Rahman, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 1640 (Admin)

[2014] EWHC 1640 (Admin)

Case No CO/12822/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22 May 2014

Before

RHODRI PRICE LEWIS QC

(Sitting as a Deputy Judge of the High Court)

Between

THE QUEENClaimant

(on the application of SALIMUR RAHMAN)Claimant

SECRETARY OF STATE FORDefendant

THE HOME DEPARTMENTDefendant

Mr Graham Denholm (instructed by Messrs Wilson Solicitors LLP) for Claimant

Dr Christopher Staker (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing dates: 10 April 2014

Judgment

Rhodri Price Lewis QC :

Introduction

[1]In these proceedings the Claimant challenges the legality of his past detention by the Defendant on the grounds(a) that it lasted for a period that was unreasonable in all the circumstances,

(b) that it became apparent that the Defendant would not be able to effect removal within a reasonable period and

(c) that the Defendant failed to act with reasonable diligence and expedition. He seeks a declaration that his detention was unlawful for all or at least part of its duration and was in breach of

Article 5 of the European Convention on Human Rights

(“the Convention”). He seeks damages for false imprisonment and for breach of Article 5 and costs.

[2]Permission to bring this claim for judicial review was granted by Philippa Whipple QC, sitting as a Deputy High Court Judge, on the 13th June 2013. When the claim was issued on the 29th November 2012 the Claimant was in detention and continued to be so when the substantive hearing of the claim began before Collins J on the 3rd September 2013. After some argument before Collins J an adjournment was granted to enable consideration to be given to the release of the Claimant. On the 12th September 2013 it was confirmed by the Defendant that the Claimant would be released and he was released that evening with the Defendant allowing his temporary admission to the UK. A hearing before Collins J on the following day considered his release conditions and accommodation and an order was made addressing those matters and the future conduct of the claim. It has been accepted on the Claimant’s behalf that he has not complied with the conditions of his release. When the matter came before me on the 10th April 2014 I was told that the Claimant has still not complied with those conditions and is homeless but remains in contact with his solicitors.

The Facts:

[3]The facts are unusual in that very little is known about the Claimant’s true history. He is from the Indian subcontinent but has claimed to be unaware whether he is Bangladeshi, Indian or Pakistani. He speaks a number of the languages of the subcontinent and he speaks English. He has claimed that he arrived in the United Kingdom in about 1995 or 1996 when he would have been about the age of 13 although his actual date of birth is not known and that he was then found on the street by a Mr Aziz who took him in to live with his family. He has claimed to have little recollection of his childhood and no recollection of how he travelled to the United Kingdom.

[4]However, in 2007 an application for indefinite leave to remain in the UK was lodged on his behalf stating that he was Bangladeshi and that he had entered the UK on the 1st July 2001. He claimed that his return to Bangladesh would expose him to risk of inhuman and degrading treatment and punishment contrary to

Article 3 of the Convention

by reason of his political allegiances. The Claimant however later denied any knowledge of this asylum claim. There is no evidence of any lawful entry to the UK.

[5]On the 5th February 2010 the Claimant was convicted at Gloucester Crown Court of robbery and sentenced on that day to 15 months imprisonment. The circumstances of the offence were described by

the judge in his sentencing remarks as follows:

“You committed a robbery that took place at night and in a secluded area, and the events involving yourself and your victim took place over some minutes and it must have been very frightening for her. And, having put her in fear and taken hold of her clothing in a bit of a struggle, you stole promptly from her and left her shaken and alarmed. The aggravating features in this case are the time of night, the secluded location and the fact that you no doubt perceived your victim to be vulnerable to the threats that you made.”

He was given some reduction in his sentence for his plea of guilty which seems to have come late in the day.

[6]He was seen by officials of the United Kingdom Border Agency (“UKBA”) at Gloucester Prison on the 5th March 2010. He said that the basis of his application in 2007 was that as a non-believer his life would be in danger in Bangladesh but it seems he regularly attended Muslim prayers in prison. It was recorded that the Claimant met the criteria for automatic deportation under the UK Borders Act 2007.

[7]On the 4th May 2010 a notice of his liability to automatic deportation as a foreign criminal under Section 32 of the UK Borders Act 2007 was served on the Claimant. He completed a questionnaire in which he claimed to have arrived in the UK in 1995 /1996 but otherwise indicated that he had no recollection of any relevant facts. He gave no indication on the form that he came within any of the exceptions to automatic deportation and in particular he left blank the box where he could have indicated that his removal would breach his human rights or his rights under the Refugee Convention.

[8]On the 28th June 2010 a decision to detain the Claimant under Section 36(1) of the 2007 Act was made and it was recorded that “Given that he knows we intend to pursue deportation action against him and his poor immigration history it is proposed that there is little incentive for Mr Rahman to remain in contact with the Home Office if released…Mr Rahman is to be served with a deportation decision which may attract an in-country right of appeal. Subject to the outcome of the appeal and a signed deportation order is obtained Mr Rahman can be removed within a reasonable timescale… An Emergency Travel Document is required and according to Returns Group Documentation Unit guidance the timescale for issuing an ETD, with no supporting evidence is 3 months.” An “ETD” is obtained from the person’s home country or from the country to which he or she is to be deported where no other valid travel document, usually a passport, is available.

[9]On the 29th June 2010 the Claimant completed his prison sentence and he was detained under Section 36(1) of the 2007 Act. On the 1st July a Higher Executive Officer Team leader recorded:

“I consider him to pose a risk of public harm. He has an appalling immigration history and has provided conflicting information with regard to when he arrived in this country. He has also admitted to working illegally and the evidence suggests a very high risk of absconding if released. He has also provided conflicting information regarding the reasons why he fears returning to Bangladesh. An interview must be arranged urgently in order to establish if he still intends to pursue his human rights claim and if so, if he wishes to claim asylum.”

[10]That interview took place on the 26th July 2010. He did not provide any biographical information as he said he could not remember any. He was asked about the 2007 application for leave to remain in the country. He was asked why he feared return to his home country but he replied repeatedly simply stating that he had no family there. The grounds for claiming asylum were explained to him and he was asked if he feared return to Bangladesh for any of the relevant reasons which were explained to him. He said no to each reason and repeated that he did not want to leave the UK as he had no family any more and did not want to live in his home country on his own. He said that if he had family in Bangladesh he would definitely return there. He mentioned for the first time that he had a friend in the UK Mr Aziz, a British national, and that he wished to remain in the UK because he considered Mr Aziz to be his only family. He did not fill in the ETD form, saying he could not remember any relevant information except his name.

[11]Regular reviews of his detention were carried out for the rest of 2010.

[12]On the 10th January 2011 a decision was made which was characterised by Mr Denholm for the Claimant as bizarre in the light of what was said at the earlier interview: a further interview was arranged to consider the earlier human rights and asylum claim. That interview took place on the 13th January 2011 and at the end of it the Claimant signed a declaration in these terms:

“I, Salimur Rahman, now withdraw my application for asylum in the United Kingdom…I understand that, as a result, arrangements will be made for my removal to Bangladesh as soon as possible.”

[13]Regular detention reviews took place thereafter and on the 15th March 2011 he was interviewed again. He was vague in his answers but again mentioned Mr Aziz who he said had found him crying in the street when he first arrived in the UK and with whom he remained in contact. He gave Mr Aziz’s address in Bethnal Green, London.

[14]On the 31st March 2011 a detention review was carried out which recorded that “checks will now be conducted in relation to the above information obtained from Mr Rahman” which seems to be a reference to the information about Mr Aziz given in his previous interview. It was recorded that “a deportation order will be made shortly and will attract an out-of-country right of appeal.” By the 8th April 2011 the Assistant Director giving authority to maintain detention recorded:

“Mr R has a poor immigration history and has been convicted of an offence involving violence. He has changed his mind about applying for asylum which has delayed consideration of this case but we must now serve a decision without delay.”

Mr Denholm for the Claimant criticised the comment about the Claimant changing his mind about asylum given that the Claimant had consistently said in interview that he was not pursuing an asylum claim.

[15]On the 17th June 2011 the Claimant was served with a deportation order and its accompanying Decision Notice. This is very nearly a year after his detention began and some 15 months after he was first identified as being liable to automatic deportation. He had not expressly raised any claim in that period that he fell within any of the exceptions to automatic deportation.

[16]Thereafter attempts were made to contact Mr Aziz through the Safer Neighbourhood Police Team for his home area in Bethnal Green. The first contact with the police seems to have been made in September or October 2011 some 7 months after the Claimant had first provided Mr Aziz’s address. The police never did speak to Mr Aziz. The purpose of contacting Mr Aziz seems to have been to seek information about the Claimant that would be helpful in obtaining an ETD.

[17]On the 20th December 2011 the Claimant was refused bail by a judge of the First-Tier Tribunal who was satisfied that there were substantial grounds for believing that if granted bail the Claimant would abscond. The reasons the judge was so satisfied included his immigration history, that by reason of his offence - the seriousness of which the Claimant attempted to minimise before the judge - he continued to represent some degree of risk to the general public, that he had not been cooperating with the process of removal and that he was strongly motivated to remain in the UK illegally. The judge was satisfied that the Defendant was taking all reasonable steps to remove the Claimant as soon as possible and that his removal was therefore reasonably imminent and so pending removal his detention was both reasonable and proportionate.

[18]He was again refused bail on the 23rd February 2012 for the same reason with that Judge observing that “there has now been some progress towards obtaining travel documents” although it is not clear from the documents before me what that progress had been.

[19]On the 23rd March 2012 solicitors on behalf of the Claimant wrote to the Treasury Solicitor challenging the lawfulness of his detention. In reply on the 4th April 2012 the UK Border Agency asserted that the comments of the judges considering bail remained valid. They expected a report of the police interview with Mr Aziz by the 24th April 2012. No such report was ever obtained. On the 24th May 2012 the UK Border Agency wrote to Mr Aziz asking for background details about the Claimant. He replied on the 26th June 2012 stating that he was a close friend of the Claimant and had known him for about 14 years but that he did not know his country of origin and had no documents of his.

[20]Bail was refused again on the 31st August 2012 for essentially the same reasons.

The Judge remarked:

“Even taking into account some shortcomings on the part of the UKBA in terms of efforts to remove him, this is greatly outweighed by the applicant’s own uncooperative tactics. I am satisfied that UKBA are now active in efforts to remove him and a timescale for this has been provided so I consider removal to be imminent.”

I have not seen whatever timescale was provided to the Judge and more than another year was to pass before the Claimant was released.

[21]On the 4th September 2012 an application was made to the Bangladeshi High Commissionfor an Emergency Travel Document. This was some two years and three months after his detention had begun.

[22]On the 16th October 2012 the Claimant was interviewed on the telephone by the Bangladeshi High Commission but he did not cooperate, refusing to speak Bengali, saying he did not know which country he came from and claiming to suffer amnesia.

[23]On the 29th November 2012 the claim was issued in these proceedings.

[24]On the 17th December 2012 a planned telephone interview with the Bangladesh High Commission did not proceed because the Claimant said he could not speak Bengali.

[25]A planned face-to-face interview at the High Commission on the 17th January 2013 did not take place because escorts failed to pick up the Claimant in time.

[26]On the 11th February 2013 bail was refused again.

The judge observed:

“There is no evidence this applicant has ever had any right to be in this country. He has been convicted of a very serious criminal offence and is the subject of a deportation order. It is right that he has been detained for a substantial period following the completion of his sentence for that offence, not only because of difficulties in arranging documentation for his removal which I consider to be entirely self-inflicted. In effect he denies any involvement in an application he evidently made for leave to remain in 2007 which gave evidence as to his personal history, and now suggests he knows nothing of his origins. I do not find that in the slightest credible, and I find his denial of his background to be the clearest possible evidence of his deliberate and cynical lack of cooperation with the process of removal. For these reasons I find that there is a substantial risk that he would abscond if granted bail…In all the circumstances of the case, I consider the appellant’s continued detention pending the obtaining of travel documentation and his eventual removal to be reasonable, necessary and proportionate.”

[27]On the 26th February 2013 a face-to-face interview did take place at the Bangladesh High Commission during which the Claimant said he was Indian. On the 14th March 2013 the Commission agreed to consider the application for an ETD on paper but by the 25th April 2013 they were advising that they were unable to verify the Claimant as a Bangladesh national unless new evidence could be provided. For a short time consideration was given to making an ETD application on the basis of the Claimant being Indian but that was soon ruled out. On or about the 22nd May 2013 a letter from the Joy Bangla Forum UK which seems to be a Bangladesh community group claiming that the Claimant was known to the Bangladeshi community in the UK was presented to the High Commission. That letter is dated the 7th June 2012.

[28]On the 31st May 2013 the Claimant was interviewed in what is known as an “assertive interview” with a view to gaining more information about his identity but he became agitated and said he had nothing further to add.

[29]In a detention review dated the 12th July 2013 an “action plan” was recorded which included continued liaison on the ETD application and on the outcome of a proposed meeting that month with the Bangladesh High Commission.

[30]On the 14th August 2013, a month before the claim was due to come on for trial, a letter was sent to Mr Aziz asking for more information about the Claimant and asking whether Mr Aziz knew the Joy Bangla Forum UK. There does not seem to have been a response.

[31]The Claimant was released on the 12th September 2013.

The tort of false imprisonment and Article 5 ECHR

[32]In R v. Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 1 A.C. 58, 162C-D, Lord Bridge held:

“An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. In Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44, 54, Atkin L.J. said: "any restraint within defined bounds which is a restraint in fact may be an imprisonment." Thus if A imposes on B a restraint within defined bounds and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restraint imposed on B as lawful. A child may be lawfully restrained within defined bounds by his parents or by the schoolmaster to whom the parents have delegated their authority. But if precisely the same restraint is imposed by a stranger without authority, it will be unlawful and will constitute the tort of false imprisonment.”

[33]Detention for immigration purposes is imprisonment in fact. The issue in the present case is whether detention was unlawful for some or all of the period.

[34]

Article 5 of the ECHR

prohibits detention that is not in accordance with a procedure prescribed by law or is otherwise arbitrary: Article 5—Right to liberty and security 1. 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:(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Article 5—Right to liberty and security

[35]Under Article 5(1)(f) detention must be lawful so that a finding with respect to Article 5 goes hand in hand with a consideration of the domestic law governing unlawful imprisonment.

[36]The well-known principles enunciated by Woolf J. in R v. Governor of Durham Prison ex p Hardial Singh [1984] 1 W.L.R. 704, which explain the constraints on the Secretary of State’s powers of detention, were summarised in R (I) v. SSHD[2003] I.N.L.R. 196 by Dyson L.J. (as he then was):

“46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh[1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson inTan Te Lam v Tai A Chau Detention Centre [1997] AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment ... the following four principles emerge: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 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.”

[37]This formulation of the law was approved by the majority of the Supreme Court in R (Lumba) v. Secretary of State for the Home Department (JUSTICE and another intervening) [2011] 2 W.L.R. 671, per Lord Dyson JSC at paragraphs [22] to [25]. He held with regard to the first two principles derived from Hardial Singh:

“23 ... As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips PSC includes, at para 262, the following: “as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose ”

(emphasis added). The first principle is plainly derived from what Woolf J said. 24 As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible “within a reasonable period”. It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation.”

[38]In R (Mahfoud) v SSHD

[2010] EWHC 2057 (Admin)

Hickinbottom J gave a very helpful explanation of the Hardial Singh principles in seven propositions:

“[6] … (i) The power of deportation exists for the purpose of deporting the relevant person (‘the deporteee’) (ii) The power exists until deportation is effected: but it can only be exercised to detain the deporteee for a period that is reasonable in all the circumstances. (iii) Whist in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deporteee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the deportee must be released immediately. (iv) There is no red line in terms of months or years, applicable to all cases, beyond which time detention becomes unreasonable. What is “reasonable time” will depend upon the circumstances of a particular case, taking into account all relevant factors. (v) Those factors include: (a) The extent to which any delay is being or has been caused by the deportee own lack of cooperation in, for example, obtaining an emergency travel document (“ETD”) from his country of origin. (b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order). (c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur. (d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour. (e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order, including obtaining an ETD. That list of factors is not, of course, exhaustive. (vi) Any relevant factor may affect the length of time of detention that might be regarded as reasonable. Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative. There is no “trump card.”

Therefore even when there is a high risk of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee’s release. (vii) The burden of showing that detention is lawful lies upon the Secretary of State.” (a) The extent to which any delay is being or has been caused by the deportee own lack of cooperation in, for example, obtaining an emergency travel document (“ETD”) from his country of origin. (b) The chances that the deportee may abscond (which may have the effect of defeating the deportation order). (c) The chances that the deportee, if at large, may reoffend. If he may reoffend, of particular importance is, not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur. (d) The effect of detention on the deportee, particularly upon any psychiatric or other medical condition he may have. The conditions in which the deportee is detained may also be relevant, although less so if he is required to be detained in particular conditions (e.g. in prison estate as opposed to a detention centre) because of his own behaviour. (e) The conduct of the Secretary of State, including the diligence and speed at which efforts have been made to enforce the deportation order, including obtaining an ETD.

[39]In Lumba Lord Dyson JSC held at [121] that:

“The risks of absconding and reoffending 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.”

[40]The relevance of the deportee’s own behaviour and of any failure to cooperate was considered by John Howell QC sitting as a Deputy High Court

Judge in R (Sino) v SSHD [2011] EWHC 2249 (Admin) in these words:

“[56] In my judgment the significance of a detainee’s own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee’s own conduct to be disregarded. But equally it did not adopt an exclusionary rule that generally required the contribution that a detainee’s own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of an individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him”

[41]On this issue Irwin J observed in R (NAB) v SSHD

[2010] EWHC 3137

“[41] Faced with a recalcitrant person whom it is proposed to deport, the authorities can and should be free to make strenuous efforts to obtain the assent of the individual concerned. They can and should seek any way around his consent, for example by persuading his country of origin to issue travel documents without a disclaimer or any other indication of willingness on the part of the subject. But if no such action produces results, then, depending upon the facts of the case, it may be necessary for the authorities to face up to the fact that all the shots in their locker, if I may use that expression, have been expended. [42] What the law does not permit, it seems to me, is an indefinite detention of someone who is never going to consent to deportation, without taking all other steps that might be open, but merely sitting back without at least a plan to obtain the end of deportation.”

[42]In terms of the Secretary of State’s actions or inaction Carnwath LJ (as he then was) observed in Krasniqi v SSHD

[2011] EWCA Civ 1549

“To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained.”

[43]It is common ground that in considering the principles set out above, the Court should reach its own judgment as to whether administrative detention is lawful and should not simply adopt a review approach to the Defendant’s decision: R (A) v. Secretary of State for the Home Department

[2007] EWCA Civ 804

per Toulson LJ at [62] and Keene LJ at [74]. Toulson LJ held:

“It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).”

[44]It is also now common ground, in the light of the judgments in Lumba, that if I determine that detention was unlawful it is no longer relevant to consider whether in the circumstances S might otherwise have been lawfully detained. The majority of the Supreme Court rejected the “causation” principle which had been applied by the Court of Appeal although it may still be relevant to the question of damages if I find the detention to have been unlawful.

The power to deport

[45]Section 32(5) of the UK Borders Act 2007 provides that the Secretary of State “must make a deportation order in respect of a foreign criminal (subject to section 33)”. A foreign criminal is defined in section 32(1) and (2) as being, inter alia, a foreign national sentenced to a period of imprisonment of at least 12 months. Section 33 sets out a number of exceptions to the obligation to deport arising under section 32(5) including where deportation would breach a person’s Convention rights or the United Kingdom’s obligations under the Refugee Convention.

[46]So here the Claimant as a foreign criminal was subject to automatic deportation unless he came within one of the exceptions.

The power to detain:

[47]Section 36 of the UK Borders Act 2007 provides:

“(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 a 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.”

Paragraph 2(3) of Schedule 3 to the 1971 Act provides: “2. — (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).” (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 a deportation order.

[48]That the Hardial Singh principles apply albeit with some limited modification to detention under s.36(1) of the 2007 Act was confirmed in Hussein v SSHD

[2009] EWHC 2492 (Admin)

. In relation to principle (iii) Nicol J sais this at paragraph 44:

“No change is necessary to the formulation [in R(I)], but this principle will be infringed if detention continues even though it is apparent that either resolution of the question of whether any of the exceptions in s.33 is applicable, or any subsequent deportation, or both together, will take more than a reasonable time.”

[49]In relation to principle (iv), Nicol J. said:

“An analogous limitation to Dyson LJ’s fourth principle is clearly to be read into the s.36(1)(a) power, but some adaptation is necessary to reflect the exercise on which the Secretary of State is engaged. Of course, if none of the exceptions in s.33 apply and the automatic deportation obligation in s.32(5) arises and detention is continued under s.36(1)(b), that power will be subject to the implied limitations as formulated by Dyson LJ. The Secretary of State will then have to act with reasonable diligence and expedition to effect deportation. What is reasonable will no doubt take account of the totality of the period that the person concerned has spent in detention after the conclusion of his criminal sentence pursuant to immigration powers.”

The Claimant’s case

[50]It is pointed out on behalf of the Claimant that his administrative detention began on the 29th June 2010 and ended on the 12th September 2013 - a period of some 38 and a half months and a period that is some five times longer than the time he spent in prison for the offence of robbery and equivalent to the custodial element of a 6 year prison sentence.

[51]The Claimant submits that his detention has been unlawful for all or at least part of its duration because the Hardial Singh principles (ii), (iii) and (iv) have been breached in that detention was for longer than a reasonable period in all the circumstances, it became apparent that deportation would not be effected before a reasonable period would elapse and the Secretary of State failed to act with reasonable diligence and expedition.

[52]The Claimant relies particularly in seeking to establish not only the claimed breach of principle (iv) but also the breaches of the other principles on the alleged failure of the Secretary of State to act with reasonable diligence and expedition. He relies on three particular matters: a) that the Secretary of State took a full year to make a deportation order despite no protection claim being pursued; b) that she took a further 16 months to arrange an ETD interview despite having recorded that the timescale for issuing an ETD with no supporting evidence is 3 months; and c) that the sole investigation was in relation to Mr Aziz and although he was named in July 2010 and his address was provided in March 2011 he never was visited.

[53]The Claimant argues that if the Secretary of State had not delayed in these matters it would have become apparent very much earlier that his removal was not reasonably in prospect and he would have been released much sooner than the 12th September 2013.

[54]He accepts that the risks of absconding and reoffending are always of paramount importance but submits that they are not trump cards allowing unlimited detention and that those risks should not be exaggerated on the facts here.

[55]The Claimant himself has said he has not been in a position to cooperate because he cannot remember his own history but sensibly and realistically Mr Denholm on his behalf invited me to consider the facts on the basis that the Claimant has not co-operated with the authorities. I should have reached that view even without the invitation to do so and indeed I consider that it has been clear that the Claimant has sought to mislead the authorities. Mr Denholm pointed out that s.35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides that a person may be required to take a specified action if the Secretary of State thinks that the action may enable a travel document to be obtained and that document will facilitate the person’s removal. A person commits an offence if he fails without reasonable excuse to comply with a requirement to take specific action for the documentation process and if guilty may be sentenced to a maximum of 2 years imprisonment. Mr Denholm points out that it was decided not to prosecute the Claimant for such an offence and notes that the 2-year maximum imprisonment can be contrasted with the 38 and a half months spent in administrative detention by the Claimant.

The Defendant’s Case

[56]It is submitted on behalf of the Defendant that the period of detention has been at all times reasonable, that at no stage did it become apparent that removal would not be possible within a reasonable period judged as it should be on the basis of what was known at the time in question and that the Secretary of State acted with due diligence and expedition in seeking to remove the obstacles to removal.

[57]In particular it is submitted that the Claimant’s outstanding asylum claim at the time his detention began in June 2010 caused delay but this was dealt with expeditiously in the circumstances and in any event the obtaining of an ETD was the main barrier to his removal. It was the Claimant’s lack of co-operation in providing biographical information that caused the delays in obtaining an ETD. Faced with this lack of co-operation the Secretary of State was obliged to undertake her own investigations to establish the Claimant’s identity and these inevitably took time and had to rely on other authorities. It is submitted that the Secretary of State reasonably took the view that there was a hope that removal could be effected in a reasonable time. Delay by the Secretary of State in removing one barrier to removal could not be said to have contributed to the overall period of detention when there was at that time another barrier to removal in any event.

Discussion:

[58]Administrative detention for a period of 38 and a half months must be subject to very careful and anxious scrutiny by the court. I bear in mind however that Lord Dyson in Lumba considered the risks of absconding and of reoffending are of paramount importance in assessing the reasonableness and therefore lawfulness of a period of detention. At the start of his detention the Team Leader on his case took the view that ”the evidence suggests a very high risk of absconding if released” and immigration judges refused him bail in December 2011, February 2012, August 2012 and February 2013 because they were satisfied that there were substantial grounds for believing that if bail was granted the Claimant would abscond. The risk of absconding was material to the consideration of whether bail should be granted and is material to the consideration of whether or not detention has been lawful and in my judgment it is right that I should gave due weight to theses judges’ views as to the risk of absconding in forming my own views. Equally I am not bound by their views and I am entitled to look at the information before them and the information that is before me in deciding what weight I should give to their views. Those judges reached their conclusions on the basis of the Claimant’s lack of any legal right of entry to the UK, the inconsistencies in his accounts of his background and his lack of cooperation in the process of his removal. Evidence of all those matters is clear from the documents before me and I agree that throughout his detention there was a high risk that the Claimant would abscond if he was released. His failure to comply with the conditions of his temporary entry since his release in September 2013 supports the views that the judges expressed. Nevertheless I remind myself that the risk of absconding cannot be a trump card allowing continued detention regardless of all other considerations: see R (I) above at paragraph 53.

[59]In terms of the risk of reoffending, the offence for which the Claimant was convicted was a serious one with the aggravating features that the sentencing judge identified. In August 2010 the Secretary of State’s officials received a risk assessment in relation to the Claimant’s reoffending from the National Offender Management Service. That assessment gave the “risk of serious harm level” as “medium” and explained that his score on a scale which estimates the probability that offenders with a given history of offending will be reconvicted of a further offence within two years of release indicated a low risk of reconviction in those two years. The assessment itself however explained that this scale did not define the probability that a named offender would be reconvicted. A later report from the same source gave a 4% risk of reoffending within 12 months of release and 8% within 24 months of release based on the same scale. The author of the earlier report gave her assessment that releasing the Claimant without a suitable address might “significantly increase his risk of reoffending and risk of harm, due to the instability this would result in.”

[60]In my judgment the Defendant was right to approach this case on the basis that there was a real risk of the Claimant reoffending and that risk did not diminish as it became apparent that he was not cooperating and had no established base in the UK.

[61]With those risks in mind I turn to consider the steps the Defendant took to secure the removal of the Claimant and in particular those steps in relation to the matters Mr Denholm particularly relied upon, namely the time it took to make a deportation order in the light of the earlier asylum claim and the time it took to deal with the ETD and the extent of investigations into the Claimant’s background.

[62](i) The asylum claim: In 2007 an application was made in the Claimant’s name for indefinite leave to remain in the UK advancing an asylum claim on the basis that he was Bangladeshi. When the Claimant was seen in Gloucester Prison in March 2010 he told officials that the basis of his claim was that as a “non-believer” his life would be in danger from the Muslim community if he returned to Bangladesh. He said the application had been completed by his brother and that he was not too sure of its full content. In May 2010 when he filled in the “biodata” questionnaire he did not tick any relevant box claiming not to be subject to automatic deportation. In July 2010 it was decided that an interview should be carried out to see if he still intended to pursue his asylum claim. He was interviewed that month and claimed he did not want to return to his home country because he had no family there. He did not expressly withdraw his asylum claim. That withdrawal took place at his interview in January 2011. So he did change his mind about applying for asylum between March 2010 and January 2011. In my judgment in these circumstances it was reasonable for the Defendant’s officials to be cautious about treating the Claimant as not making an asylum claim. It would have been rash to treat the failure to tick a box on a form as amounting to a withdrawal of an asylum claim. In any event the process for obtaining an ETD had to be carried out and in my judgment the period from the start of his detention to the service of the deportation order in June 2011 was not unreasonable given that the asylum claim had to be considered and the ETD application had to be begun and pursued. The fact that the Claimant changed his story from being afraid to return home because of his lack of belief – a story which was contradicted by the observations of officials at the prison – to simply wishing not to return to a country where he had no family contributed to the time taken to pursue the necessary steps.

[63](ii) The ETD process: In my judgment it was mainly the Claimant’s own lack of cooperation which prolonged this process. He claimed not to remember any biographical details. He changed his story as to when and how he came into the UK. He even changed his story as to which country he came from and which languages he spoke. So the Defendant’s quite proper attempts to obtain biographical data from the Claimant himself were unsuccessful. I accept Dr Staker’s submission on behalf of the Defendant that it was reasonable for this to be the first step taken. The next step was to seek to obtain such data from Mr Aziz. The Claimant provided Mr Aziz’s name in July 2010 and his address in March 2011. The Defendant’s officials sought to contact Mr Aziz through the police because they saw that approach as the most likely way of obtaining relevant information. It turned out that the police were not helpful and this was a fruitless exercise. Again in my judgment this was a reasonable approach to take to begin with but as this approach failed to produce any useful results so the Claimant’s time in detention was prolonged.

[64]The next step was to seek an ETD from the Bangladeshi High Commission without any useful biographical data. Again it was the Claimant’s lack of cooperation which stymied this approach. In interview he refused to speak in Bengali. He claimed that he did not know which country he came from. He claimed to come from India. He claimed to suffer from amnesia. Nevertheless by March 2013 the High Commission were agreeing to consider the application for an ETD on paper. But by this time the Claimant had been in detention for some 2 years and 8 months. The only potentially relevant further “paper” that was available was a letter from the Joy Bangla Forum UK which had been sent nearly a year earlier, which did not provide evidence as to his nationality and which merely claimed that they “would very much like him to stay in this country as he is deeply integrated with the community.” It did not identify which community it was referring to. I agree with Mr Denholm’s submission that it was unrealistic to expect a High Commission who had not until then provided an ETD to be persuaded to do so by such a letter. It was recorded in the case record sheet that “as at the 25th April 2013 the High Commission are unable to verify this subject as a Bangladeshi national unless new evidence can be provided.” By then evidence had been sought for some 2 years and 10 months. In my judgment faced with an uncooperative Claimant and with no clear further avenues to pursue to obtain evidence it had become clear that there was no reasonable prospect of removing the Claimant within a reasonable period. It may be as Dr Staker submitted that the prospect of showing that a deportee may be removed within a reasonable period is not a high hurdle for the Secretary of State to overcome but I am satisfied that by the 25th April 2013 there was no prospect of removing the Claimant within a reasonable time and so his detention became unlawful under Article 5 and at common law. The fruitless efforts after that date by writing to Mr Aziz again and asking about his knowledge of the Joy Bangla Forum UK show how forlorn any hope of removal within a reasonable period was by April 2013.

[65]So even allowing for the serious risk of absconding and the risk of reoffending, in my judgment by the 25th April 2013 there was a breach of the second principle in Hardial Singh in that the period of detention was not reasonable in all the circumstances and a breach of the third principle in that by that date it had become apparent that the Secretary of State would not be able to effect deportation within a reasonable period. Up to that date the Secretary of State had acted with reasonable diligence and expedition to effect removal but by then she had expended all the reasonable shots in her locker. Up to then she had reasonably expended the shots available to her and delay had largely been caused by the Claimant’s lack of cooperation and indeed misrepresentations but by the 25th April 2013 she should have realised that the Claimant could not reasonably and lawfully be detained any longer and would have to be released. She did not reach that decision until the 12th September 2013 so for the period between the 25th April 2013 and the 12th September 2013 the Claimant was unlawfully detained.

Damages

[66]The unlawful detention of the Claimant gives rise to damages both at common law and by way of compensation under

Article 5(5) ECHR

, which reflects the common law position. There will need to be an assessment of damages in relation to the period of his detention which I have found to be unlawful. I see no reason to reserve that to myself and would propose an order releasing that assessment to a master.

Conclusion

[67]In conclusion, in my judgment, the detention of the Claimant was unlawful from the 25th April 2013 until his release on the 12th September 2013. Accordingly, both at common law and under Article 5 he is entitled to damages.