concluded that he is not Ghanaian. Ghanaians tend not to have the cross marking on the face. Quite a few have suggested that he may be Togolese, Beninois or Nigerian.”[20]The claimant’s case was accepted onto the Nigerian “face-to-face” interview scheme. This occurred despite the fact that the claimant has always maintained that he is from Sierra Leone. Exploration of the possibility of Nigerian nationality was driven by the defendant, not the claimant.[21]One of the documents submitted on behalf of UKBA to the Nigerian High Commission for the purpose of gaining acceptance onto the interview scheme was a Bio-Data Information form, ostensibly signed by the claimant on 19 May 2011 and completed in manuscript. That form gave the claimant’s country of origin, and the place of birth of both of his parents, as Nigeria. This document was produced to the claimant’s solicitors in response to a request under the Data Protection Act. The claimant had previously signed Bio-Data Information forms that recorded his place of birth as Freetown, Sierra Leone, and his parents’ places of birth as also being in Sierra Leone. He has denied that he signed the form dated 19 May 2011. On 8 December 2011 a witness statement was made by Ms Angela Kyle, the Director of the UK Border Agency Criminal Casework Directorate, in respect of the disputed form. The statement contained the following paragraphs:
“This matter has been investigated by officials within my command. It has been concluded that the signed last page of a Bio Data Information form dated 19 May 2009 was appended to a new form completed by an as yet unascertained party. The date on the signed last page was changed to read 19 May 2011. This is a matter I regard as very serious and I confirm that the circumstances in which it occurred are now subject to an ongoing internal investigation.”
No further documentation or evidence was available by the time of the hearing. I was told by Ms Anderson for the defendant that the ongoing procedures have HR implications—presumably of a disciplinary nature—for the individual concerned. No other information was given.[22]At all events, on 30 June 2011 the claimant was voluntarily interviewed by officials of the Nigerian High Commission. On 1 July 2011 the Nigerian High Commission gave official notification that it did not accept the claimant as a national of Nigeria and would not provide an ETD.[23]On 14 July 2011 an official of the Nigerian High Commission explained its decision. It was said that the claimant’s tribal facial markings were uncommon in Nigeria and that, although his surname was West African, his first name was not. The official made it clear that, unless “compelling documentary evidence” of the claimant’s Nigerian nationality were produced, Nigeria would not be prepared to recognise the claimant as a Nigerian national or to provide him with travel documentation. He said that he was minded to believe that the claimant might be a Sierra Leone national and suggested that voice experts might be able to assist. It was agreed that a letter would be provided by the Nigerian High Commission in the interests of progressing the claimant’s case.[24]As I have said, these proceedings were commenced on 20 July 2011.[25]On 1 September 2011 Mr Richard Coy, a Senior Executive Officer in the United Kingdom Border Agency Criminal Casework Directorate, made a witness statement in these proceedings for the purpose of explaining “the current investigative strategy being undertaken to discover the correct nationality and identity of the claimant”. Mr Coy stated that, as there was no evidence other than the claimant’s own claim that he was from Sierra Leone, it was not intended to arrange an interview with officials of the government of that country unless further evidence were obtained. As well as consulting the police and social services for any information they might have, it was intended to obtain expert evidence from an expert in the field of tribal facial markings and from a named forensic voice and speech analyst. Mr Coy stated:
“When these investigatory steps have been concluded, all of the evidence of the claimant’s true nationality will be drawn together and set out in an evidential report. I or another member of CSIT will then serve the report on the relevant official at the relevant High Commission and present its findings orally to them. This is an approach that has successfully resulted in ETDs being issued in other cases where there has been a lack of documentation evidencing an individual’s nationality. In my experience it is possible for an ETD to be agreed at the time of the presentation or a few days thereafter.”
[26]A Case Record Sheet for 21 September 2011 records that a UKBA officer had visited the (Hillingdon) Social Services for the purpose of viewing files for the claimant and his brother in the hope of finding details that would assist with establishing their identity and nationality.[27]Meanwhile the defendant had been pursuing the claimant’s case with the Nigerian authorities. On 17 August 2011 and again on 19 October 2011 the matter was raised at meetings with the Nigerian High Commission. A Case Record Sheet for 15 November 2011 recorded that a letter had been sent to the Nigerian High Commission, “escalating” the case to the High Commissioner.[28]On 29 November 2011 the defendant obtained a report from an expert in West African culture. He had considered photographs of the claimant, showing the tribal markings on his face. The report expressed the certain opinion that the markings were not those of the Yoruba people and said that the markings were more likely to be traditional markings of the people in the middle belt of Nigeria.[29]On 4 January 2012 the forensic voice and speech analyst instructed by the UK Border Agency produced a report, which was based on analysis of the recordings of two police interviews of the claimant. The report noted that the claimant had absorbed into his speech much that was common to indigenous speakers of “south London English” and that this complicated efforts to detect his original linguistic origin. The report concluded:
“6.1 In my opinion, there was evidence of underlying patterns of rhythm and intonation in the speech of Joland Giwa which suggested influences from Nigerian English, rather than accents of English spoken in Sierra Leone. 6.2 I was not able to find phonetic or linguistic evidence in the speech of Joland Giwa that assisted in locating which area of Nigeria he might have originated from.”
[30]The experts’ reports were provided to the Nigerian High Commission. On 2 February 2012 the claimant attended a further “face-to-face” interview with officials from the Nigerian High Commission. The High Commission refused to issue an ETD. The reason given for the refusal, as recorded on a Case Record Sheet dated 3 February 2012, was:
“Subject claimed to be from Sierra Leone.”
[31]An internal memo dated 14 February 2012 proposed that an officer of UKBA liaise with the Permanent Under-Secretary of the Nigerian government in order to obtain an ETD to effect the claimant’s removal on 9 March 2012. It is not recorded whether anything came of that proposal. No removal directions were made. It seems likely that the memo was written in ignorance of the outcome of the meeting on 2 February 2012.[32]At that point, attention turned back to Sierra Leone. On 4 July 2012 the claimant was interviewed by Mr Alpha Kholifa Koroma, “chief immigration officer”, who was in the UK on a private visit from Sierra Leone. A Case Record Sheet records:
“Mr Koroma could not accept that there was sufficient detail to indicate Sierra Leonean origin. He suggested nationality was Nigerian, possibly Yorubian.”
[33]Communications continued, or resumed, between UK and Nigerian officials. On 1 August 2012 the case was again accepted onto the Nigerian “face to face” interview scheme. The case was raised at a meeting with officials of the Nigerian High Commission on 30 August 2012, when it was stated that the case was still pending in Nigeria. At a meeting on 6 September 2012, a Nigerian official stated that she had not received a response on the case but would chase the matter up with colleagues in Nigeria. A Case Record Sheet dated 28 September 2012 records:
“REFUSAL Nigerian High Commission have refused to accept the subject as a Nigerian national.”
Nigerian High Commission have refused to accept the subject as a Nigerian national.”[34]A Case Record Sheet dated 16 November 2012 reads:
“Case discussed with [name] on 15/11/2012, who stated that they have exhausted all avenues in regards to obtaining an ETD for Mr Giwa. Also on this date an email was received from [name] in regards to the JR against unlawful detention and that he proposed to complete a release submission unless we can put forward an update in regards to the ETD.”
[35]On 7 December 2012 the claimant made a bail application.[36]On 16 January 2013 the Home Office files were sent to Detective Constable Petrov, who had been involved in the proceedings before the First-Tier Tribunal, so that he could consider whether the contained any information that might assist in obtaining an ETD.[37]On 22 March 2013 an official from the FCO attended the offices of UKBA’s Criminal Casework Directorate in Liverpool in order to examine the claimant’s files and try to establish his nationality. On 25 March 2013 the official confirmed that she was of the opinion that the claimant was, as he claimed, a national of Sierra Leone; she gave UKBA reasons for her opinion (those reasons are not in evidence) and action points to be addressed with a view to confirming her opinion.[38]On 18 April 2013 UKBA made a request to Hillingdon Social Services for access to “the very first case files and caseworking notes” for the claimant. It is unclear whether those files were different from the files examined in September 2011.[39]On 29 May 2013 an “assertive interview” took place between an officer of UKBA and the claimant. The officer recorded that it was apparent that the claimant was becoming increasingly frustrated by his continuing detention, and that he was still adamant that he was from Sierra Leone and was ready and willing to return there.[40]On 12 June 2013 a Facilitated Return Scheme (FRS) leaflet was served on the claimant. The defendant says that the claimant refused to sign the FRS application form; on my understanding, this probably refers to an expression of interest form, though the point may not matter. The Case Record Sheet records that the claimant refused to sign the leaflet “as he states that he has received the same information before”. I note that the officer who interviewed the claimant on 29 May 2013 recorded:
“FRS was not explained to him as I believe he will already know about this …”
Before me, Ms Anderson said that the defendant’s present understanding was that the claimant was not willing to return voluntarily to Sierra Leone. It may be that this understanding arises from the failure to sign the FRS documentation. Mr Walsh told me that the claimant was willing to return.[41]On 10 July 2013 the Assistant Country Manager Africa 1, at the Home Office met with Mr Demba, the Head of Chancery at the Sierra Leone High Commission. Mr Demba noted that Sierra Leonean officials had already formed the view that the claimant was Nigerian. However, it appears that the contrary view of the Nigerian High Commission made him willing to accept a fresh application for an ETD and new evidence as to the claimant’s nationality and agree to send them to Mr Koroma in Freetown. In a statement made on 15 October 2013, Ms Anne Scruton, the Country Manager Africa 1, confirmed that Mr Koroma had agreed to consider the new evidence and that arrangements had been made for him to discuss the issue of an ETD and to conduct a further interview with the claimant on 22 October 2013, when he will be in the UK. Ms Scruton’s statement concludes:
“Relations with the Sierra Leone authorities are very positive and it is expected that if Mr Giwa is accepted as a national then he will be able to travel to Sierra Leone in short order.”

The claimant: character and risk

[42]Central to the points argued in this case is a consideration of the character of the claimant and the risk he presents of absconding or re-offending if he is released from detention.[43]As well as considering documentary evidence relating, among other things, to the proceedings before the First-tier Tribunal and several witness statements, at the suggestion of counsel I received oral evidence from two witnesses who have given statements on behalf of the defendant. Mr Walsh accepted that the opportunity to scrutinise and test their evidence in cross-examination addressed the concerns that lay behind his written submissions based on Article 5(1)(f); it was for that reason that he did not maintain those submission in argument before me.[44]When the First-tier Tribunal heard the claimant’s appeal against the deportation order, he was 21 years old and had been in custody or detention for about two-and-a-half years. The Tribunal received evidence from D.C. Petrov and from P.S. (now Mr) Darin Birmingham, who also gave evidence before me, relating to the activities and connections of the claimant both before and during his period in custody or detention.[45]The evidence and conclusions of the Tribunal appear from its Determination and Reasons dated 30 November 2010 and need not be set out here in detail. D.C. Petrov gave evidence of some 99 incidents of criminal or anti-social behaviour for which the claimant was said to be responsible or in which he was said to be implicated; these dated back in some cases to his adolescence. The Tribunal took what it rightly called an “extremely cautious” approach to the evidence, discounting large numbers of incidents as unsubstantiated even though it might have been thought that in many of them there were strong grounds for suspicion that the claimant was involved. In respect of seven incidents, as well as the two for which he was sentenced in February 2009, the Tribunal was satisfied that D.C. Petrov’s conclusions as to the claimant’s involvement were supported by the underlying evidence. At the hearing before me, Mr Walsh cross-examined D.C. Petrov concerning those seven incidents, all of which involved robberies on the street or on public transport. Having listened to the cross-examination and considered D.C. Petrov’s statement, I am satisfied that the Tribunal was entitled to rely on those incidents as it did.[46]The Tribunal concluded:
“We are satisfied that this Appellant has been involved in extensive criminal activity quite apart from the convictions which have been recorded against him. We agree with the Secretary of State that, taken in isolation, none of those incidents would be determinative. However, examined as a whole, we find that they do show that this Appellant is an individual who has been involved in criminal activity, with associates, within a gang structure …”
[47]Reference to the gang structure is to the claimant’s involvement with the DSN gang. Written and oral evidence in that regard was given, both to the Tribunal and to me, by Darin Birmingham. Mr Birmingham was deployed as a police sergeant to a unit that was created because of what he called an explosion of gang culture in the Croydon area in 2007/8. The gang culture had led to street violence, including stabbings and shootings and even murder. DSN had the highest profile of these gangs and the greatest propensity to cause violence. Mr Birmingham said to the Tribunal and repeated to me that the undisputed leader and self-proclaimed “general” of DSN was the claimant, whose street name was Dexter. In evidence to me Mr Birmingham said that the claimant was a “mover and shaker” in the gang world, controlling his patch through his “lieutenants”. Outside his patch, however, the claimant would have been at risk of his life, because he would have been a target for other gangs; gang members would therefore tend to travel in large groups when they went to other areas of London. Mr Birmingham said that the claimant had been a “cut above” the other gang members, in that he would never openly provoke or abuse police officers and would be respectful to him when he spoke to him. If, for example, Mr Birmingham told him to get his gang off the street, he would give the necessary instructions for compliance. The conclusion of his statement to the Tribunal, dated 11 May 2009, which was also in evidence before me, was as follows:
“Joland Giwa is a serious threat to the public and other young people, he has a clear propensity for violence and has convictions for burglary and handling. It is well known on the streets of Croydon that he has been charged with numerous offences but witnesses will not assist at court or pursuing allegations through fear. Giwa is the leader of the DNS and can call upon between 60-80 young men. This organised group have been responsible for the majority of the acts of violence upon the youths of Croydon in Croydon town centre. When I have spoken to him personally it is clear that his cultural background and beliefs are different and extremely worrying. He believes that it is right to carry weapons and knives and to use them on other young men. What makes him a leader and a man different from the others is his no fear attitude of confrontation and violence, his gang and young youths are scared of him, and his violent behaviour and readiness at any times to use knives and weapons.”
[48]A further piece of background evidence, both to the Tribunal and to me, was a YouTube film featuring the claimant (Dexter) and one Bill Langridge (Thai Kid). As a spectacle the film is quite alarming for its aggression; no doubt this is partly accounted for by its dramatic and linguistic affinity to “rap” videos. A fairer impression, less affected by aesthetic preferences, might be obtained from the transcript, helpfully provided by the Tribunal; my glosses are in square brackets. “Hi (inaudible) it’s Dexter here … I am DSN rep in Croydon. Croydon is our town so no more catch you in Croydon. Nobody can come to Croydon and say they are crew [gang]. Don’t come to Croydon and fucking say like, like man you got to be true OC. But don’t come to Croydon saying OCG you. You stupid or you fucking dumb. … You can’t come to Croydon on foot. Wherever you see me I am rolling on the roads, because I am racing the roads, I am rolling on the roads [apparently a reference to the practice of gang members of driving around their patch in cars]. Man you have to know it’s DSNG. Man I did play part in the beginning. Now I’m the fucking general. Man know this G. It’s a fucking real G. Man know this. Get me. Ask about DSN, who started it. I am the fucking general, say no more G. Fucking fuck, fuck pussy or your bum Shanker. You only shank [stab or cut] man in the bum (inaudible). I am a bad boy. I have shanked a man in the fucking head. I have shanked a man in the neck G. I saw him no. I was like Boom (inaudible). Remember you caught me and you tried to stab me in my head G. Me and Moodz [the claimant’s brother] started chasing him. My brother Moodz yeah. Big old Moodz yeah. So we caught him in the fucking grass. We caught him in the park. And I bottled his head. Shank, shank, shank him in the fucking head. You fucking, fucking. Man, you can try. All you can do is try. But me, I don’t try, I get you. Get me. I’ll get you. I’ll get you G. It is not (inaudible), it’s physically G. I’ll get you physically. DSN hold the evidence. Beef and Thai Kid is beef and me, ‘coz it’s called D (inaudible).”[49]The Tribunal received evidence that since his incarceration in 2008 the claimant had been visited frequently by associates from the DSN gang.[50]In evidence to the Tribunal the claimant admitted that he had been a member of the DSN gang for about a year, though he said he had not known it was called DSN when he joined it and that he had not been a member since 2007. He said that he was not responsible for making the YouTube film, which was heavily edited and gave a misleading impression. Further, it had been made when he was 15 years old (I was told that it was made in 2005, when the claimant would have been 15 or 16). He suggested that it had not been meant seriously; friends were making a film for a college course, and the film was by way of acting and imitation of the posturing of American gangster rap films. The tenor of his evidence as it appears from the Tribunal’s Determination was to minimise his involvement with the gang. Both the claimant and his brother, who also gave evidence to the Tribunal, said that they were determined to change their lives.[51]The Tribunal received evidence from a forensic psychologist, Lisa Davies. She said that past behaviour was invariably the best predictor of future behaviour and that this was true of criminal behaviour. Her assessment indicated that the claimant presented a moderate risk of engaging in violent behaviour in the future, and such behaviour was most likely to occur in the context of gang-related behaviour with criminal peers. She agreed that the claimant was at medium risk of reconviction. Ms Davies noted that the claimant tended to minimise his involvement in crime and in the DSN gang. Her report was based in part on the claimant’s claim to be in a subsisting relationship with his girlfriend, the mother of his children, although the Tribunal found:
“clearly that was not the case”
. She expressed concern that he continued to associate with previous acquaintances from the gang; if he could not refrain from seeing them when he was in custody, it was more likely that he would see them when he was at liberty. Under the heading “Exposure to Destabilisers”, her report had said that they were “partially present”, but in the light of evidence that the claimant had been visited by his former acquaintances she accepted that the correct classification was “present”.[52]D.C. Petrov said that in the course of her evidence to the Tribunal Ms Davies had upgraded her assessment of the risk posed by the claimant from moderate to high. The Tribunal’s Determination does not support such a strong conclusion. However, Ms Davies did accept that certain of the premises on which her report was based required modification, as already mentioned. Further, her report had identified ten circumstances under which the claimant would be at increased risk of engaging in violent behaviour:(i) membership of a gang;(ii) poor compliance with community supervision;(iii) contact with anti-social peers; (iii) using illicit drugs or alcohol;(iv) experiencing an increase in stressful life circumstances;(v) feeling isolated or bored;(vi) being provoked or challenged about being weak;(vii) lack or pro-social peer support or family support;(viii) lack of meaningful employment;(ix) loneliness;(x) desire for a sense of belonging. Evidence that the claimant was associating with acquaintances from the DSN gang and that his assumed relationship with his girlfriend was no longer existent would accordingly tend to indicate an increased risk of violent behaviour.[53]As Mr Walsh emphasised, much of the information relating to the claimant is historic. The claimant is still only 24 years old. The hearing before the Tribunal took place three years ago, when he was aged 21 years. He was last at liberty some five-and-a-half years ago, when he was only 18 years old (I am unsure of the precise date on which he was taken into custody on remand but I believe it to be in February 2008). The YouTube film was made when he was only 15 or 16 years old. Accordingly it is necessary to consider the evidence relating to the period since 2010.[54]D.C. Petrov gave evidence that “the vast majority” of the claimant’s social visitors at HMP Belmarsh have been known criminals. One of the visitors he listed, Anam Ruhul, had no known link to the DSN gang and I accept that he is probably involved in prison visiting for charitable reasons. The other most frequent visitor to the claimant also has no links to DSN. The following visitors are of relevance however.• Ishmael Lokko is, according to D.C. Petrov, a DSN gang member with convictions for, among other things, affray, robbery and assaulting a police officer. He visited the claimant three times in 2011 and again on 26 July 2013.• Ronald Ssuna is said to be a DSN gang member with convictions for shoplifting and possession of cannabis with intent to supply. He visited the claimant once in 2011 and again on 26 July 2013.• Jason Okigbo is said to be a DSN gang member with convictions for shoplifting and possession of cannabis. He visited the claimant on 7 September 2012.• Ketrio Mullings is said to be a DSN gang member with convictions for, among other things, affray, having a bladed article in a public place, attempted robbery, possession of a knife in a public place, possession of a prohibited weapon and possession of a Class A drug with intent to supply. He visited the claimant on 2 May 2012.• Curtis Bamfo is said to be a DSN gang member with convictions for, along other things, theft, assaulting a police officer, possession of Class A drugs, possession of an offensive weapon in a public place, possession of an imitation firearm in a public place, possession of a knife in a public place, possession of a pointed or bladed article in a public place, robbery and affray. He visited the claimant on 13 December 2012.• Patrick Kingonzila is said to be a DSN gang member with convictions for, among other things, robbery, burglary and theft. He visited the claimant on 26 July 2013 and, according to the claimant, on several other occasions.• On 1 November 2012 the claimant’s brother, Make Giwa, attended HMP Belmarsh to visit the claimant. He was arrested attempting to bring heroin and three SIM cards for a mobile telephone into the prison. He has since been convicted of offences in connection with these matters. As Ms Anderson submits, this rather belies Make Giwa’s evidence to the Tribunal about his intention to reform.[55]Through the witness statement dated 16 October 2013 of his solicitor, Ms Joanna Swaney, the claimant has commented on these matters. In general, he says that he has no control over or advance notice of his visitors, that he has not invited the visits mentioned by D.C. Petrov and that he has asked former associates not to visit him again. I do not find this evidence persuasive. It is quite likely, of course, that the visits were unsolicited and that, at this particular time, the claimant has found them embarrassing. But they are likely to indicate continued links to the DSN personnel. As in his evidence to the Tribunal, so now the claimant downplays his connections to the gang. Ms Swaney records that the claimant described Curtis Bamfo as “an acquaintance whom he knew from Croydon”. However, the list of incidents relied on by D.C. Petrov shows that they, with others, were together in a vehicle from which were thrown knives on 2 December 2006 (no charges were brought because it was impossible to say which of the persons in the vehicle had been in possession of the knives), and that Mr Bamfo was one of those jointly responsible for the robbery of which the claimant was convicted on 14 August 2008. Ms Swaney states that the claimant says that Mr Okigbo and he are “not close friends”, that he is “not aware” that Mr Lokko was a DSN member or that there was any connection between Mr Ssuna and the DSN gang. The claimant’s case is that Mr Okigbo and Mr Lokko visited him in the company of and on account of Mr Kingonzila, with whom he had shared a cell at HMP Belmarsh for a few months and who took an interest in the claimant’s problems. “Mr Giwa said that he was reluctant to make friends with other prisoners and that he did not want to see Mr Kingonzila again. He didn’t think there was any basis for friendship as Mr Kingonzila was older than him.” This sits uneasily with the claimant’s contention that he has had several visits from Mr Lokko and Mr Kingonzila together (paragraph 6 of Ms Swaney’s statement) and I am disinclined to give it credence. It seems to me more likely that D.C. Petrov’s conclusions are correct and that the claimant has retained links with former gang associates, which he now finds embarrassing in this litigation.[56]The following matters are also relevant.• D.C. Petrov gave evidence that a Facebook account has been created under the name “Dexter MoneyMan”. Although he said that he did not know when the account had been created, I understood his evidence to be that it has been created since the claimant was transferred to HMP Belmarsh. I was not persuaded that this was in fact a different account from the one mentioned in paragraph 30 of the Tribunal’s Determination, which relates to a period before the transfer to HMP Belmarsh. However, that account must have been set up after the claimant’s incarceration. Despite the claimant’s protestations that he would have no access to the internet while in custody, I consider it implausible that the Facebook account was set up without, at the very least, his knowledge and approval. This indicates that the claimant has actively identified himself with his DSN name since going into custody.• The claimant accepted before the Tribunal that he had been subject of three adverse adjudications while in custody at HMP High Down: one for possession of a mobile telephone; one for assault; one for possession of cannabis.• Detention records indicate that on 28 September 2009 the claimant was involved in an altercation with another detainee; it is recorded that the claimant used a broken pool cue as a weapon. No charges were brought. But on 5 October 2009 the claimant was moved from Dover IRC to Colnbrook IRC on security grounds. In March 2011 he was transferred to HMP Belmarsh after the receipt of intelligence linking him to an operation, said to be run by the DSN gang, involving the smuggling of drugs into Colnbrook. I have insufficient information to form a view in respect of that incident.• An internal report at HMP Belmarsh shows that on 22 July 2012, while a prison officer was moving the claimant from one cell to another, the claimant “charged aggressively at [the officer] and stretched out his hands in the direction of [the officer’s] chest in attempt to push [him]”, thereby making contact with the officer’s upper body. After the incident, the claimant is recorded to have stared into the officer’s eyes and said, “I will never forget this face. You will have to pay for this. You messed with the wrong person.” The claimant was punished for the assault with 14 days’ segregation. In Ms Swaney’s statement the claimant admits that his behaviour was unacceptable but denies that he threatened the prison officer.[57]In Ms Swaney’s statement the claimant maintains that he does not want anything to do with the DSN gang or the gang culture. He felt that he had the necessary support to abide by that resolution, not least in the form of Mr Martyn Langridge. Mr Langridge is the father of Bill Langridge, a.k.a. Thai Kid, as featured on the YouTube film and, holding a firearm, in a photograph within the defendant’s hearing bundle. It is impossible to tell from the photograph whether the firearm is real or imitation. But I was told, without demur, that Bill Langridge is currently serving a nine-year term of imprisonment for armed robbery.

The legal framework

[58]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.[59]Section 32 of the UK Borders Act 2007 provides, so far as is material to this case, as follows:
“(1) In this section ‘foreign criminal’ means a person— (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (4) For the purpose of section 3 (5) (a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”
Section 38 (1) provides that a reference to 12 months’ imprisonment includes reference to 12 months’ detention in a young offenders’ institution. Therefore the claimant is a foreign criminal. It is common ground that the defendant was under a duty to make a deportation order in respect of the claimant. (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies.[60]Article 5(1)(f) of ECHR provides:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
[61]The power to detain a person for the purpose of deportation is contained in paragraph 2 (3) of Schedule 3 to the Immigration Act 1971:
“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 detention of the claimant from 13 May 2009 onwards has been pursuant to that power and in accordance with section 36 (1) and (2) of the UK Borders Act 2007: “(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State— (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order. (2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.” (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.[62]A series of well-known cases, beginning with R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 W.L.R. 704, has established the limitations on the exercise of the power of detention under paragraph 2 (3) of Schedule 3 to the 1971 Act. In Walumba Lumba and Kadian Mighty v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 W.L.R. 671, Lord Dyson stated the relevant principles as follows at [22]:
“(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.”
[63]In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, where he had first offered that formulation of the principles, Dyson LJ (as he then was) explained the interrelationship of the principles and gave guidance as to their application:
“47. Principles (ii) and (iii) are conceptually different. 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. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 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.”
[64]The following particular points appear from the cases and are relevant for the purposes of this case. i) The existence of the power to detain is not subject to a requirement to show that the removal will happen soon. The word “pending” means “until”, and the power exists so long as the Secretary of State remains intent on removing the person and there is some prospect of achieving the removal. ii) However, the lawfulness of exercising the power to detain turns on the application of the principles set out in paragraph 61 above to the facts of the specific case. (R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, per Richards LJ at [37].) iii) There is no general limit on what is a reasonable period of detention. It cannot be said that such-and-such a period is, per se and viewed in isolation, reasonable or unreasonable. Each case is fact-sensitive. iv) In considering what is a reasonable period of detention, the risk of absconding is a particularly important factor, “since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place” (Walumba Lumba, per Lord Dyson at [121]). v) Similarly, the risk of re-offending is relevant to the reasonableness of the period of detention, both because it has a bearing on the risk of absconding and because the power to detain is ancillary to a power to deport those whose deportation is conducive to the public good. “If the reason why his presence would not be conducive to the public good is because he has a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure” (R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, per Toulson LJ at [55]; cited with approval in Walumba Lumba by Lord Dyson at [107-110]). vi) However, although there are no hard and fast rules as to what is a reasonable period, “there must come a time when, whatever the magnitude of the risks, the period of detention can no longer be said to be reasonable” (R (M) v Secretary of State for the Home Department [2008] EWCA Civ 307, per Dyson LJ at [14]). vii) There is no rule that, when considering the reasonableness of the duration of detention, the period during which an appeal against the deportation order was being pursued must be ignored. If the only reason for a lengthy delay is the person’s pursuit of an unmeritorious appeal, he can hardly complain that detention during that period was unreasonable. But the relevance of the appeal period to the assessment of reasonableness will depend on the facts of the particular case. (Cf. Walumba Lumba, esp. per Lord Dyson at [121].) viii) Lack of co-operation by a detained person with the deportation process may be relevant in a number of ways: it might indicate a high risk of absconding; it might mean that the person was himself significantly responsible for the length of his detention; and it might give the Secretary of State the impression that, if he were to co-operate, the person could facilitate his own prompt deportation. (Cf. R (MH) v Secretary of State for the Home Department, per Richards LJ at [68].) ix) When considering the third of Lord Dyson’s principles, the test, which has been expressed in various ways, is (as Mr Walsh submitted) whether there is a realistic prospect that deportation will be effected within a reasonable period. (Cf. Walumba Lumba, per Lord Dyson at [103].)

The claimant’s case

[65]For the claimant, Mr Walsh did not, upon mature consideration, submit that the statutory power of detention had not arisen or did not subsist. Accordingly it was accepted before me that the defendant remained intent on removing the claimant and that there was some prospect of effecting that removal. For the avoidance of doubt, I regard that concession as certainly correct.[66]Rather Mr Walsh made three main submissions. First, the period of detention exceeds what is reasonable in all the circumstances (Lord Dyson’s principle (ii)). Second, there is no realistic prospect of removal within a reasonable period (Lord Dyson’s principle (iii)). Third, the defendant has not acted with reasonable diligence and expedition to effect removal (Lord Dyson’s principle (iv)).[67]As to the third point (diligence), Mr Walsh submitted that there were three relevant periods of lack of due diligence:(i) from 22 April 2010 until 25 October 2010;(ii) from November 2010 until June 2011;(iii) from 3 February 2012 until late June 2012. However, he stated expressly that the claimant was seeking only a declaration as to the unlawfulness of his detention, not damages for wrongful detention. It follows that the alleged lack of due diligence is relevant only to the contention that the period of detention exceeds what is reasonable. As an enquiry into reasonableness requires the exercise of judgment in the light of all relevant factors and is determined by none of those factors, it is better not to consider diligence in isolation in this particular case.[68]As to the first point (reasonable period), Mr Walsh submits that, notwithstanding the claimant’s conviction of an offence serious enough to carry a 27-month custodial term and the defendant’s legitimate concern for the protection of the public from “the acknowledged risk of re-offending”, the time has come when the period of detention can no longer be said to be reasonable. In that regard, he observes that in R (MH) v Secretary of State for the Home Department Richards LJ referred to the case, which involved a 38-month period of detention, as an “anxious” one and said, “Detention for that length of time merits the most anxious scrutiny.” He points out that the claimant was in custody for only 13 ½ months by way of sentence for criminal acts but has thereafter been detained for 53 months awaiting deportation. He also points out that the application for an ETD in respect of the claimant has been rejected on five separate occasions by two High Commissions, most recently in September 2012, and that as long ago as November 2012 the defendant’s officials were privately acknowledging that they had “exhausted all avenues” with regard to obtaining an ETD and appeared resigned to the claimant’s release.[69]Mr Walsh supports those submissions with matters raised in connection with the second point, the absence of a realistic prospect of deportation within a reasonable time. He submits that it has been obvious since November 2011 that there is no such prospect. The defendant appears finally to have given up any thought of deportation to Nigeria, though not before the unfortunate creation of the Bio-Data Information form dated 19 May 2011. The evidence shows no likelihood of the claimant being deported to Sierra Leone; indeed, the defendant had formerly acknowledged as much: see the statement dated 1 September 2011 of Mr Coy. So far as concerns the forthcoming interview on 22 October 2013, this is with the very official who previously interviewed the claimant and formed the view that he was not a national of Sierra Leone. It is fanciful to suppose that he will change his mind and there is no good reason to suppose that he will do so. Something more than a mere hope was required to justify continued detention; cf. the remarks of Simon Brown LJ in R (I) v Secretary of State for the Home Department at [37].

The defendant’s case

[70]For the defendant, Ms Anderson submitted that in this particular case the period of detention was reasonable, though she accepted that the defendant was at or near the end of the permissible limit. First, until 2 June 2011 the claimant was pursuing his rights of appeal against the deportation order and the machinery of removal could not be operated. This had to be taken into account when assessing reasonableness, even though the earlier period could not simply be ignored. Second, the defendant had pursued the claimant’s removal with all the urgency that was consistent with the need for sensitivity in dealing with friendly countries. Third, and critically, the claimant presents a significant risk of offending and absconding and of harm to the public. If the claimant were to be released from detention, it was most unlikely that the planned meeting with Mr Koroma would proceed: first, because it was unrealistic to suppose that the claimant would turn up for it; second, because Mr Koroma would be unwilling to attend a meeting unless he had the assurance that the claimant would be present.[71]Ms Anderson submitted, further, that efforts to achieve the removal of the claimant from the UK were continuing and that there was a realistic prospect that those efforts would be successful. There was a significant level of co-operation and goodwill between the UK and Sierra Leonean authorities. The only thing required for the removal of the claimant was the approval of Mr Koroma. The decisive rejection by the Nigerian authorities of suggestions that the claimant was Nigerian, coupled with the similar conclusion of the FCO, meant that there was a genuine chance that Mr Koroma would not remain of the view he previously expressed. There was a realistic prospect that removal could be achieved soon.

Discussion and conclusions

[72]This is a troubling case. A period of 53 months of administrative detention pending deportation must be regarded as very long indeed, especially in the case of a man aged 24 years who was last at liberty when he was still aged only 18 years.[73]The period of detention is 53 months. It is not and cannot be some lesser period because of the appeal process in respect of the deportation order. In considering the relevance of the appeal process, it is necessary to bear in mind the principles set out above. What is in issue is not any absolute time limit but the reasonableness of the period that has elapsed. In some cases, a period of detention that initially appears excessive may, on consideration of the facts, be seen to be reasonable; perhaps because much of it was accounted for by the detainee’s pursuit of unmeritorious or abusive appeals. In the present case it has not been suggested that the claimant’s appeal, though ultimately unsuccessful, was hopeless or an abuse of process. The question how much significance (or “weight”) is to be attached to the period until that date is one of judgment on the particular facts; but “it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one” (Walumba Lumba, per Lord Dyson at [121]).[74]I attach considerable significance to the period of detention during the appeal process because, first, the appeal has not been said to be hopeless or an abuse of process and, second, the chronology set out above shows that the appeal did not entirely stultify the defendant’s efforts to put matters in place for a deportation; with the claimant’s co-operation it was possible to pursue matters with the Sierra Leone High Commission; see paragraph 13 above. On the other hand, these considerations are tempered to some degree by others. First, the fact remains that the claimant could not be deported while the appeal process was continuing, that is, until June 2011. Second, the findings of the First-tier Tribunal indicate that the claimant pursued his appeal on the basis of evidence that downplayed his involvement in criminal and anti-social behaviour and exaggerated, to the point of plain falsification, his personal and domestic ties to the UK, with particular regard to his relationship with a former girlfriend.[75]In addition to the length of the detention, I have regard to its nature since March 2011, when the claimant was transferred to HMP Belmarsh. Whether or not the claimant was in fact at fault in respect of the matters that led to his transfer—and I am not trying that question—he has not managed to mount a successful review of the decision to transfer him, and I proceed on the basis that the decision was lawful and reasonable. Even so, its effect has been that the claimant is subjected to a harder regime than would otherwise be the case and that he is subject to the controls and searches described in Ms Swaney’s recent statement. In circumstances where the claimant is not in custody for any criminal offence, these are matters that are relevant when assessing the reasonableness of the period of detention. I also accept that these matters have fed a sense of frustration that is anyway to be expected by the mere fact of the length of the detention.[76]I do not accept the claimant’s complaint that the defendant has failed to pursue his removal with reasonable diligence and expedition. On the contrary, I consider that the defendant by her officials has devoted very considerable efforts to achieving her desired end. Two points made by Ms Anderson have merit. First, the mere absence of recorded activity on the voluminous Case Record Sheets cannot fairly be taken to show that the claimant’s case was being ignored or overlooked. Second, there is a balance to be struck when dealing with friendly foreign countries. On the one hand, the appropriate channels have to be followed and if need be pursued; there is evidence of pursuit and chasing up on the defendant’s records. On the other hand, it may well be counter-productive, not to say insensitive, to chivvy the officials of a High Commission. It is always possible to examine a chronology and suggest that this or that could have been done more quickly or earlier. But I have not found any reason to criticise the conduct of the defendant’s officials for lack of reasonable diligence. I shall return later in this judgment to the question whether the time has passed when the defendant ought to have admitted defeat and recognised the practical impossibility of removing the claimant.[77]For reasons already explained, the risk that the claimant will abscond or re-offend if released is a factor of great importance in the assessment of the reasonableness of the detention. The main facts have been set out above and I shall deal with the matter briefly. In my judgment, the defendant has been entirely justified in coming to the view that the claimant presents a very significant risk both of absconding and of re-offending. His history of offending and involvement in gang culture, his continued connections with associates from that culture, the reasonable concerns raised by the available information concerning his time in detention and before that in custody, and his lack of truthfulness both before the Tribunal and, as appears likely, in the instructions to his solicitor as set out in her recent statement all tend to show that the risk of both re-offending and absconding is very real. Having regard to the expert evidence received by the Tribunal and to the risk factors identified by the expert, in the light of the facts as they appear to be rather than as the claimant has presented them, I think it proper to regard the risk of re-offending as greater than merely moderate. In the light of the evidence of D.C. Petrov and Mr Birmingham, I consider that if the claimant renews his association in society at large with associates from the DSN gang, there is a serious risk of violence, of which the claimant is as likely to be the victim as the culprit.[78]For the claimant Mr Walsh says that, notwithstanding the risk (the existence though not the size of which he accepts), the time has long since come when enough is enough and the detention is unreasonable. In my judgment, whether this is so depends on an assessment of whether, and if so when, the real prospects of deporting the claimant have ended. Mr Walsh submits that it was or ought to have been clear by July 2011 that deportation could not be effected within a reasonable timescale, as by then both the Sierra Leone and Nigerian High Commissions had refused to issue an ETD for the claimant. At the very latest, the point was clear by September 2012, when both Mr Koroma of Sierra Leone and officials of the Nigerian High Commission had again rejected the claimant’s case.[79]Although that case is a strong one and was urged powerfully, I reject it. The extent to which the defendant may lawfully continue to pursue her aim of deportation and to exercise her power of detention to that end depends on the particular facts of the case. The defendant has properly judged that the claimant presents a real risk to society and that it is in the public interest to attempt to remove him from the UK. This is relevant to the reasonableness of the period for which he has been detained and to the reasonableness of her continued efforts to surmount apparent obstacles to the claimant’s deportation. The problems in the present case stem from genuine difficulties in proving the claimant’s nationality. It seems that he must be from Sierra Leone or from Nigeria; no other plausible candidate has been identified. After long investigation, the defendant, with the assistance of the FCO, has concluded that, contrary to the views expressed by the officials of Sierra Leone, the claimant is from that country, as he has always maintained. Since the refusals to issue an ETD in June and September 2012, the defendant has persuaded the government of Sierra Leone to look at the case again.[80]The forthcoming meeting on 22 October 2013, when the claimant is to be interviewed by Mr Koroma, cannot be ignored. In accepting that the power to detain exists, Mr Walsh necessarily accepts that there is some prospect of achieving the claimant’s removal. Realistically, the best prospect of achieving his removal must be through the meeting on 22 October 2013. Unless it be said that the prospect of that meeting achieving a removal is not realistic (fanciful), there is as it seems to me a prospect of achieving the desired removal within a reasonable period. Mr Walsh accepts that Mr Koroma is unlikely to have agreed to the interview unless he is prepared to consider altering the view he has previously expressed.[81]In the circumstances, I am of the view that the period of detention to the date of this judgment is reasonable in the circumstances and that the exercise of the power of detention hitherto is lawful. I am also of the view that there is a realistic prospect that deportation will be achieved within a reasonable period, by reason of the forthcoming meeting with Mr Koroma.[82]It is right, however, that I make clear that in my judgment the detention has now been pushed to the limit of what is capable of being considered reasonable. The defendant has very properly pursued every avenue to removal and may achieve her goal in consequence of the interview on 22 October 2013. However, if the response of the Sierra Leone officials remains what it has been hitherto, then, absent some currently unforeseen turn of events, it is unlikely that the claimant’s continued detention will be reasonable or lawful for any longer period than is necessary for the purposes of assessing the consequences of Mr Koroma’s decision. On the basis of the information available at present, it is unlikely that that period would exceed three months from the date of the decision.[83]For these reasons, I dismiss the claim for judicial review.[84]It is my present intention to hand this judgment down on Tuesday 22 October 2013 in Cardiff. There is no need for the parties to attend on the handing down of this judgment. If all outstanding matters, including costs, can be agreed ahead of the hand down hearing, then a draft agreed order should be submitted for approval. If not, the outstanding issues will be dealt with either at a later hearing (if possible over the telephone) or in writing, as the parties consider best. I will extend the time for applying for permission to appeal so that period of time for making an application to the Court of Appeal for permission to appeal should not begin to run until I have dealt with any application made to me for permission to appeal at a further hearing or on paper.

Cited in 1 later judgment