Antonio, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 3894 (Admin)

[2014] EWHC 3894 (Admin)

Case No CO/9171/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 21/11/2014

Before

HIS HONOUR JUDGE BIDDER QC

Between

THE QUEENClaimant

(ON THE APPLICATION OF PAOLO ANTONIOClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Alex Goodman (instructed by Toufique Hossain, Duncan Lewis, Solicitors) for Claimant

Catherine Rowlands (instructed by Treasury Solicitor’s Department) for Defendant

Hearing Hearing dates: 28 th and 29 th October 2014

Judgment

His Honour Judge Bidder QC :

[1]This is an application for judicial review in which the Claimant claims a declaration that the Defendant was not entitled to make a second deportation order of the 9th July 2013 following the revocation of an earlier order, an order quashing that second deportation order and damages and/or compensation for false imprisonment alternatively for a violation of his article 5 rights in respect of his detention in whole or in part from September 2010 to November 2013. When the claim was issued the Claimant was detained but he was released on bail by an Immigration Judge on 13th November 2013 so that he no longer claims a mandatory order directing his release from administrative detention.

[2]In summary, the Claimant had been subject to a decision to make a deportation order (a decision made on 11th September 2008). A deportation order was made on 21st October 2008 under section 5 (1) of the Immigration Act 1971 on the basis that his presence in the UK was not conducive to the public good. That first deportation order was made under the EEA regulations, it being then believed by the Defendant that the Claimant was Portuguese. However, on the 28th September 2010 when he was deported under the first order the Portuguese authorities at Lisbon Airport refused him entry as they did not believe he was a Portuguese national. He was returned to the UK.

[3]The first deportation order was revoked under section 5(2) of the 1971 Act on the 18th October 2010.

[4]Investigations were then begun by the Defendant, who now believes that the Claimant is Jamaican. The Defendant contends that the Claimant has been deliberately deceitful about his nationality in order to evade deportation.

[5]A second deportation order, this time under the automatic deportation provisions of the United Kingdom Borders Act 2007, was made on the 8th July 2013. An appeal has been lodged against that second deportation order which appeal has been stayed pending these judicial review proceedings.

[6]The day before the first day of the hearing before me the Claimant served on the Defendant a letter seeking particulars of the powers under which the Defendant sought to detain him. As the basis for seeking those particulars underpins the Claimant’s arguments as to the illegality of his detention, I should first set out that primary case.

[7]The argument stems first from the famous dissenting judgment of Lord Atkin in Liversidge v Anderson

[1942] AC 206

. A request for particulars was made by the Claimant in the pleadings in his claim against the Secretary of State requesting details of the Secretary of State’s reasonable cause to believe that there was a necessity to control the Claimant. Lord Atkin said this at 245:

“The appellant’s right to particulars, however, is based on a much broader ground, a principle which again is one of the pillars of liberty in that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act.”

[8]More recently, the necessity for strict justification of detention was considered in R. v Home Secretary, ex parte Khawaja (H.L.(E)) [1984] 1 A.C. 74. In that case it was a condition precedent to the detention of the Claimant by an immigration officer that the officer had sufficient evidence on which to base a belief that the Claimant was an illegal entrant into the UK and their Lordships held that, on an application for judicial review of an order detaining the Claimant it was for the Executive to prove to the satisfaction of the court on the balance of probabilities the facts relied on by the immigration officer justifying his conclusion that the Claimant was an illegal entrant.

[9]Additionally, the Claimant relied on Lord Dyson’s speech in R (Lumba) v Secretary Of State For The Home Department

[2012] 1 AC 245

at paragraphs 64 to 66:

“Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned: see, for example, Murray v Ministry of Defence [1988] 1 WLR 692, 703A-B where Lord Griffiths refused to redefine the tort of false imprisonment so as to require knowledge of the confinement or harm because "The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."….. 65 All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. As Lord Bridge of Harwich said in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D: "The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it." 66 The causation test shifts the focus of the tort on to the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant's right not in fact to be unlawfully detained. There is no warrant for this. A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised.”

[10]Further in his judgment Lord Dyson cited his judgment in Langley v Liverpool City Council in which the Court of Appeal held a constable liable in false imprisonment where he had removed a child under section 46 of the Children Act 1989 where he could have removed the child under a different provision through the execution of a warrant. Thus, argued Mr. Goodman for the Claimant in the instant case, it is essential that the Defendant should precisely plead the statutory power for detention throughout the period.

[11]Thus the Claimant sought particulars to be precisely pleaded of how the Defendant sought to justify the admitted detention. The various grounds of claim and the grounds of defence had not resulted in the Defendant clarifying that nor had it been clarified in the skeleton argument for the Defendant served a week before the hearing. Hence the request for more detail. The particulars as sought in the letter were as follows:

“At paragraph 48 of the detailed grounds of defence (Supp Bundle page 558) and paragraph 22 of the skeleton argument (Supp Bundle Page 6040 the Defendant states “the Claimant was detained from his return from Portugal (28th September 2010) to 5th April 2011 only, before the Secretary of State came to the conclusion that section 32 probably applied and served notice of intention to deport under that provision.”

Our counsel understands this to mean that the Secretary of State relies on the power to detain in section 36 (1) (b) of the UK Borders Act 2007 from 5th April 2011 until 13th July 2013. (a) Is this correct? (b) Please therefore could you state definitively in each case which power is relied on as authorizing detention: (i) From 21st September 2010 (when the Claimant was detained) until return from Portugal on 28th September 2010; (ii) From 28th September 2010 to 5th April 2011; (iii) From 5th April 2011 to 13th July 2013; (iv) From 13th July 2013 to release in November 2013.”

[12]The Defendant responded by email indicating that it was “surprising and regrettable” that that matter had been raised at such a late stage in proceedings, particularly after the filing of skeleton arguments.

[13]It would, no doubt, have been much better had it not been necessary for those particulars to have been requested so late but, given that detention is admitted it must earlier have been recognised by the Defendant, that, in those circumstances, it is for the person detaining to justify the detention and to show that there was a power to detain and that that power was exercised properly. The Defendant should clearly have considered prior to detaining and at all times when the issue of continuing detention had to be considered, precisely what power was being used to detain and how that power should have been correctly exercised. I suspect that the problems which have arisen following the provision of answers to those requests for particulars indicate that insufficient consideration (if any at all) was given in the past by the officers in the Defendant’s department to the necessity at all times to be clear what power of detention was being used. The Claimant’s case is that that was not done and that the Defendant is unable to justify the detention.

[14]The answers given to the questions posed were given, on instructions, by Miss Rowlands, Counsel for the Defendant as follows, namely, that the statutory power of detention exercised by the Secretary of State, during various periods, were:a. From 21st September 2010 (the date when the Claimant was due to be released from his sentence of imprisonment) to the date of revocation of the first deportation order, namely, 18th October 2010, schedule 3 paragraph 2(3), Immigration Act 1971 (IA 1971);

b. From 18th October to 5th April 2011 (the date of service of a liability to deportation questionnaire (ICD 0350)), section 36 (1) (a) of the United Kingdom Borders Act 2007 (UKBA);

c. From 5th April 2011 until 11th July 2013 (the date of service of the second deportation order), section 36 (1) (b) of UKBA;

d. From 11th July 2013 until his release from detention on bail, schedule 3 paragraph 2(3) of IA 1971.

[15]Both the identity and the nationality of the Claimant are in dispute in this claim.

[16]His case is that he is a Portuguese national, born in Brandoa, Portugal on 27th May 1977. He maintains that his father, also a Portuguese national, was George Carlos Hugo Silva Antonio, born in Portugal and that his mother was Stella Yvette Wilson, who was a Jamaican national having been born in Jamaica.

[17]The Claimant’s case is that in February 1992, his mother arranged for him to travel to the United Kingdom to live with his aunt, Silvia Johnson, who lived in Willesden, London. The Claimant has lost touch with Ms Johnson.

[18]There is no corroboration of the Claimant’s claim to have arrived in the UK in 1992. He claims to have working in 2002 for Denso Manufacturing in Telford.

[19]On 27th June 2005 he was convicted of robbery, attempted robbery and 2 counts of having an imitation firearm. Those offences also included the use of a knife. On the 21st of July 2005 he was sentenced to 9 years imprisonment.

[20]There are inconsistencies in the various chronologies for the period after that date and some clear mistakes. I have based the following chronology on the one page chronology submitted at the hearing by Mr. Goodman, Counsel for the Claimant, to which no specific objection or correction was made by the Defendant’s Counsel, Miss Rowlands.

[21]On 6th October 2008 the Claimant was served with a Notice of Decision to make a deportation order (under the Immigration (Notices) Regulations 2003). As Mr. Goodman correctly points out, in the stages of the deportation procedure, the making of the decision to deport (on this occasion under the 1971 Act) by the Secretary of State, is an immigration decision under section 82 (2) (j) of the Nationality and Immigration Act 2002 which allows an appeal under section 82 (1) of that Act. Moreover, it is the making of the decision which then allows detention under schedule 3 paragraph 2 (2). In fact, the Claimant, who had told the Defendant that he was born in Portugal, waived his appeal rights in writing.

[22]On the 24th October 2008 the Claimant was served with the deportation order which was made under section 5 (1) of the 1971 Act bearing in mind the criteria in the Immigration (European Economic Area) Regulations 2006 (“EEA Regulations”), in particular, regulations 19 (5) and 21. The deportation order (core bundle (CB) page 287) makes it clear that the Secretary of State authorised the Claimant’s detention under paragraph 2(3) of schedule 3 to the 1971 Act.

[23]It is not in dispute that service of a deportation order is a condition precedent to the lawful exercise of the power of detention under paragraph 2(3) to schedule 3 to IA 1971 (established by a combination of R (Anufrijeva) v Secretary Of State For The Home Department

[2004] 1 AC 604

and R. (on the application of S) v Secretary Of State For The Home Department

[2011] EWHC 2120 (Admin)

, a decision of Mr. David Elvin QC.

[24]On 11th June 2010 the National Offender Management Service report showed that he had had three adjudications for drug use in prison and was assessed as presenting a high risk on release.

[25]On the 21st September 2010, as indicated above, the necessary portion of the 9 year sentence which the Defendant had to serve before release on licence expired but he remained detained in immigration detention.

[26]On 26th September 2010 he was deported to Portugal. However, the Portuguese authorities refused to accept he was a Portuguese national and returned him to the UK.

[27]On 30th September 2010 there is a minute of the decision to detain in which the author of the minute states that the Claimant was believed to be an EEA national. It indicates that, as such, he would not have been subject to immigration control on entering the UK though there was no evidence produced by him to prove he had entered the UK in 1992. The minute indicates that an IS.91 had been issued.

[28]The Defendant contends that she has made extensive investigations into the Claimants’ background which led her to the conclusion that the Claimant had lied about being Portuguese and also about having lived in the USA and having family there. I shall deal with those investigations later in my judgment.

[29]On the 18th October 2010 the Defendant revoked the deportation order pursuant to section 5 (2) of the 1971 Act. As noted above, the Defendant contends that the Claimant was then detained under section 36 (1) (a) of UKBA 2007.

[30]Is there any objective evidence to confirm that that was the case? Mr. Goodman refers to the detention reviews by caseworkers for the Defendant in this period. The first is at supplementary bundle (SB) 248 and is the first disclosed review, dated 7th January 2011. There is no indication in that review of the power under which detention has been authorised. That is also true of the next review, on 7th February 2011 (SB 255). Reviews predating January 2011 are at CB 376, 383 and 387. Again, there is no indication in any of those reviews of the power under which detention has been authorised.

[31]The next review is on the 5th April 2011. It should be noted that, on 5th April 2011 the Defendant wrote to the Claimant giving him notice that he might be liable to deportation. The 5th April 2011 is the end of the period on which the Defendant relies on section 36 (1) (a) of UKBA.

[32]At 259, at the end of the 5/4/11 review the comment by an Assistant Director is:

“At present, Mr. A’s case is in limbo as we have yet to establish his true nationality. A previous DO obtained on the back of an EEA decision has been revoked on the basis that he was rejected by the Portuguese authorities and a new decision cannot be served until we have established who he is and where he is from. Enquiries are ongoing in respect of this but we need to make greater progress.”

[33]At CB 245 is a copy of the letter of the 5th April 2011 served on the Claimant on the 6th April 2011. A complete copy was produced to me separately together with the questionnaire served with it. It indicates that the Secretary of State was “considering” the Claimant’s immigration status and his liability to deportation. The Claimant was told that if he felt there were reasons why he should not be deported he should submit them in writing to the Criminal Case Directorate of the UK Border Agency, completing the attached questionnaire within 20 working days of the notification. If he did not, the Agency “will decide the question of deportation on the basis of information known to us”. As Mr. Goodman points out, the conclusion from this letter is that no decision on deportation had at this stage been made.

[34]The questionnaire was never completed. The letter and questionnaire bear the reference ICD.0350.

[35]The significance of that reference may be derived from an email of the 19th December 2011 at SB 33 from a senior caseworker at the Criminal Case Directorate. The email is significant and reads:

“Having just spoken to …… she has been very helpful with some advice on the best way forward. Deportation action can be pursued under the 2007 Act. Firstly the subject is currently detained and was served with an 0350 under the 1971 Act in April 2011. This situation needs to be remedied immediately by the service of an 0350AD under the 2007 Act. We can then legitimately detain him under section 36 of the 2007 Act while we consider whether or not Automatic Deportation applied to him. It may also give us some information on the subject’s nationality.”

[36]Mr. Goodman stresses the use of the word “then” before “legitimately” in the email. This is the first time in the disclosed material that there has been any reference to section 36 of the 2007 Act and is the clearest possible evidence that, contrary to the Defendant’s case at this hearing, that for the period from 18/10/2010 to 5/4/11 the Secretary of State was not detaining under section 36 (1) (a) and that, in fact, the Secretary of State, through his officials, believed the detention still to be authorised under paragraph 2 (3) of Schedule 3 of the 1971 Act, despite the revocation of the deportation order on the 18th October 2010. It is very obvious that the cause of the detention under the wrong provision was not any deceit by the Claimant because the Defendant was aware that the Portuguese authorities did not accept he was Portuguese, but rather, the failure of the Defendant’s officials to consider what authority they needed to detain the Claimant once the deportation order was revoked.

[37]It is equally clear from the email that the Secretary of State, through his officials, cannot, as at 19th December 2011, be yet of the view that the automatic deportation provisions of UKBA 2007 actually apply to the Claimant.

[38]On 20th December 2011 the Defendant served on the Claimant a further “liability to deportation” notice, CB 220. That indicated to the Claimant that he might be subject to automatic deportation in accordance with section 32 (5) of UKBA 2007 unless he fell within one of the exceptions set out in section 33 of that Act. The notice sets out the exceptions in detail, and, in particular, points out that exception 1 was applicable where removal in pursuance of the deportation order would breach his ECHR rights or the UK’s obligations under the Refugee Convention. The notice then indicates that, if he wishes to rely on that exception he may be able to appeal against the decision that section 32(5) applies to him from within the UK under section 82(1) and 92(4)(a) of the Nationality Immigration and Asylum Act 2002. It is clear from the terms of this notice that any appeal is in prospect, that is, following any decision by the Secretary of State that section 32(5) applies. In order to form that decision the Secretary of State would have to consider whether any of the section 33 exceptions applied, hence the request in the letter for the Claimant to raise any such exception.

[39]As Mr. Goodman points out, this notice explicitly refers to UKBA in contrast to the letter of the 5th April 2011 which appears to be one sent under the provisions of IA 1971.

[40]There is no doubt that the Defendant, through her officers, was investigating whether the Claimant was of Jamaican nationality. On 20th January 2012, the Jamaican High Commission wrote to the Claimant’s solicitors indicating that they could not verify the Claimant’s nationality from the information provided (CB 181). It is pointed out that, while at the hearing before me, it has been contended that the Jamaican High Commission appear to have put a caveat on their refusal to accept that the Claimant is Jamaican, namely, that that was on the basis of the information submitted to them, the Defendant, in her response to the Claimant’s pre action protocol letter of 21st January 2013, CB 50, said that the Jamaican authorities had confirmed that the Claimant was not Jamaican.

[41]Since the House of Lords’ decision in Lumba, the Defendant’s policy has been that release from immigration detention can only be ordered by a Strategic Director or the Chief Executive of the UK Border Agency. Detention should be reviewed monthly and where an officer reviewing detention believes that there is a case for release, he or she sends a release referral up the chain of authority, ultimately, if release is to be authorised, to a Strategic Director or the Chief Executive. The refusal may be made at a lower level. The policy is set out in Chapter 55 of the Defendant’s Enforcement Instructions and Guidance policy.

[42]At CB 56 is a letter to the Claimant of the 19th July 2012 indicating that on that day his release referral was refused by senior management of the Agency for various reasons, namely, that he had been deceitful about his nationality and could speed up the process by being honest and compliant, that he was convicted of a very serious offence, presented a high risk of absconsion and could be removed within a reasonable timescale if he complied with the Emergency Travel Document (ETD) process.

[43]A further release referral of the 22nd January 2013 (not contained in the bundle of disclosed documents) is referred to in the witness statement of Bridget Carter of the Home Office Criminal Casework Team, served on behalf of the Defendant, at SB 80 paragraph 41.

[44]On 17th December 2012 an ETD (Emergency Travel Document) pack was sent to CROS (Country Returns, Operations and Strategy) to arrange for the Claimant to be interviewed by the Jamaican High Commission. They interviewed him on 10th January 2013 and did not accept that he was Jamaican. On 14th January 2013 the Claimant sent a pre-action protocol letter to the Defendant which letter set out his version of his family background (a version rejected by the Defendant). He requested a decision on his case within 14 days. The Claimant relies on the statement in the Defendant’s response to that pre action protocol letter (CB50) in which the Defendant says that the Jamaican authorities confirmed he was not Jamaican. No caveat is referred to in the Defendant’s letter (of the 21st January 2013) which sets out the problems they had had in making a decision on release.

[45]On the 19th June 2013, there was another Detention Review (SB430). Mr. Goodman stresses that this is the first disclosed document from the Defendant which specifically refers to the legal basis of continued detention of the Claimant as “section 36 (1) (a)/(1) (b) of UK Borders Act 2007.” Even in that document the Defendant’s officials do not distinguish between the 2 completely separate powers.

[46]That detention review refers to the ICD.0350 being sent to the Claimant in April 2011 but having gone missing from the Claimant and another one being sent on 21/4/11 which was received completed on 4/5/11. As far as I can see that document is not in the disclosed papers but the Detention Review of 20th May 2011 (SB262-3) indicates that no notified Human Rights factors were known. The detention review in June 2013 indicates that the Claimant had not asserted that to deport him from the United Kingdom would be a breach of his article 8 rights. The review is a useful summary of the Defendant’s investigations into the Claimant’s nationality and contains the indication that the possibility that he was a Jamaican national was far greater than of being of any other nationality, hence the arrangements being made for him to be interviewed by the Jamaican High Commission for an ETD. The review confirms the High Commission had declined the application.

[47]The review indicates that an officer from the Country Specialist Investigation Team had confirmed after making “relevant enquiries with the Portuguese Authorities that the Portuguese nationality claim was now null and void”. There is no evidence from that officer.

[48]The review indicates that a deportation decision had been drafted and was currently with a senior caseworker for approval.

[49]Ongoing detention was authorised.

[50]The notice of decision that section 32(5) of UKBA applied, and that the Secretary of State had decided to make a deportation order, foreshadowed in that detention review, was dated 9th July 2013 and was served on 11th July 2013, bringing to an end the third period of detention in issue in these proceedings, namely, the period from 5th April 2011 to 11th July 2013, in which period the Defendant says that the detention was authorised under section 36 (1) (b) of UKBA. Although I shall set out the applicable law later in my judgment, it is as well at this point to recall that section 36 (1) (b) states that “A person who has served a period of imprisonment may be detained under the authority of the Secretary of State – (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.” (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.”

[51]The notice of the decision that section 32(5) applied was headed “In compliance with the Immigration (Notices) Regulations 2003”.

[52]The covering letter accompanying the notice (CB33) refers to the Claimant’s nationality as “believed to be Jamaican”. It points out that the Claimant had a right of appeal against the decision under section 82 (3A) from outside the UK.

[53]The deportation notice (the second deportation notice) accompanied the notice of decision that section 32(5) applied (see CB 198) and is dated 8th July 2013, which is actually one day before the notice of decision that section 32(5) applies which contains within it the indication that the Secretary of State had decided to make a deportation order. It is, apparently, the practice for the notices to be served together. The deportation notice is in inchoate form pending any appeal from the decision that section 32(5) applies. As I have indicated, an appeal was lodged and was in July of this year adjourned to await the result of this review.

[54]The Claimant was released on bail by an immigration judge on the 13th November 2013 bringing to an end the fourth period of detention in issue here, being the period running from the service of the second deportation notice, during which period the Defendant contends that the authority for detention was paragraph 2(3) of Schedule 3 of IA 1971.

[55]To complete the chronology, the application for permission first came before His Honour Judge Cotter QC, who, on 27th November 2013 adjourned the application into court and ordered the parties to serve evidence on the issue of whether deportation to Jamaica was likely within a reasonable period and permission to apply for judicial review was granted on all grounds by Mr. Justice King on 26th February 2014.

[56]The statutory framework, which has been briefly referred to above is as follows:

[57]The power to regulate and control entry into and stay in the UK is provided by section 3 of the Immigration Act 1971 as is the power to deport:

“Section 3 (1) Except as otherwise provided by or under this Act, where a person is not a British Citizen a) He shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; b) He may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period a) He shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; b) He may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period (5) A person who is not a British Citizen is liable to deportation from the United Kingdom if a) The Secretary of State deems his deportation to be conducive to the public good.”

Section 5 of the Act says:

“ 5 (1) Where a person is under section 3 (5) or (6) above liable to deportation, then, subject to the following provisions of this Act, the Secretary of State may make a deportation order against him, that is to say and order requiring him to leave and prohibiting him from entering the United Kingdom and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (2) A deportation order against a person may at any time be revoked by a further order of the Secretary of State and shall cease to have effect if he becomes a British citizen…. (5) The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention and control of persons in connection with deportation.”

The relevant provisions of Schedule 3 are:

“ 1 (1) Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either – a) a country of which he is a national or citizen; or b) a country or territory to which there is reason to believe that he will be admitted……. 2 (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (NIAA) (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State, pending the making of the deportation order. 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.”

[58]It should be noted that paragraph 1 of Schedule 3 make it clear that the directions which may be given for the removal of a person subject to a deportation order are not part of the order itself which does not have to specify the country to which the person is being deported.

[59]It is a pre-condition to the exercise of the power to detain under paragraph 2(2) of Schedule 3 that the notice of the decision to make a deportation order is served on the person to be deported (R. v Secretary of State for the Home Department, ex parte Oladehinde

[1991] 1 AC 254

and Sante). The judgment of Lord Griffiths in Oladehinde, at 302 A-B points out a lacuna in the power to detain where the Secretary of State is considering a report dealing with any representations made by the immigrant prior to deciding to make a deportation order. That lacuna was filled by section 36 (1) (a) of UKBA.

[60]In this case the notice of intention to make a deportation order was indeed served on the Claimant, giving him a right of appeal, which was not exercised. He was already then serving his 9 year prison term so that it was unnecessary at that stage for the paragraph 2(2) power of detention to be used. 18 days later he was served with the first deportation order and so, when he was released from custody, the paragraph 2(3) power would have been exercisable. Again, it is not disputed that service of the deportation order is necessary to enable the exercise of that power.

[61]2 years after that deportation notice was served on the Claimant, directions were given for his removal (CB286), those directions specifying, as the deportation order was not required to do, and did not, the country to which the Secretary of State had directed the Claimant should be removed, namely, Portugal.

[62]The importance of service of the notice of intention to deport and the deportation notice itself, both or which had important legal effects was stressed by Lord Steyn, at paragraph 26 in the case of Anufrijeva (ante), cited by Mr. Elvin QC in S (ante):

“The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system”

[63]As Mr. Elvin QC pointed out in S, the making of a deportation order under the 1971 Act was an appealable immigration decision which must, in any event, be notified to the individual under regulation 4 of the Immigration ( Notices) Regulations 2003 and triggers the right of appeal under section 82 (2) (j) of NIAA . Thus he concluded a failure to notify the Claimant in that case of a deportation was fatal to the lawfulness of detention under paragraph 2(3).

[64]The United Kingdom Borders Act 2007 created automatic deportation. Section 32 states, so far as is relevant:

“(1) In this section “foreign criminal” means a person: (a) who is not a British citizen, (b) who is convicted in the United Kingdom or 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). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless- (a) he thinks that an exception under section 33 applies, (b) ….. (c) section 34(4) applies.”

Section 33 lists the exceptions to the automatic deportation provisions, the most important of which, under section 33 (2) is where removal of the foreign criminal in pursuance of the deportation order would breach his Convention rights or the United Kingdom’s obligations under the Refugee Convention. (a) he thinks that an exception under section 33 applies, (b) ….. (c) section 34(4) applies.” Section 34 (4) states:

“The Secretary of State may withdraw a decision that section 32(5) applies or revoke a deportation order made in accordance with section 32(5) for the purpose of – (a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971, and (b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32 (5)”

Section 36 states, again, where relevant:

“(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.”

[65]A decision to make a deportation order which states that it is made in accordance with section 32(5) is not an appealable immigration decision under section 82 NIAA but a decision that section 32(5) applies is such a decision (section 82 (3A)(a)).

[66]Mr. Goodman contends correctly, following Lord Dyson’s judgment in Lumba that when reviewing the legality of detention the Court may find that false imprisonment is established either where there has been jurisdictional error (for example, if the grounds for the exercise of one of the powers of detention above did not apply) or that exercise of a power to detain is vitiated by a public law error. Such errors would include breach of one of the principles enunciated in Hardial Singh

[1984] 1 WLR 704

. In R (I) v Secretary Of State For The Home Department, Lord Justice Dyson approved the summary of those principles into four, namely “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.”

[67]Mr. Goodman seeks to argue that the Secretary of State had no jurisdiction to detain during any one of the 4 periods with which this claim is concerned, but in relation to all but the first period, he submits that, in addition, any jurisdiction which the Secretary of State had (and he disputes there was jurisdiction) was vitiated by public law error in that it was exercised in breach of the Hardial Singh principles.

[68]He did not argue them in chronological sequence but I believe it will be more helpful if I do take them in that sequence, starting with the period when the Claimant was due to be released from his custodial sentence, that is, 21st September 2010 and the 18th October 2010 when the first deportation order was revoked.

[69]During this period, as will be recalled, the Defendant has particularised the justification for detention as being paragraph 2(3) of IA 1971.

[70]Mr. Goodman submitted that in this period the Defendant was “hoist with her own petard”. He refers to paragraph 40 in the Defendant’s detailed grounds for resisting the claim. There the Defendant says that the first deportation order was made under the EEA regulations but that, in this case, the order could not have been validly made against the Claimant, “who is not an EEA national. Once it was clear that the Secretary of State could not reasonably consider that he was an EEA national, that decision could not be maintained. It is therefore accepted that there was, as at September 2010 no extant decision to deport the Claimant, whether the earlier decision was revoked (as to which there is no paper evidence) or withdrawn or a nullity from the origin. It could not be acted upon once it had become clear that the Claimant had lied about his nationality in order to be deported to another EEA state.”

[71]Thus, Mr. Goodman contends, if the deportation order was a nullity or there was, as of September 2010, no extant decision the condition precedent to exercise of the paragraph 2(3) power to detain did not exist and the detention was unlawful.

[72]In fact, Miss Rowlands did not fully deal with this argument but she did maintain, without citing authority, and somewhat inconsistently with her own detailed grounds, that there was still power to detain until the first order was revoked. In the alternative, she relied on the doctrine of “ex turpi causa” to which I shall come in due course.

[73]This issue ought not to be determined on a reliance on unclear or inconsistent arguments on behalf of the Defendant. Until the refusal of the Portuguese immigration authorities had been reflected upon on the return of the Claimant to the United Kingdom, the Secretary of State was quite clearly entitled to conclude that the Claimant was liable to deportation and to make a deportation order under the 1971 Act and the EEA regulations, it then appearing, on the Claimant’s own account, which he maintains to date, that he has Portuguese nationality. It cannot now lie in the Claimant’s mouth to suggest that there is now doubt that he was properly regarded as covered by the EEA regulations. The first deportation order was properly made on the then evidence available to the Defendant but, when the information from the Portuguese authorities was considered it was revoked. As Mr. Goodman himself pointed out in his skeleton argument at paragraph 46 the statutory conditions for the validity of a deportation order under section 5(1) of the 1971 Act were met and there is no need for a deportation order to specify the country to which the deportation was to take place.

[74]As Lord Hughes stated in R (George) v Home Secretary (SC(E))

[2014] 1 WLR 1831

at para. 29, the natural meaning of the words of section 5(2) of the 1971 Act are that revocation takes effect when it happens and does not undo events occurring during the lifetime of the deportation order. Indeed it would have been astonishing if Parliament had intended that revocation should have had retrospective effect that it would not have passed a provision saving detentions imposed under schedule 3 of the same Act. The original deportation order was not a nullity and the revocation of it merely removed the power to deport for the future. The detention made under the first order remained lawful even when that order was revoked just as the effect of the order’s rendering leave to remain invalid was not undone by revocation in George.

[75]This is a very different situation from that in Boddington v British Transport Police

[1999] 2 AC 143

. The situation being contemplated by Lord Irvine at 155 B to D is where subordinate legislation or an administrative act, presumed to be lawful until it has been pronounced to be unlawful, is quashed as unlawful when it is then recognised as never having had legal effect at all. Here there was nothing unlawful about the original deportation order; instead that order was subsequently lawfully (and properly) revoked.

[76]Turning to the second period of detention, from 18th October 2010 until 5th April 2011, a period of 5 months and 18 days, the Defendant’s case is that the justification for that detention was section 36(1)(a) of UKBA.

[77]It has been said (R (Aitouaret) v Secretary Of State For The Home Department

[2010] EWHC 3136

) that that section provides a period of “grace” for the Secretary of State while consideration is given as to whether section 32(5) of the 2007 Act applies.

[78]Applying Khawaja, it is for the Defendant to prove that that justification existed for the detention on objective grounds, on a balance of probabilities. In fact, the argument that was made on behalf of the Secretary of State was that it must have been section 36(1)(a) under which the Claimant was detained because there was not other power which the Secretary of State could have been exercising and that it is “clear” that that is what must have been done. That argument seems to me to be the very opposite of undertaking the burden of proving lawful justification.

[79]In truth, as was demonstrated by Mr Goodman, there is no evidence at all in the disclosed documents, that section 36(1)(a) was even contemplated as being the justification for detention and there is no reference to it during this period.

[80]In the detention review dated 7th January 2011 (SB 248), where, if that power were being relied on, one would expect to find it referred to, it is not mentioned nor is there any reference to enquiries being made as to whether one of the exceptions in section 33 applied, which would be the only reason why section 32(5) should not apply. Instead the review refers to investigations about the Claimant’s nationality with a view to a travel document being obtained. That would be necessary for the directions following the making of a deportation order but not for the making of the deportation order itself. Miss Rowlands suggested the Secretary of State could not decide whether, for example, the Claimant’s convention rights might be endangered by the making of a deportation order unless the country to which the Claimant would be deported was not known. If there were any reference to that being in the minds of the Defendant’s officials that might be a plausible argument, but there is no such reference.

[81]In R.(Kambadzi) v Secretary Of State For The Home Department

[2011] 1 WLR 1299

, the Secretary of State’s failure to comply with his published policy of regularly reviewing detention was held to render continued detention unlawful. As Baroness Hale pointed out, by analogy with Christie v Leachinsky, reviews are essential to enable a prisoner to know why he is being detained so as to enable him to challenge that detention. Here the Secretary of State did conduct regular reviews and, again, one would expect to find in reviews served on the Claimant the justification for detention.

[82]The review immediately following the expiry of the period now under consideration, a review dated 31st May 2011 (SB 446) makes reference to the detention under IA 1971 from 21/9/10 but not to section 36 of that Act. Nor is there any suggestion in the review that the Secretary of State was considering the exceptions under section 33.

[83]Moreover in a letter of the 5th April 2011, a complete copy of which was given to me separately from the hearing bundles, the official of UKBA who wrote the letter said that the Secretary of State “is now considering your immigration status and your liability to deportation”, which appears to contradict entirely the suggestion that during the preceding 5 months that is what the Secretary of State had been doing. Similarly, the letter informs the Claimant “If you do not reply in writing within this time, the UK Border Agency will (my stress) decide the question of deportation on the basis of information known to us”. The letter invites the Claimant to tell the Secretary of State of any reasons why he should not be deported and accompanying the letter is a questionnaire which contains questions which are plainly relevant to consideration of convention rights (the most obvious exception to automatic deportation under section 33).

[84]Mr. Goodman submitted, without contradiction by Miss Rowlands that there was no document communicated to the Claimant during this period or even after it which indicates that the Defendant was relying on 36(1) (a) and the letter above dated at the very end of the period now considered and, no doubt, served after it expired, evidences that the Secretary of State had not even started to consider whether section 32(5) applied. In the Summary Grounds of Defence, the Detailed Grounds and in the Defendant’s skeleton argument, section 36(1)(a) is not mentioned and remained unspecified until the reply to particulars requested by the Claimant was answered at the hearing. The reliance on that section is an ex post facto justification for the detention. The Defendant has signally failed to prove on a balance of probabilities that it was the justification, at the time, for the detention. The Claimant’s detention was, therefore, during this period, unlawful, subject to the Defendant’s argument on ex turpi causa.

[85]It is somewhat difficult to assess this defence given that it is not clearly argued in the detailed grounds or in the Defendant’s skeleton argument as a specific defence to this claim but rather as an aspect of the argument on the HardialSingh principles, on the basis that the Defendant had a lawful power to detain and as a matter the court should take into account when assessing damages.

[86]Thus it is argued that, where there is a lawful power to detain, the period which it is reasonable to detain the Claimant for has to be assessed taking account of what the Defendant says is the deception practised by the Claimant, amounting to criminal behaviour, which has caused the Defendant to believe that he is of one nationality when he, in fact, is another. The phrase “ex turpi causa” is not mentioned in the detailed grounds of the 31st March 2014 but it is pleaded in the detailed grounds/skeleton argument of the 17th October 2014 when it is pleaded in the context of refusal of damages to the Claimant (see para. 33 SB608). To be precise the Defendant contended: “It would be contrary to good policy if a man who has evaded deportation, lied and shuffled, should be entitled to claim damages for a situation of his own making. Ex turpi causa non oritur action: damages should be refused”.

[87]In the grounds of the 2nd August 2013 Miss Rowlands for the Defendant argues: “As a matter of policy the Claimant’s complaint that detaining him to find out the truth about his background is an abuse of process must fail”.

[88]In the grounds of the 31st March 2014 it is contended (para.52):

“The Claimant obstructs the enquiries at the same time as seeking judicial review of the Defendant’s failure to bring them to a successful conclusion. He cannot rely on his own turpitude to found a claim.”

The sentence I have quoted in the last paragraph is then repeated and the Defendant adds:

“ In any event, he cannot be entitled to damages for a period of detention due to his failure to mitigate his loss by telling the truth about his background”

. It is certainly not clear from those arguments that the Defendant is doing more than saying that deception by the Claimant should be taken into account when applying the Hardial Singh principles or when damages are assessed.

[89]In oral argument, Miss Rowland certainly deployed what she argued to be the deceit of the Claimant when looking at the Hardial Singh principles and also said that it might go to damages. She said that “ex turpi causa is relied on in that the Claimant cannot rely on his own deceit. If it had not been for his deceit he would have been deported and so when considering questions of the reasonable period of time the course of deceit is relevant”.

[90]I do not understand that to be a submission that the Claimant, as a person who is alleged to have practised deceit, is therefore barred from judicially reviewing his detention. No authority is relied on for such a proposition save that mention is made of Chen v Secretary Of State For The Home Department

[2002] EWHC 2797 (Admin)

in which Mr.

Justice Goldring (as he then was) said, in a deportation detention case:

“Non co-operation may not be decisive. It is, however , a relevant, possibly highly relevant factor. If that were not so the purpose of these provisions could deliberately be defeated by a determined applicant. It would be open to such a person simply to sit there and do nothing until return was no longer a realistic prospect.”

[91]That does not represent an authority for the proposition that the doctrine of ex turpi causa represents a complete defence to a review claim alleging a lack of jurisdiction to detain.

[92]Tinsley v Milligan

[1994] 1 AC 340

was cited in argument but the case is really about the circumstances where a claimant to an interest in property was entitled to recover that property if he was not forced to plead or rely on an illegality even though the title on which he relied was acquired in the course of carrying through an illegal transaction. In that case, the fraud was admitted and anyone who alleges a fraud in civil proceedings bears the burden of proving fraud, which, though it is still a burden of satisfying the court on a balance of probabilities requires cogent evidence to do so.

[93]The most recent re-statement of the ex turpi causa doctrine was by the Supreme Court in Les Laboratoires Servier and another v Apotex Inc. and others

[2014] UKSC 55

. In that case the Supreme Court (with the possible exception of Lord Toulson) did not doubt the correctness of Tinsley v Milligan which required the Court to refuse its aid to a party whose case depends on reliance on crime or quasi criminal behaviour as a matter of policy and in the public interest. No element of discretion remained to a court in such circumstances.

[94]In his leading judgment, Lord Sumption cited the statement of principle of Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp. 341 at 343:

“No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted.”

[95]As I have already indicated, the position is clear where, as in Tinsley v Milligan, the criminal or quasi criminal conduct is admitted, but that is not the case here. What, therefore, is the Defendant’s case against the Claimant and is it established on convincing evidence to my satisfaction on a balance of probabilities.

[96]The Defendant’s evidence is contained in the statement of Bridget Carter of 18th December 2013 and in documentary material in the bundles. The facts relied on are as follows: i) The Claimant was returned from Portugal on the same day as he was deported (travelling there on an European Union letter, an emergency travel document used by European Union member nationals) having been refused entry as, according to Ms Carter, the Portuguese authorities did not believe that he was a Portuguese national. There is no direct evidence adduced by the Defendant from any Portuguese official who refused entry. When the Claimant was asked by an official of the Defendant about the refusal of entry he said that the Portuguese authorities did not let him into Portugal as “they could not access their systems and therefore did not believe him” (SB 118). ii) On 30th September the Claimant was requested to provide documentary evidence of his Portuguese citizenship but provided none. On the same day an email was received from Sainoro Noronha at the Portuguese Embassy advising that the Claimant was not Portuguese. I am unable to trace that email in the bundle of documents though I do not doubt it exists. Case notes also indicate that the Portuguese Embassy in London have denied issuing an identity document to the Claimant. Again there is no direct evidence from the Embassy to that effect. iii) He does not speak Portuguese and when the Defendant’s “caseowner” attempted to have him interviewed with a Portuguese interpreter, he became angry (though he later apologised) because, as he said then and had said before, he had left Portugal when he was 3 years old. He said he had had a Portuguese birth certificate in the name of Paulo Wilson Antonio but that had been mislaid following his mother’s death (SB 127) iv) The Claimant had given 4 alternative names for his father, all with a common date of birth (SB128 – 4th March 2013). There is then in the Defendant’s case record sheet for the 13th March 2013 the entry “ (redacted name) confirmed after making relevant enquiries, the Portuguese nationality claim is now null and void.” v) A detailed interview was held with him at Colnbrook IRC on 16/4/2013 (SB 129). He said his brother in the USA had held documents establishing his Portuguese nationality but that most documents were lost after hurricane Katrina, his brother having lived in New Orleans. The case record sets out the autobiographical details he gave. Further details were given by him in an interview on 16th April (SB130). vi) He has claimed to have spent his youth in the USA but the Defendant says that a “biometric data sharing request” was sent to USA officials but showed no match (SB 132). vii) The case note at SB132 states that Interpol checks conducted in USA, Jamaica and Portugal have proved negative. I have not been told what those checks involved nor whether they are, of necessity, for a criminal record in those countries. viii) A check has been made with HMRC in the UK – the Claimant has given the Home Office two NI numbers – but there has been no match with those numbers and there is no record of his working legitimately in the UK (I am not clear how that assists in establishing his nationality). No medical records for him in the UK have been obtained (again, I am not clear where that takes the enquiry into nationality). ix) There is no record of his lawful entry into the UK (SB135). x) In 2002 he worked for Denso Manufacturing in Telford. Under a section headed “Ethnic origin” he ticked a box “Black Caribbean” . Given that he is black and that he has always said his mother was Jamaican I am not clear why the Defendant says this is in any way inconsistent with his case. xi) He has given different names for his mother and for his father. xii) He has given some inconsistent details about his education. xiii) In the Claimant’s own witness statement in these proceedings he has stated his date of birth as 27/5/1975 but in an application for employment to Denso Manufacturing UK Limited (not in any information given to the Defendant) he stated his date of birth to be 27/05/77. In the same application form, which it is unlikely he ever thought would come to the attention of the Defendant, he stated he was born in Portugal. xiv) He has been asked by the Defendant to produce a Portuguese identity document. He has said that he believed his identity document was taken from him at Mullinsgate Police Station in Telford. That is an account he has repeatedly given and he has never altered his account that he is Portuguese. Ms Carter says that in November 2010 the Claimant claimed his passport had been taken from him at Tottenham police station. Confirmation has been obtained from both police stations that they did not hold documents for the Claimant. xv) The Defendant’s case has been that he is Jamaican. He has always indicated that his mother was Jamaican but has always denied that he was Jamaican. The Jamaican High Commission have interviewed him but on 2 occasions have not accepted he is Jamaican. The Defendant’s evidence that he is Jamaican is that he speaks with a Jamaican accent (there is no expert evidence on that), that he “looks” Jamaican and is a Rastafarian. xvi) Information has been sought about his bail surety (see Carter paragraphs 21-22) but although a tenuous Jamaican link has been found nothing more of significance has been discovered. xvii) No trace of his family in the USA has been found. Interpol checks included fingerprints and those checks have been negative. xviii) The Defendant has concluded that the Claimant is and has been failing to provide the Home Office with true information. xix) Ms Carter says in paragraph 62 that from 2011 to 2013 the Defendant reasonably believed that the Claimant was Jamaican. The Jamaican authorities had (as at the date of her statement) “now” refused to accept him as Jamaican. She then says “Nonetheless, the Defendant’s belief was based on sound evidence.” I have, I think, set out above the basis for the Defendant’s belief and I should say at this stage that I can see no “sound evidence” for that belief. xx) Ms Carter says that she believes that the Defendant has used all due diligence to establish the Claimant’s true identity. Whilst the Defendant is satisfied that the Claimant is not Portuguese as he asserts, Ms Carter says that he has frustrated all attempts to establish his true identity. From the period from 2011 to 2013 the Defendant reasonably believed that the Claimant was Jamaican. She contends that the Claimant’s “prolonged and repeated deceit” outweighed the presumption of release and that the Defendant was of the opinion that the investigations being carried out would mean that deportation was likely to occur in the near future.

[97]The Claimant’s account is set out in his statement at page 7 onwards in the supplementary bundle. He says that he has, when repeatedly interviewed, provided consistent and honest answers. As can be seen from the list above, his consistency is certainly in question. It is also true to say that his solicitors have also on his behalf made many enquiries to help support his continued contention that he is Portuguese. Those enquiries, which include attempts to find his allegedly missing personal documentation, can be found in section C of the Supplementary Bundle.

[98]There are 2 statements from Sheroy Zaq, a trainee solicitor at the Claimant’s solicitors, Messrs Duncan Lewis. He contacted the Custody Inspector for Telford police whose investigation did confirm that items taken from the Claimant when he was remanded into custody included “miscellaneous papers”. Further enquiries revealed that the form which accompanied the Claimant to court on 5th May 2004 did not have any information entered into the property section which should have contained all his personal property which he took with him. Either the form was incorrectly completed or he did not take any property with him. Sheroy Zaq suggested that history confirms the Claimant’s account that papers were taken from him in custody and have not been retained.

[99]An earlier statement by Mr Zaq (SB 576a) tells of a visit he made, accompanied by the Claimant, to the Portuguese Consulate in London. The visit was to make a personal enquiry about his nationality. The Claimant told the official there that he had no Portuguese identification and reiterated that he had left Portugal as an infant having been born there.

[100]The Claimant was asked by the official to describe the layout of his Portuguese Identification Card from memory and did so without fault.

[101]The Official did a series of searches based on information given by the Claimant but could not find any matching records. He was asked by Mr Zaq why that was the case and said that:

“the system at the Portuguese Embassy is updated and filtered every ten years. As a part of this filtering process, the Official said that many “inactive” records are simply considered “not worth being entered on to the system” at an administrative level; this does sometimes lead to difficulties such as those that the Claimant has been faced with”

[102]Messrs Duncan Lewis has requested written confirmation of those statements by the Consular official but none has been placed before me.

[103]In argument I put to both Counsel that if questions of fraud were relevant only to issues of the quantum of damages, they might need to be dealt with at another hearing where I or the judge assessing damages might need to hear evidence on oath. Miss Rowlands for the Defendant did not suggest I should hear evidence on oath in the hearing as to liability.

[104]I have set out at rather too great length the actual written evidence before me which addresses the issue of whether the Claimant has been deliberately deceitful about his nationality. I have not been asked to hear oral evidence, nor have I heard it. The evidence from Ms Carter is, much of it, second hand hearsay. She may have been responsible for some of the enquiries but it is not clear what direct evidence she can give. There are various emails produced but no direct evidence from the Portuguese authorities or from the police has been put before me.

[105]Miss Rowlands submits that the Claimant may have committed criminal offences, the example she gives being offences contrary to section 26(1) (a) and (b) of the Immigration Act 1971, namely failing or refusing to produce information or documents or making false statements. However, those sections relate to the production of specific documents (such as passports) or information on formal requests to Immigration Officers under Schedule 2 of the Act and it has not been established by the Defendant that Schedule 2 actually applies or that any requests have been made by Immigration Officers. This, after all, was an investigation by the Home Office after a failed attempt at deportation, not an investigation of a person entering the country, which is what Schedule 2 is really about.

[106]In fact, as Mr Goodman pointed out no prosecution has ever been initiated against the Claimant as a result of any alleged deceit perpetrated by him during the attempts to deport him, and there has certainly been no conviction. If the prosecution contend that there have been criminal offences committed by the Claimant (and Miss Rowlands has not specified any “quasi criminal turpitude” alleged against the Claimant) they could and should have prosecuted him and proved their case, if they could before the proper tribunal, namely, a criminal court, to the criminal standard of proof. Indeed, in argument, Miss Rowlands said that he had not been prosecuted because the Defendant would not have had the evidence to establish a case beyond a reasonable doubt.

[107]I am afraid that it is one thing to accuse the Claimant, as Miss Rowlands has, of being corrupt, and another thing to prove it, as she must be required to do if she alleges that he is barred from bringing a judicial review claim because of turpitude.

[108]The evidence relied on has not been tested on oath and the Defendant has not suggested it should be. It is not the direct evidence that any court asked to make a finding of fraud should insist upon before even considering reaching such a conclusion. There is certainly the basis for an accusation of inconsistency of information provided but, as far as the critical fraud alleged, namely, falsely claiming to be Portuguese, the evidence is by no means one way only, there has never been any admission of fraud and the direct evidence which would really count, namely, from the Portuguese authorities, is lacking. Indeed the Claimant’s solicitors have produced some evidence to suggest that this may be a case where the real problem is a dearth of recording to prove the issue one way or another.

[109]It should be noted that the Claimant has never accepted and never suggested that he is Jamaican or has a nationality other than Portuguese. It is noteworthy that he made no effort to appeal his original deportation order and waived his appeal rights.

[110]There is no doubt that in assessing any damages which may flow from a finding of the tort of unlawful imprisonment, it is pleaded that the Claimant has failed to mitigate his loss by giving accurate information about his nationality. The appropriate way of trying that is by the Court hearing oral evidence at a hearing following that of liability. The Court may reflect contributory behaviour by the Claimant in damages which it may award. However, as Lumba established, the tort of false imprisonment is actionable without proof of special damage (see Lord Dyson’s judgment at para 64). If the Defendant can establish that she had a lawful power to detain, even though the wrong power had been exercised and that that detention was exercised in accordance with the Hardial Singh principles, then the Claimant would be entitled to nominal damages for false imprisonment, but not no damages.

[111]Additionally Mr Goodman correctly points out that the case of Al Hassan-Daniel v Revenue and Customs Commissioners

[2011] QB 866

establishes that the common law defence of ex turpi causa did not form part of the jurisprudence of the European Court of Human Rights, save at the point of gauging the right to just satisfaction and did not amount to a defence to a claim brought for a convention breach, as is claimed here alternatively to false imprisonment. If the Defendant restricted the Claimant’s right to liberty to a greater degree than she was entitled to restrict it, it is no answer to say that, by using some other power, the Defendant might lawfully have restricted it (Kuchenmeister v Home Office

[1958] QB 496

[112]Both on the evidence, therefore and as a matter of principle, in relation to the second period, the Defendant has not established any defence to the claim for review and the Claimant’s claim that he was falsely detained. Indeed, even if it had been established that the Claimant had been fraudulent in his claim to be Portuguese it has not been established to my satisfaction that any such fraud was causative of any unlawfulness of detention after his return from Portugal, after which time it is obvious that the Defendant was not relying on the Claimant’s representation he was Portuguese, and, eventually, positively disbelieved that contention.

[113]The third period ran from 5th April 2011 until 11th July 2013 on which date the Claimant was served with the second deportation notice.

[114]During this period the Defendant justifies the detention by virtue of section 36 (1) (b) of UKBA, that is, that she thought that section 32 (5) applied, and was detaining pending the making of a deportation order.

[115]In order for the Defendant to have thought that section 32(5) applied, she must have been satisfied that none of the section 33 exceptions applied. The period pending the making of a deportation order is, of course, a very long one, some 2 years and 3 months.

[116]I again accept the contention of Mr Goodman, that in order to establish the lawfulness of detention under the relied on power, it is necessary for the defendant to establish that she did believe section 32 (5) applied on objectively verifiable grounds. A decision that section 32(5) applied is, by virtue of section 82 (3A) (a) of the Nationality, Immigration and Asylum Act 2002, an immigration decision carrying with it an appeal to the Tribunal. As such it must be notified to the individual concerned so that he is able to exercise his right of appeal.

[117]As a matter of fact, however, notification of the decision that section 32 (5) applied was not apparently made until 9th July 2013 (CB 34 – Notice of decision that section 32(5) applied) a decision that was not served until the 11th July 2013 which is actually the last day upon which the Defendant actually says that she believed section 32(5) applied. That was the same day upon which, as is normal practice, the second deportation order was served. In other words, the statutory pre-condition for the lawful exercise of the detention power was not satisfied until the last day of the period during which the Secretary of State relies on 36 (1) (b).

[118]For the notice to have been effective during the 2 year and 3 month period it would have to have been served so that the Claimant could exercise his right of appeal. No such notice was served until the 11th July 2013.

[119]I have already dealt with the issue of ex turpi causa. For the reasons I have already given it does not afford the Secretary of State a defence if otherwise the detention cannot be lawfully justified. It is very obvious that the letter of 5th April 2011, already considered, does not amount to a decision that section 32(5) applies. Indeed that letter says as much. Neither does that letter indicate that the Claimant has a right of appeal. That is because it is not a letter indicating an appealable decision. The letter of 9th July 2013 accompanying the Notice of Decision that section 32(5) applies (CB33) does indeed state that the right of appeal exists.

[120]The problem of the jurisdiction to detain had been recognised by officials of the Defendant as early as the 19th December 2011, the date of an email which indicated that “the subject is currently detained and was served with an 0350AD under the 1971 Act in April 2011. This situation needs to be remedied immediately by the service of an 0350AD under the 2007 Act. We can then legitimately detain him under section 36 of the 2007 Act while we consider whether or not Automatic Deportation applies to him.”

[121]The next notice served on the Claimant was dated 20th December 2011 and did relate to UKBA. It indicated that the Defendant was thinking if section 32(5) applied, sets out the exceptions, invites the Claimant’s comments and indicates that, if an exception was applicable he “may” be able to appeal. I agree with Mr Goodman that that clearly indicates that that possibility was something being considered in prospect. In other words, this notice suggests the Secretary of State was making up her mind about whether section 32(5) applied, not that she had decided that it did. It wholly undercuts the claimed legal justification for the detention.

[122]Miss Rowlands faintly argued that the Secretary of State continued after 5/4/11 to have the section 36(1)(a) power despite having on instructions confirmed that the justification during this long period was 36(1)(b). She said that the Secretary of State could not make a decision whether any of the exceptions under section 33 applied until she knew what country to send the Claimant to. If there was any evidence that that was what was troubling the Secretary of State then that argument might be considered but there is none. It is not a precondition for the making of a deportation order that the country to which the person will be deported is known. As she conceded in argument, during this period, that the Claimant was detained under section 36(1) (a) was “not spelled out”. In truth, there is no objective evidence at all to support that section 36 (1) (a) (meant to be a period of grace) was relied on for this 2 year and 3 month period.

[123]The third period has simply not been justified by the Defendant; indeed all the evidence is against justification. The Claimant was unlawfully detained during this period in which it is reasonably clear that the Defendant did not believe the Claimant was Portuguese. In those circumstances, given that the Claimant never encouraged the Defendant to research whether he was Jamaican and, indeed, told the Defendant he was not, I find it difficult to see that any deceit (even if properly proved) relating to his Portuguese nationality had any causative effect on his being detained unlawfully.

[124]Finally I turn to the fourth period, that from the service of the second deportation notice on the 11th July 2013 until the release of the Claimant on bail on the 13th November 2013.

[125]Here the Defendant relies again on paragraph 2(3) of Schedule 3 to IA 1971.

[126]The Claimant has 2 arguments in relation to this period. The first is that the second deportation order was not validly made; the second is that administrative error (in the shape of breaches of the Hardial Singh principles) has invalidated the detention under the second order.

[127]Mr. Goodman’s first argument is based on the contention that a new deportation order may not be made in reliance on the same circumstances and reasons which applied at the time of the revocation of the previous deportation order. The revocation of the deportation order does not render the Claimant no longer liable to deportation (in that his deportation is still conducive to the public good). That is established by the Supreme Court’s decision in R(George) v Secretary Of State For The Home Department

[2014] 1 WLR 83

. Once the Secretary of State revokes the order she is free to re-visit the terms of leave to enter (see paragraph 31, George). The reason, however, that the Supreme Court considered that the Secretary of State might revisit the terms of leave to enter was that conditions might change in the person’s home country or his own personal conditions might change rendering him no longer able to rely on convention grounds for arguing he could not be deported.

[128]Thus, Mr Goodman argues that there must be some change of circumstances after the 18th October 2010 to enable a fresh deportation order to be made. When the first order was revoked, the Secretary of State did not believe the Claimant was Portuguese and he had been refused entry by Portugal. That remained the case when the second order was made. Neither was there any alteration in the Claimant’s personal or family conditions. He never had any convention grounds for objecting to deportation. The position was exactly the same on the 11th July 2013 as it had been on 18th October 2010. It was irrelevant that the Secretary of State had formed a view as at the 11th July 2013 that the Claimant was of Jamaican nationality because that was not an essential element for the making of a deportation order, though it would have been essential for the giving of directions for deportation after a deportation order was made (JN (Cameroon) v Secretary Of State For The Home Department

[2009] EWCA Civ 307

[129]The decision in R(Pryor) v Secretary Of State For The Home Department

[2013] EWHC 2853 (Admin)

, is persuasive authority in support of Mr Goodman’s argument. As Jeremy Baker J. found in that case (which, of course, was decided on very different facts from this case), at para. 41 “To my mind, and having regard to the construction of the 1971 Act, the decision to make a deportation order has to be distinguished from the deportation order itself. It seems to me that once a deportation order has been revoked the decision to make that deportation order falls away”

[130]It was important to the reasoning behind that decision that it was the decision to make the deportation order that was the immigration decision which was appealable not the order itself and, if the Defendant’s argument in that case was correct, then if an individual such as the Claimant in Pryor, had the benefit of a meritorious revocation, she would be in a position of uncertainty liable to the making of another deportation order and would be liable to detention under paragraph 2(2) of Schedule 3 to the 1971 Act. While Jeremy Baker J. was influenced in making his decision by the Court of Appeal decision in George, the Supreme Court only overturned that decision in so far as was necessary and only on the basis that the previous unlimited leave to remain was not revived by the revocation of the deportation order.

[131]Miss Rowlands accepted in her grounds that Pryor was rightly decided and while that would not necessarily be a determinative reason not to follow Pryor, I am persuaded that that was a correct concession by Miss Rowlands. I do not consider it arguable, as she suggested, that a sufficient change of circumstances in this case was the Secretary of State’s greater knowledge of the Claimant’s antecedents. Looking objectively at the evidence I cannot find support for any such reason for the change of mind. It is, rather, obvious that the reason for the decision to make the second order was the conclusion that the Claimant could be deported to Jamaica.

[132]If I am wrong on this issue, and Pryor is wrongly decided, then the second argument of the Claimant is that the detention under paragraph 2(3) has been rendered unlawful by reason of a breach of the Hardial Singh principles. Mr Goodman submits that there was a breach of the third principle and that, looking objectively at the evidence, there was no realistic prospect of deportation within a reasonable time. There had already elapsed a very long time during which the Secretary of State had been considering whether Jamaica was the country of nationality to which the Claimant could be sent.

[133]On the 20th January 2012 the Jamaican High Commission had said that it could not verify the Claimant’s nationality on the information presented. They confirmed their view that the Claimant was not Jamaican on the 10th January 2013. On the 22nd January 2013 a release referral was completed proposing release (SB 80 para. 41). Such enquiries as Miss Carter refers to thereafter were optimistic in the extreme and in fact there was no progress at all thereafter.

[134]Having regard to the delay up to this last period and even factoring in some inconsistent information given by the Claimant, I am unable to conclude that during this period there was a realistic prospect of deportation to Jamaica (Portugal having already been rejected by the Defendant). Thus on this second ground I conclude that the detention in this last period was rendered unlawful by breach of the Hardial Singh principles.

[135]For identical reasons I have given for rejecting ex turpi causa as a defence to the claim for unlawful detention for the second and third periods I reject it in relation to this last period.

[136]I therefore find that that the second deportation order was both unlawful when made and that detention in the period from its making to the date of release of the Claimant, was unlawful.

[137]Overall, I find that the Claimant’s detention from 18th October 2010 to the 13th November 2013 was unlawful and that he was falsely imprisoned and imprisoned in breach of

article 5 of the ECHR

during that period.

[138]The issue of damages will have to be dealt with at another hearing if the parties are unable to agree damages. I order that within 28 days of the handing down of this judgment the parties attempt to agree directions for that hearing and, in default of agreement, within a further 7 days each side shall file its proposed directions with the Court whereupon the papers shall be put before a judge for directions to be given on the papers.

Cited in 1 later judgment

Sino, R (on the application of) v Secretary of State for the Home Department (Rev 2) 2015