Mohammed, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 972 (Admin)

Case No CO/7233/2011[2014] EWHC 972 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 April 2014
Before
CLARE MOULDER(Sitting as a Deputy Judge of the High Court)
Between
THE QUEENClaimantOn the application ofMUSTAFA MOHAMMEDSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
David Chirico (instructed by Fadiga & Co) for ClaimantJulie Anderson (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 5 March 2014
JudgmentClare Moulder :

Conclusion: Breach of Hardial Singh principles

[1]This is a claim challenging the legality of the claimant’s detention under the Immigration Act 1971. Proceedings were commenced by the claimant acting in person on 27th July 2011.

Orders

[2]The matter has been before the court several times over the past few years: On 9 December 2011 permission was refused by Owen J on the papers on the basis that there was a significant risk of him re-offending and of absconding, if released on bail, his failure to cooperate with the process of obtaining an ETD and the likelihood that an ETD would be received within a reasonable time from the Moroccan authorities. On 27 February 2012 by order of Wilkie J the claimant was given permission to amend his grounds of claim and for the defendant to make disclosure of certain items. On [20] 25 April 2012, Irwin J granted permission to apply for judicial review and on 18 May 2012, Irwin J ordered bail to be granted. The claimant was released on 1 June 2012. On 19 April 2013 the matter was stayed by consent order upon the parties confirming they wished to explore the possibility of settlement. On 8 November 2013 upon the parties being unable to agree a settlement the matter was set down for a substantive hearing and the defendant was ordered to file and serve detailed grounds of defence and any further evidence relied on.

Claim in outline

[3]The claimant was detained under the Immigration Acts between 14 September 2007 and 1 June 2012.[4]The claimant’s case is that: 1) his detention was of unreasonable duration in all the circumstances and so unlawful; 2) the defendant cannot show on the balance of probabilities that the claimant would be removed within a further reasonable period, having regard to(i) the very lengthy period of time already spent in detention and(ii) the difficulties the defendant has in returning undocumented Moroccan nationals to Morocco; 3) the defendant failed to act with reasonable diligence and expedition to remove the claimant from the United Kingdom and thus was in breach of the Hardial Singh principles 2, 3 and 4; 4) in any event he was unlawfully detained from 14 September 2007 to 9 September 2008 during which time the unlawful policy considered by the Supreme Court in Lumba v the Secretary of State for the Home Department [2011] 2 WLR 671 was in force; 5) He was further falsely imprisoned between 2 December 2009 and 14 July 2011, during which time the defendant’s reviews of his detention “[did] not partake of the quality or character required to justify the continuance of detention” (R(Kambadzi) v SSHD 1 WLR 1299 at 86) because of the defendant’s reliance upon the false premise that the claimant had been convicted of indecent assault.[5]The claimant accepts in the light of Lumba and Kambadzi that the matters complained of in 4 and 5 will result in substantial damages only if the court establishes that the claimant would otherwise have been released. The core issue is therefore whether and when the claimant’s detention breached the Hardial Singh principles. The claimant submits that it must or should have been clear at all times, but in any event no later than August/October 2010, alternatively, March/May 2011 or (as a fallback position) November 2011 or February 2012 that the claimant could not be removed within a reasonable period and that he is entitled to damages in respect of those periods.

Factual background

[6]The claimant has in the past claimed that he was Palestinian but in his witness statement dated 16 May 2012 (E2) his evidence is that he was born on 8 March 1980 in Morocco and lived there until he was 10 when he moved to Spain. According to the claimant he entered the UK on 28th July 2002.

Asylum claim

[7]The claimant claimed asylum in August 2002 but failed to attend the screening interview in September 2002. His claim was refused in October 2002 on the basis of his failure to progress it.

Arrests/convictions/failure to report

[8]On 24 October 2002 the claimant was arrested for theft and served with illegal entry papers. On 5 November he was released on temporary admission with a requirement to report –he failed to report on 10 November and was listed as an absconder on 24 November 2002.[9]The Claimant has a number of convictions as follows: 10 January 2003 – shoplifting (12 month conditional discharge); 15 August 2003 – being drunk and disorderly (fine £5); Failing to surrender (fine £10); Breach of conditional discharge (fine £15); 26 November 2003 – shameless indecency (fine £75); 5 December 2003 – arrested for immigration offences: 27 January 2004 convicted of failure to observe conditions of leave to enter (six months imprisonment); assault on a constable (three months imprisonment concurrent); indecent exposure to the annoyance of residents (three months imprisonment concurrent); 24May 2007 – burglary (15 months imprisonment and £340 compensation order). In addition in March 2004, the claimant was arrested for indecent assault on a minor [and drug offences]. It is important to note at this point that the trial did not go ahead and there is no conviction for this alleged offence.

Imprisonment and deportation order

[10]The conviction of 24 May 2007 resulted in a prison sentence, which came to an end on [16] September 2007. The claimant was served with notice of decision to make a deportation order in August 2007 and on 12 October 2007 a Deportation order was served.

History of immigration detention

[11]The claimant has had two periods of immigration detention. The first period was from March 2004 to April 2005 and the second from 16 September 2007 to 1 June 2012 and it is the second period which is the subject of the claim.[12]The first period is of relevance however, both in terms of recording his history in the UK and assessing the risk of absconding and also in assessing the efforts of the Secretary of State during the second period to document the claimant and effect his deportation and the prospects of effecting a removal.[13]During the first period of immigration detention the claimant claimed to be Palestinian but was suspected by the defendant of being Moroccan. On 10 May 2004 application was made by the defendant for an Emergency Travel Document (“ETD”) to the Moroccan authorities. On 29 July the Moroccan Embassy confirmed the claimant’s fingerprints had been sent to Morocco but the application was refused on 27 September as no trace was found of him. After further investigations did not bring forward further information, the claimant was released on 10 April 2005.[14]The significant points arising out of the first detention are that firstly, although the claimant claimed to be Palestinian the defendant suspected the claimant to be Moroccan and secondly, his fingerprints were sent to the Moroccan authorities, but the Moroccan authorities rejected the application for the ETD as no trace was found of him.[15]In relation to the second period of detention this lasted for 4 years and 8 months until bail was ordered by this court and the claimant was released on 1 June 2012. I will deal below with the detailed chronology of the events whilst in detention. However I turn first to the legal framework.

Legal framework

[16]Although the summary grounds suggest that the claimant was detained under the powers contained in section 36 of the UK Borders Act 2007 and the judge who refused permission proceeded on the assumption that this was the case, it is now accepted that the powers under which the claimant was detained would be those arising under paragraph 2 of schedule 3 to the Immigration Act 1971, which so far as relevant, provides as follows:
“(2) where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of 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. (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 subparagraph (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).”

Limits on power to detain

[17]The defendant’s exercise of her statutory power to detain are limited in the manner described by Woolf J in Re Hardial Singh [1984] 1WLR 704 as restated in Lumba where Lord Dyson confirmed the following 4 principles:(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.[18]Subsequent Court of Appeal decisions as well as the Supreme Court in Lumba have considered the principles in Hardial Singh and the following guidance can be noted: In relation to the first principle (that the Secretary of State must intend to deport the person and can only use the power to detain for that purpose) it is accepted law that the word “pending” in this context simply means “until” removal, so it does not impose a requirement that removal will happen soon i.e. is “impending” (Toulson LJ at paragraph 43 in R(A)[2007] EWCA Civ 804). In relation to the second principle (that the deportee may only be detained for a period that is reasonable in all the circumstances) this is a fact sensitive exercise.

Factors in determining a reasonable period

[19]At paragraph 104 of Lumba Lord Dyson, endorsed his earlier account of the factors bearing upon how long a period of detention will be reasonable:
“How long is a reasonable period? At para 48 of my judgment in R (I), I said: "It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is 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."” [Emphasis added]

Risk of absconding and re-offending

[20]In Lumba the Supreme Court considered arguments about the relevance of(i) the risk of absconding and offending and(ii) refusal to cooperate with the removals process or accept voluntary return. In the views of the court the risk of absconding and offending are both highly relevant factors – paragraph 106 -110 and 121:
“[108] I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in R (A) to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in R (I) at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee re-offending is "an obviously relevant circumstance". [109] But the risk of re-offending is a relevant factor even if the Appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his re-offending will impede his deportation. [110] The risk of re-offending is, therefore, a relevant factor.” … [121] ….The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. …” [Emphasis added]
[110] The risk of re-offending is, therefore, a relevant factor.”

Failure to cooperate with removal and positive obstruction

[21]Where return is not possible for reasons which are extraneous to the person detained the fact that he is not willing to return voluntarily cannot be held against him as his refusal has no causal effect – paragraph 127 of Lumba:
“[127] It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect…..”

Prospects of removal

[22]Under the second Hardial Singh principle, Counsel for the defendant submitted that for the second principle, it is sufficient that there is “some prospect” of removal relying on the Court of Appeal decision in R(MH) v SSHD [2010] EWCA 1112 whereas Counsel for the claimant relied on the Supreme Court in Lumba which came after the decision in MH and argued that the test remains whether there is a “sufficient prospect” of removal. It seems to me that the point was not addressed in Lumba but the test is set out in MH at paragraph 64:
“as Toulson LJ said, there must be a “sufficient prospect” of removal to warrant continued detention, having regard to all the other circumstances of the case. What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case.”
It seems to me that MH makes it clear that the test is “sufficient prospect” but that determining whether the test of sufficiency is met in any particular case is a matter of degree and of balancing the circumstances.[23]I accept that there is a different test for the 3rd principle which is that it applies if it becomes “clear” that you are not going to be able to remove that person. There is a distinction between the second and 3rd principles and “uncertainty” as to the prospect of removal is not sufficient for the 3rd principle.

The third Hardial Singh principle

[24]The third Hardial Singh principle stands apart from the second. The burden lies on the Secretary of State to show on the balance of probabilities that at any given point removal within a reasonable period was a realistic prospect – Lord Dyson at paragraph 103 of Lumba:
“A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.” [Emphasis added]
[25]The defendant need not show certainty of removal within a specific timeframe to establish a lawful detention – Richards LJ in MH at paragraph 65:
“I do not read the judgement of Mitting J in R(A and others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removals can reasonably be expected to be effected. That would be to add an unwarranted gloss to established principles… Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur, and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention, when account is taken of all other relevant factors…”
[26]In the Court of Appeal judgement in Muqtaar [2012] EWCA Civ 1270 Richards LJ at paragraph 38:
“Mr Hussein submitted that that reasoning cannot live with the formulation of the Hardial Singh principles by the Supreme Court in Lumba, in particular at paragraphs 103 – 104 where Lord Dyson said that a convenient starting point in the application of the principles to Mr Lumba’s appeal was “to determine whether, and if so when, there is a realistic prospect that deportation will take place” and that “if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful”, and where he went on to identify factors relevant to the question of how long it is reasonable to detain a person pending removal. There is nothing to show, however, that Lord Dyson was intending to address the point made in the passage quoted above from MH, and there does not seem to me to be any inconsistency between his observations and that passage. I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur, and without any certainty that removal will occur at all.” [Emphasis added]

The fourth Hardial Singh principle

[27]Lack of diligence on the defendant’s part is a factor bearing upon reasonableness and the second and third principles. It is also a freestanding head of challenge – Mitting J in Yegorovv SSHD [2011] EWHC 3358 at paragraph 30:
“the second and fourth [Hardial Singh] principles are in play. A deportee may only be detained for a period that is reasonable in all the circumstances and the Secretary of State should act with reasonable diligence and expedition to effect removal. The 2 principles are closely linked. If the Secretary of State does not act with reasonable diligence and expedition then it is likely, perhaps inevitable, that the period of detention will become unreasonable.”
[28]The Secretary of State relies on Lord Justice McFarlane at paragraph 55 of JS (Sudan) [2013] EWCA 1378approving the distinction made by Lord Justice Carnwath in R (Krasniqi) v SSHD:
“the Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of 2 elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. 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.” [Emphasis added]

Nature of court review

[29]Counsel for the defendant submitted that the type of review to be exercised by the court is as set out in R(A) at paragraph 62:
“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.”

Evidence

[30]Counsel for the claimant submitted that in relation to the rule against hindsight, the court could assess both the evidence before the Secretary of State and other evidence which was not before the Secretary of State, but which goes to the circumstances at the date of detention. Counsel submitted that the court is not acting in a review position but is the primary decision maker. In relation to the evidence Counsel for the claimant submitted that it is for the court to decide what inferences are drawn from the facts and that it should not accept the evidence in a witness statement which is demonstrably wrong and contradicted by other evidence.[31]Counsel referred to the decision of Silber J in R (on the application of Westech College) and the decision of the Court of Appeal in R(on the application of Das).[32]Counsel for the defendant relied on the first instance decision of Sales J in Hussein [2009] EWHC 2506. At 105:
“Miss Dubinsky submitted that I should have regard to the later conduct of the Claimant, after his release on 21 August 2007, and the fact that he had not re-offended since then. She said that since the court is the judge of whether the Secretary of State in fact had reasonable grounds to detain (as explained in Youssef and A (Somalia)), the court is not bound to confine its assessment to the picture which presented itself to the Secretary of State, but can look at the matter more widely, including by looking at things which happened after the period of detention. I do not accept this. In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.”

Unlawful secret policy

[33]Lord Dyson at paragraph 5 of his judgement in Lumba stated that between April 2006 and 9 September 2008 the Secretary of State applied an unpublished policy which was described as a “near blanket ban” on release, regardless of whether removal can be achieved and the level of risk to the public. At paragraph 17 he noted that:
“the policy of blanket detention admitted of exceptions only on compassionate grounds. No formal guidance was given to case workers to give effect to this policy until on 8th November 2007 they were issued with the document (known as “Cullen 1”) which set out criteria and guidance for the identification and release of FNPs who were considered to pose the lowest risks to the public and the lowest risks of absconding…… In March 2008, an amended guidance document (known as “Cullen 2”) was issued to the caseworkers…. Attached to Cullen 1 and Cullen 2 was an extensive list of offences entitled “list of recorded crimes where release from immigration detention or at the end of custody will not be appropriate. In practice, almost all FNPs who had been sentenced to imprisonment were likely to have committed one or more such offences.”

Grounds of challenge: Breach of Hardial Singh

[34]The question that has to be determined under the challenge based on the second Hardial Singh principle is whether the claimant was detained for a period that is reasonable in all the circumstances. In this case the key factors that are particularly relevant to the determination of how long is reasonable are as follows: 1) the risk of absconding and the risk of re-offending; 2) the length of detention; 3) the obstacles preventing deportation; 4) the diligence, speed and effectiveness of the steps taken by the defendant. 1) Risk of absconding and the risk of re-offending[35]I shall start with the risk that if the claimant were released from detention, he would abscond, and the danger that if released he would commit criminal offences which, as stated above, have been stated to be of “paramount importance” since if a person absconds he will frustrate the deportation for which purpose he was detained in the first place.[36]The papers before me indicate that in the period from July 2002 to the first period of immigration detention in April 2004, the claimant absconded on 4 separate occasions (document from Suzanne Kerrigan immigration officer 58-60). 1 Having entered the UK in July 2002 and claimed asylum in August 2002, on 24 October 2002 the claimant was arrested for theft and served with illegal entry papers. On 24 October he was released on temporary admission with a requirement to report on 30 October – he failed to report; 5 November instructed by post to report on 10 November, he failed to do so and was listed as an absconder on 24 November 2002. 2 On 10 March 2003 he was arrested and on 19 March instructed to report on 26 March – once again he failed to do so and was listed as an absconder on 9 April 2003. 3 On [17] October 2003 arrested and on 9 October instructed to report on 10 October – he failed to do so. 4 On 17 November 2003 arrested – on 19 November instructed to report on 20 November – failed to do so[37]On 5 December 2003 he was arrested for immigration offences and remanded in custody. On 27 January 2004 he received a custodial sentence. On 4 March 2004 he was gate arrested and on 7 April 2004 when the case concerning indecent assault on a minor was abandoned, he was detained under the Immigration Act.[38]After the claimant was released from the first period of immigration detention in April 2005, there is evidence that on 26 September 2005 the Secretary of State was informed by police that the claimant was not reporting regularly and in March 2006, the police confirmed that the claimant had failed to report since January 2006.[39]In May 2007, having spent over three months on remand the claimant received a custodial sentence for burglary, which was then followed by the period of immigration detention now challenged in these proceedings.

Claimant submissions

[40]For the claimant Counsel submitted that the risk of absconding could have been managed by bail conditions including for example, tagging and points out that the claimant has complied with bail conditions since being granted bail by this court.[41]In relation to the risk that if released he would commit criminal offences, Counsel submitted that there is no evidence that the claimant posed a risk of harm to the public and “bare reliance” upon past convictions does not suffice. There was no independent assessment report of the danger posed by the claimant and the risk which could be inferred from past conduct short of that which could justify the length of detention in this case.

Defence submissions

[42]Counsel for the defendant submits that this case was one where there was an “extraordinarily high risk” of absconding and, given the nature of the offences committed by the claimant and referred to above, that the risk in relation to re-offending was of causing “further serious harm”. Further she suggested that the claimant’s current compliance with bail conditions could be related to awaiting the outcome of the damages proceedings.[43]She submitted that the claimant had lodged a false asylum claim (the claimant had been living in Spain so was not in need of international protection); when he was given temporary admission he absconded within days; he sought to deceive the authorities by giving a false account and name; and had no ties in the UK.

Discussion

[44]The history of this claimant demonstrates, in my view, a persistent unwillingness to comply with restrictions imposed on him by the UK authorities and a high risk of absconding, particularly when coupled with his clear unwillingness to return to Morocco although I will return to this below as the claimant’s attitude in this regard did appear to change over time.[45]Further he did have a series of convictions during the relatively short period when he was at large in the UK and two of these convictions appear to relate to offences of indecency. I note the erroneous references in certain of the detention reviews and bail summaries to the allegation that he had been convicted of indecent assault on a minor. Whilst in immigration detention he was the subject of several disciplinary incidents.[46]Accordingly, whilst in terms of gravity the risk of serious criminal offences may not have been at the highest end of the spectrum, the likelihood of offences being committed would appear from his history, again over a relatively short number of years, to be high. 2) The length of detention[47]The length of period of detention in this case at 4 years and 8 months is clearly a considerable period of time. However there is no absolute point beyond which detention is unlawful. It is one of the considerations to be taken into account.[48]Counsel for the claimant describes the period as “an extraordinarily long period of time” and notes that the sentence which preceded it was of 15 months, the custodial element of which would have been 7½ months.[49]Counsel for the defendant submits that the period whilst long is not unique. She referred, amongst others, to the case of Giwa [2013] EWHC 3189 where 4 years 8 months was held lawful and Noureddine which she submitted is “almost on all fours with this case” where the court found a period of 38 months lawful. She acknowledges, however, that each case must depend on its own facts. Further she rejects the suggestion that the period of detention should in any way be referable to the period of custody that preceded it.

Discussion

[50]Whilst I accept the submission that the period of detention is not to be compared merely with the length of the custodial sentence, I think the length of the custodial sentence is relevant in an assessment of the risk to the public if the claimant is released, and thus is a factor to be brought into the overall consideration of what is a reasonable period.[51]To the extent that Counsel for the defendant seeks to derive any support from the other cases referred to, I note that in Giwa there was a very high risk of absconding and re-offending due to the claimant’s history of offending and involvement in gang culture with his continued connections with associates from that culture and is therefore very different on its facts and in Noureddine the period was 3 years 2 months, whereas in this case the claimant was detained for over a year and a half longer. 3) The obstacles preventing deportation – claimant’s conduct[52]I turn then to consider the nature of the obstacles which stood in the path of the Secretary of State preventing a deportation including the extent to which the actions of the claimant prolonged the period of detention and the need to obtain documentation from the Moroccan authorities.[53]The evidence of the events pertaining to the claimant’s conduct in the relevant period is as follows: Having been detained in September 2007, on 5 and 28 November 2007 the claimant failed to comply with the documentation process, insisting that he was a Palestinian national On 13 December 2007 the claimant was notified of an ETD interview for 15 December 2007. On that date the claimant refused to complete the Palestine questionnaire and biodata form. (Detailed Grounds of Defence para 16) On 5 January 2008 the claimant refused to comply with a documentation request. On 28 February 2008 a letter was provided to the claimant seeking his identity card number and last known address in Palestine. On 29 February 2008 claimant indicated that he did not have a Palestinian passport or ID and he did not know his last address in Palestine. (17) On 5 June 2008, the claimant applied for assisted voluntary return to Palestine, but provided no supporting evidence and the application was refused. (19) On 11 June 2008 the claimant was interviewed to establish if he is an Algerian national and he insists on being Palestinian. (20) On 3 July 2008 the claimant applied for return under the facilitated returns scheme to Palestine. The application was approved, subject to cooperation with the documentation process. (21) On 9 September 2008 at an interview the claimant stated he did not want return to Palestine as he will be killed. (22) On 13 October 2008 the claimant withdrew his application for facilitated return to Palestine. On 25 January 2009 the claimant indicated that he wished to leave the UK. On 8 February 2009 the claimant was interviewed in order to progress travel documentation, but failed to provide any information. (25) On 13 May 2009 an interpreter interviewed the claimant who maintained his claim to be a Palestinian national. The interpreter indicated that the claimant was likely to be from the North of Morocco. (29) On 21 September 2009 a language analysis took place. The report received on 23 September 2009 indicated that the Arabic spoken by the claimant was spoken in North Africa and likely to be found in Algeria or Morocco. The claimant had claimed to be a gypsy from the mountains outside Ramallah so had no knowledge of the West Bank. (37) On 26 October 2009 the claimant made a second application for facilitated return to Palestine. (38) On 3 November 2009 claimant refused to contact the Palestinian Embassy. (39) On 2 February 2010 the claimant was interviewed and asked for the information from Spain but he maintained his claimed identity and Palestinian nationality. (43) On 16 June 2010 the claimant confirmed that he is Palestinian and his parents died in Palestine. He claimed that he had only one friend in Spain. (45). On 28July 2010 the claimant indicated that he would speak to the Moroccan Embassy, though he was a Palestinian national. (48) On 11 December 2010 the claimant indicated he wanted to see the Palestinian Embassy to see if they would issue an ETD if the Moroccan Embassy did not see him. (52) On 19 July 2011 the claimant indicated that he was willing to go to Morocco and admitted for the first time that he was a Moroccan national.

Claimant submissions

[54]Counsel for the claimant submitted that although the claimant claimed for a considerable period that he was Palestinian and not Moroccan, the defendant always treated the claimant as Moroccan from the original investigation in 2004 and this was confirmed by language analysis reports in May and September 2009. Further, she was in possession of his fingerprints from May 2004, but they were only sent to SOCA in December 2009 more than 2 years into the claimant’s detention. Counsel submits that “there is no evidence that the claimant’s positive assertions of Palestinian nationality subsequently caused the defendant to take any action which materially extended his detention”.[55]Counsel for the claimant relies on the dicta in Lumba that: “Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect” (at 127)[56]Counsel sought to distinguish the facts of Noureddine where Mitting J dismissed a claim brought by a purported Moroccan national challenging his detention of 3 years 3 months in that in that case there was plausible, detailed and potentially verifiable information apparently establishing the claimant’s claimed Algerian nationality which misled the Secretary of State into pursuing blind avenues of enquiry. Further, in Noureddine a fingerprint match in Morocco was confirmed.

Defence submissions

[57]Counsel for the defendant submitted that where a person positively obstructs removal, such as by the use of deception or refusal to sign the relevant application forms, then this will be a factor that weighs heavily in favour of detention as a weighty factor indicating a significant risk of absconding and relies on Noureddine.[58]Further she submits that the defendant satisfied the “modest” test under the second Hardial Singh principle that there was some prospect of removal. She rejected any suggestion that it is impossible to document an individual who left Morocco at any particular time.

Discussion

[59]It is clear from the chronology set out above that from November 2007 until July 2011 the claimant maintained that he was Palestinian. Although the defendant had carried out assessments through interpreters in May (A61) and September 2009 (C8) which concluded that the claimant was Moroccan, the continuing assertions notably in February and June 2010 by the claimant that he was Palestinian, even after Spain had provided information in January 2010 as to the claimant’s suspected true identity, in my view, hampered the moves to deport him in that it prevented the Secretary of State from being able to submit supporting documentation to the Moroccan authorities and further led to false lines of enquiry over a number of months in Spain. To that extent, even though the claimant originally claimed his false identity when he moved to Spain and thus the deception occurred in the past, his failure to disclose the use of the false identity to the defendant amounted in my view to a positive attempt to mislead the defendant and to that extent brought it on a par with the facts of Noureddine albeit that the precise facts of the deception were different.[60]As a result of the claimant’s conduct the defendant did not have detailed information which they could use to obtain an ETD from Morocco and the defendant was obliged to rely on the limited information available to it, sending his fingerprints to Morocco in July 2010 (A47) and submitting an ETD application in March 2011 in the wrong name.[61]In relation to returns to Morocco it is clear from the evidence of the defendant that if an ETD can be obtained, a return to Morocco can be achieved in a much shorter timeframe than is possible if reliance has to be placed on fingerprints and photographs. In the case of this claimant in my view it cannot be said that the delays in deporting him to Morocco at least in the period to July 2011 are for reasons extraneous to the person detained and had no causal effect.

Obstacles preventing deportation – the position of the Moroccan authorities

[62]The test under the second limb of Hardial Singh is whether there was a sufficient prospect of removal to justify detention. It will be convenient to consider the evidence on this point with the submissions in relation to the third limb below whilst recognising that this is a distinct test. 4) The diligence, speed and effectiveness of the steps taken by the defendant[63]Finally in determining what is a reasonable period of detention in this case, I must have regard to “the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles”.

Claimant submissions

[64]Counsel for the claimant submits that when the claimant’s fingerprints were sent to the British Embassy in July 2010 the defendant did not appear to take account of the fact that the fingerprints had already been investigated by the Moroccan authorities. Further the ETD submitted in March 2011 was only submitted 14 months after the claimant’s identity was confirmed. Defence submissions[65]Counsel for the defendant relying on the Supreme Court judgements in Lumba submits that the relevant breach must be sufficiently closely connected to the decision to detain to justify quashing it. Counsel submits that the alleged breach here is of the “inchoate notion” of an absence of what was required to satisfy the modest threshold of reasonable diligence in all the circumstances, with there being no distinct legal obligation to undertake any particular step at any time. Further she submitted that the obligation remains to show that the claimant would not have been detained anyway irrespective of the alleged lack of requisite reasonable diligence. Discussion[66]It does appear that the Secretary of State did not pay any regard to the enquiries she had carried out in relation to the claimant during the first period of detention. However, faced with what appeared to be repeated and robust claims as to his Palestinian nationality from the claimant, the chronology referred to above shows ongoing engagement with the claimant in the form of regular interviews and correspondence throughout 2007 and 2008. The chronology then continues as follows: – In April 2009 the case was raised at a specialist conclusion panel and it was decided to undertake a language analysis. On 1 May 2009 a possible trace in relation to an Algerian national was received and followed up. On 13 May 2009 an interpreter interviewed the claimant who maintained his claim to be a Palestinian national. The interpreter indicated that the claimant was likely to be from the North of Morocco. On 1 June 2009 confirmation was received that the Moroccan Embassy would not conduct a face-to-face interview to determine nationality. On 15 July 2009 case was transferred to the specialist investigation team to conduct an in-depth investigation into the claimant’s nationality. On 2 September 2009 police confirmed that the claimant claimed to be Arabic French/African on arrest. On 8 September 2009 the probation service indicated that the claimant had not provided any form of identity documentation. On 10 September 2009 Maria Gridley visited the claimant to discuss progression of his case. The claimant was provided with the contact details of the Palestinian Embassy so that he could contact them if he wished to progress his case. On 21 September 2009 a language analysis took place. Report received on 23 September 2009 indicated that the Arabic spoken by the claimant was spoken in North Africa and likely to be found in Algeria or Morocco. Claimant had claimed to be a gypsy from the mountains outside Ramallah, so had no knowledge of the West Bank. On 13 November 2009 the police confirmed that there were no identity documents on the claimant when he was arrested for public indecency On 23 September 2009 fingerprints were sent for Eurodac checks and SOCA to send to Spain. On 13 January 2010 Spain provides information as to the claimant’s suspected true identity and biodata. On 2 February 2010 the claimant was interviewed and asked for the information from Spain but he maintained his claimed identity and Palestinian nationality. On 5 February 2010 further information was sought from the Spanish authorities and again on 19 February 2010 and 31 March 2010. On 20 April 2010 a request was sent to FCO to liaise with the Spanish authorities. Various contacts were made by the FCO in follow-up until 24 May 2010 when contact details for an inspector in Spain were provided. Contact was made with the Spanish inspector and requests for information made. On 11 June 2010 Spanish authorities provided details of another department to assist with the enquiries in relation to those suspected to be the claimant’s parents in Spain. On 16 June 2010 the claimant confirmed that he is Palestinian and his parents died in Palestine. He claimed that he had only one friend in Spain. On 24 June 2010 further requests for information were made to the Spanish authorities to which they responded indicating that they had no further information in relation to parents. On 1 July 2010 information was requested from the Spanish authorities in relation to the claim for foreign identity card made there. On 28 July 2010 the claimant indicated that he would speak to the Moroccan Embassy, though he was a Palestinian national. On 22 October 2010 Spanish authorities advised that the claimant had administrative proceedings against him but that he did not provide identity documentation.[67]It seems to me that the Secretary of State continued to act with diligence during this period and sought to obtain the deportation of the claimant to Morocco. Counsel for the claimant questioned why the ETD application was not sent to the Moroccan Embassy until March 2011 given that the defendant had known from the language analysis in 2009 that the claimant was Moroccan. However, in my view, this ignores the fact that the defendant lacked detailed information about the claimant’s identity and the fact that the claimant repeatedly pursued his claim to be Palestinian from November 2007 to mid 2010. Further during 2010 the defendant was pursuing enquiries with the Spanish authorities in relation to the identity of the claimant as a result of the claimant having used a false name in Spain and having been given an ID number by the Spanish authorities. The application in March 2011 was in the name of Noreden Aigirep and any delay with the Moroccan authorities caused by the submission in the wrong name was not caused by any lack of diligence on the part of the Secretary of State.[68]I turn now to the evidence concerning the prospects of removal which is relevant to both the 2nd and 3rdHardial Singh principles; the test in relation to the former being whether there was a “sufficient prospect” of removal and in relation to the latter, whether it was apparent that the Secretary of State would not be able to effect deportation within a reasonable period.

Dealings with the Moroccan authorities

[69]The relevant events were as follows: In July 2010 the claimant’s fingerprints were sent to the Moroccan authorities. (A47) On 15 November 2010 an email was sent to the British Embassy in Morocco enquiring about the progress with the fingerprint checks. (B45 at 26) On 11 December 2010 the claimant indicated he wanted to see the Palestinian Embassy to see if they would issue an ETD if the Moroccan Embassy did not see him. On 22 December 2010 British Embassy in Morocco advised a meeting would be arranged with the Moroccan Ministry of affairs to discuss the case. On 21 February 2011 a request for fingerprints was made. On 28 February 2011 claimant indicated that he wanted to see the Moroccan Embassy. On 8 March 2011 ETD application was sent to the Moroccan Embassy. According to the witness statement dated 11 April 2012 of Maria Gridley, the case owner in the Criminal Casework Directorate Investigation and Documentation Team, the application included supporting evidence in the form of a positive Interpol check which was conducted in Spain when the claimant received his ID number. He gave his identity as Noroden Aigirep. (A34) On 14 March 2011 a letter was sent to an official at the Moroccan consulate to request expedition of the ETD application. On 25 March 2011 the Moroccan Embassy confirmed receipt of the ETD application, but photographs were missing and were resent on that date. From March 2011 to February 2012 discussions were ongoing at a diplomatic level with a view to agreeing a formal process for verification of fingerprints with the Moroccan authorities. On 3 May 2011 a note verbale was presented to the Moroccan authorities by the Foreign & Commonwealth Office requesting assistance with the verification of the claimant’s fingerprints (and three other cases) against the national database to confirm nationality. The case was placed in the regular updates system with the liaison team. On 5 May 2011 the FCO indicated that it would raise the issue of fingerprints with Moroccan officials on 9 May 2011 On 2 June 2011 the FCO indicated that it would chase up the Moroccan departments contacted in relation to the fingerprint checks. On 27 June 2011 the issue of agreeing a memorandum of understanding on documentation through fingerprints was to be raised by the deputy head of mission with the Moroccan Ministry of the Interior. On 14 July 2011 the caseworker was informed that the fingerprint issue would be raised with the Moroccan authorities again on 11 September 2011 on a UK visit to Morocco. On 14 of July 2011 Maria Gridley sent an email to CROS asking for assistance, noting that. “My subject has been in detention for nearly 4 years.” On 18 July 2011 Chris Ackerley at CROS responded. “This case is currently on the Moroccan priority list sent to the Moroccan consulate on the first Wednesday of every month. We have not had an outcome to this case as yet but will be reviewing this case again on 3 August 2011. We will update CID with any outcome we receive.” In July 2011 the claimant indicated that he was willing to go to Morocco and admitted for the first time that he was Moroccan national. He said he was not Noreden Aigirep but that was a Spanish friend in Spain. (Detailed Grounds of Defence para 59) On 25 July 2011 the claimant provided the UKBA with an application for a Moroccan ETD and bio data in the name of Mustafa Mohammed and in August this was sent to the Moroccan consulate, together with a letter explaining the reason for the change of name and requesting that it be considered alongside the application that was originally submitted. (para 12 of witness statement dated 11th April 2012 of Maria Gridley) On 18 August 2011 information was provided from the FCO that the governor of the British Embassy in Rabat was going to pursue the issue of agreeing an MOU on fingerprint identification with the Moroccan authorities. (Detailed Grounds of Defence para 62) 30 August – confirmation that ETD application received. (Detailed Grounds of Defence 63) 14 September – the claimant indicated that he would attend and interview with Moroccan authorities. (Detailed Grounds of Defence para 64)[70]On 28 September 2011 Maria Gridley sent an email to CROS requesting an update on the ETD application and advising them that the claimant had requested a face-to-face interview with the Moroccan officials. On 7 October 2011 she received a reply from CROS that they were still waiting for a phone call from the Moroccan consulate to confirm the position and advising her that it is in the discretion of the Moroccan officials whether an interview is conducted. (para 13-14 of witness statement dated 11th April 2012 of Maria Gridley) 19 October – the claimant agreed to chase up ETD but could not get through to Embassy on phone (65) – claimant made five attempts according to the detention review (A53)[71]Further emails were sent to CROS requesting an update on the ETD application on 28 October 2011, 7 and 11 November 2011. On 16 and 18 November the Embassy confirmed the application was subject to verification checks that were ongoing. On 28 November 2011 an email was sent to CROS requesting that a telephone interview is arranged between the applicant and Moroccan consulate. (para 19-26 of witness statement dated 11th April 2012 of Maria Gridley). 19 January 2012 – Embassy confirmed checks still ongoing (Detailed Grounds of Defence para 68) On 1 February 2012 Maria Gridley received an email from CROS stating that the case remained on the list of 10 most important cases of detained persons which had been brought to the attention of ministers and which therefore require an urgent response. (para 28 of witness statement dated 11th April 2012 of Maria Gridley). On 10 February CROS stated they had spoken to the Moroccan consulate and continued to await confirmation of identity from checks in Morocco. According to Maria Gridley in her witness statement (para 29):
“No timescale for a response was given.”
[72]On 6 March 2012 an email was received from CROS stating they had spoken to the Moroccan consulate and the Moroccan officials had requested scanned copies of the ETD application packs, including supporting evidence. Maria Gridley states in her witness statement (para 30):
“it is hoped that this is an indication that the Moroccan officials are dealing with the application urgently as requested.”

Claimant submissions

[73]Counsel for the claimant advanced several dates as points at which he submitted it is clear from the evidence both in this case and in the other cases which have come before the administrative court concerning the deportation of Moroccan nationals, that the claimant could not be removed within a reasonable period having regard to the time that the claimant had already spent in detention.[74]Those points were August/October 2010, March 2011(or at the latest May 2011 when judgement in Mjemer [2011] EWHC 1514(Admin)) was handed down) and January/February 2012. August/October 2010[75]Counsel for the claimant submitted that there was no realistic prospect of being able to deport the claimant at this point, since: 1) No ETD application had been submitted, even though the defendant had known from interviews with the claimant conducted by interpreters in May 2009 and September 2009 that the claimant was from Morocco (as well as having the information from his previous detention in 2004); 2) the claimant’s fingerprints had been submitted to the Moroccan authorities in July 2010 but given that this had not produced results when sent previously in 2004, this was unlikely to produce results; 3) the FCO evidence in Mjemer (paragraph 33.5) where an email in April 2010 read: “there is only one way to establish if a person is Moroccan and that is through their fingerprints” but by April 2010 this had “never produced results”; 4) the claimant left Morocco before the age of 16, so Counsel suggested that it is likely that his fingerprints may not in any event be held (see email A63 which confirms that fingerprints are taken at the age of 16 and the witness statement of the claimant which confirms he left Morocco at the age of 10); 5) by October 2010 the enquiries with the Spanish authorities had been exhausted.

March 2011/May 2011

[76]Counsel for the claimant advanced the following submissions in relation to the prospect of being to deport the claimant at this point: Counsel also referred to the judgement in R (Harrak) v SSHD [2010] EW HC 2621 at paragraph 43 and 44:
“however, there is also evidence that in this particular case the defendant was aware as from 23 February 2009 based on RGDU advice, that “without supporting documents” it might take up to 24 months for the ETD to be obtained. Although the defendant says this reference to 24 months may well be a mistake, there is little to support such a submission, not least because this advice as to the 24 month period is referred to in all the detention reviews thereafter….”
In that case, King J concluded at 46 and 47:
“I find that it must have been clear to the defendant from 23rd February 2009 onwards that the application might take up to 24 months for the necessary documentation and hence the claimant’s removal, to come to fruition. But by this date the claimant had already been in detention for a very long time, namely a period of about 2½ years. It was beholden in the circumstances for the defendant’s officials to be particularly diligent in keeping in contact with the embassy to check on the progress of the application and to take expeditious steps to remedy any known deficiencies in the documentation accompanying the ETD application, by for example, seeking to arrange the embassy interview which appears to have been contemplated for the first time only in March 2010, or thereabouts, if the defendant was to continue from that date to be able to assert that removal within a reasonable time was a realistic or reasonable prospect… The conclusion I have come to is that in the circumstances the defendant has been unable to establish that as from the 23rd February 2009, there was ever a reasonable prospect of removing the claimant within a reasonable time. Given the length of the detention prior to that date, a far more predictable date within a much shorter time frame than “anything between 6 and 24 months” or “up to 24 months” was required to be established, than that which the defendant in reality could point to in this case….” 2) There were emails in December 2010 which suggested that there was a blockage in the process (A63-64). On 3 December 2010 the British Embassy official in Rabat sent an email: “…I’m still not getting anywhere. There is a blockage, I know this because the fingerprints for one of the subjects submitted was identified when I was with my contact ….. Why I cannot say? This is an ideal subject/area to be included with the planned MOUs etc currently being talked about between SCO, HO and Morocco.”
Counsel submitted that Mjemer is of particular importance because it relates to an individual who had been extremely dishonest about his identity, his fingerprints were submitted to the Moroccan authorities at the same time as the claimant’s fingerprints and his detention was found to be unlawful by reference to a lack of progress in May 2011.

January/February 2012

[77]By this point Counsel for the claimant submitted that there was no realistic prospect for the following reasons: 1) The original ETD application had been outstanding for one year, but the ETD application submitted in the correct name had only been outstanding for 6 months since August 2011. The claimant had been detained for 4 years 5 months and could therefore be detained for a further 12 to 18 months. 2) In June 2011 emails from the UKBA to the British Embassy in Morocco stated that they had been waiting for the outcome of the fingerprint searches for almost one year and refers to the Moroccans continuing to “sit on the outcome” of the searches. 3) The claimant was unable to get through to the Embassy in October 2011 to progress matters himself-he made 5 attempts (A53) and no interview was arranged by CROS between the claimant and the Moroccan authorities despite having been requested by Maria Gridley in November 2011. 4) On 10 February CROS stated they had spoken to the Moroccan consulate and continued to await confirmation of identity from checks in Morocco. According to Maria Gridley in her witness statement (para 29):
“No timescale for a response was given.”

Defence submissions

[78]Counsel for the defendant submitted that: 1) The third principle effectively only applies where there was some barrier to effecting deportation and therefore did not apply in the present case where there were merely what she termed “documentation issues”. She contrasted it with the case of Muqtaar where an injunction from the European Court of Human Rights precluded removal, but was found as not sufficient to meet the 3rd principle. She submitted that at no point was it clear that it was impossible to remove the claimant within the reasonable period. She submitted that pursuant to the jurisprudence mere uncertainty as to when removal will be effected will not do to found a breach of the 3rdHardial Singh principle. She further submitted that in circumstances where the country of nationality had not refused to consider an application for an ETD but was considering such an application, along with diplomatic steps being taken by the UK diplomatic corps in Morocco, then it cannot be shown that the 3rd principle is breached. 2) The evidence indicates that far from rejecting the application on the basis that the claimant allegedly left Morocco before a fingerprint system was in use, the Moroccan authorities were content to engage with the UK authorities in relation to this case. 3) On 6 March 2012 an email was received from CROS stating they had spoken to the Moroccan consulate and the Moroccan officials had requested scanned copies of the ETD application packs, including supporting evidence. Maria Gridley states in her witness statement (para 30):

Defence submissions

“it is hoped that this is an indication that the Moroccan officials are dealing with the application urgently as requested.”
This evidence is consistent with the evidence apparently given in the case of R(Noureddine) v SSHD and referred to at paragraph 72 of the judgement where the UKBA guidance for Moroccan cases is cited:
“The guidance goes on to note that where originals or copies of supporting evidence exists, it takes 6 months plus to obtain an emergency travel document, but when no supporting evidence exists, it takes 12 months plus.” 5) At paragraph 79 of the judgment in Noureddine the following statistics about the success rate of UKBA in obtaining emergency travel documents from Morocco were given: “In the period from February 2008 to January 2012, 4 years, 40 applications were made for emergency travel document for foreign national prisoners of which 38 were granted…… What those figures show, taken together, is that at worst out of 40 applications for emergency travel documents for foreign national prisoners submitted between February 2008 and January 2012, all but 3 had been granted by 30th April 2012…” 6) It was a moving picture with the Moroccan authorities and things change. 7) It was open to the claimant at any time to provide supporting documentation and/or return voluntarily. In her witness statement Maria Gridley states (para 33 to 34): “I can confirm that it is only the claimant’s failure to provide the normal travel documentation expected of those entering the UK which has delayed removal and it can be affected [sic] as soon as a document is issued. Finally, as noted above, it is possible for Moroccan citizens to apply directly to the Embassy for travel and identity documentation in the usual way.”

Discussion

[79]By August 2010 fingerprints had been submitted and although the previous application in 2004 had failed to produce results, in my view, this does not mean that it would necessarily fail some 6 years later. To that extent I accept the defendant’s submission that the position could have changed.[80]In relation to the submission that the fingerprint match was bound to fail because the claimant was too young when he left Morocco to have been subject to compulsory fingerprinting, this is a possibility but in my view not established on the evidence and there was no evidence to this effect before the defendant at this time. That account of his early life only appears in his later witness statement in 2012. In 2010 the claimant was maintaining his Palestinian identity and in an interview in June 2010 that his parents died in Palestine.[81]No ETD application had been submitted but the defendant was actively pursuing the case and (in August 2010) confirmation of his identity with the Spanish authorities which, if successful, would have enabled them to provide supporting documentation to the Moroccan authorities. Although the enquiries with the Spanish authorities ended in October, the defendant believed that she had established his identity. It is clear from the evidence that this in turn should have speeded up the process of obtaining an ETD. Although I note the evidence referred to above and disclosed in Mjemer that fingerprinting had never produced results, the evidence in Noureddine was that between February 2008 and January 2012 40 applications were made for ETDs for foreign national prisoners of which 38 were granted. Although no details are provided as to what degree of cooperation or supporting documentation was involved in these cases, it suggests that it is possible to obtain an ETD and at this point it is realistic for the defendant to take the view that deportation can be achieved. I note the conclusion of King J in Harrak cited above, but each case must be considered on its facts and in my view the evidence in this case supports the conclusion that the defendant was actively pursuing the matter and there was no lack of diligence in this regard.

March 2011/May 2011

[82]At this point an ETD application was submitted but the claimant had already been detained for 3½ years. The evidence of the defendant is that the timescale for obtaining an ETD when submitted with supporting evidence is up to 6 months and where there is no supporting evidence up to 12 months can be required or longer, depending on the extent to which the individual cooperates and identification.[83]In relation to the claimant’s reliance of the finding in Mjemer I acknowledge that some of the emails with the Moroccan authorities concerning fingerprints relate to both the present case and the claimant in the other case. However it seems to me that the email exchanges referred to in Maria Gridley’s witness statement are a distinct set of circumstances and whilst some of the factual circumstances are common to both cases, others are not; for example the fact that in Mjemer 3 months had passed from the date of chasing. Therefore, in my view each case must be judged on its own facts. Further I note that in addition to the attempt to match fingerprints, in March 2011 the application for an ETD was submitted and this included supporting evidence in the form of a positive Interpol check which was conducted in Spain when he received his ID number. Although this identity turned out to be false the defendant was unaware of this at the time they submitted the application in March 2011 and based on the facts known to the defendant at that time, I do not think it can be said there was no realistic prospect of removal. I reject any suggestion that I should conclude that there was no realistic prospect of removal because in hindsight it is apparent that the claimant had led the defendant to submit the application in a false identity.[84]From the statistics quoted of 260 returns to the fourth quarter of 2011 it is not evident how many were enforced removals and how many were voluntary. However these statistics do support in my view a realistic prospect of removal.[85]As to the comparison with the finding in Raki again the factual situation was different: in that case the ETD application was still outstanding after 3 years.

October2011/January/February 2012

[86]Although the claimant was not able to progress the matter through his phone calls in October 2011, I do not think this of itself leads to a conclusion that in October 2011 there was no realistic prospect of deportation within a reasonable period given the evidence of the diplomatic correspondence in October and November. On 9th November CROS said that the official had promised to provide an update and on 16th and 18th November the Embassy confirmed that the application was subject to verification checks that were ongoing. On 19 January 2012 the Embassy confirmed that checks were still ongoing and on 10th February the consulate confirmed that it was awaiting confirmation of identity from checks in Morocco.[87]By February 2012 the ETD application had been outstanding in the correct name for 6 months and the fingerprints had been submitted in July 2010. Whilst there is some diplomatic activity in my view the email correspondence over many months, in my view, shows a lack of progress and suggests a reluctance by the Moroccan authorities to assist. I note the hopes expressed by Maria Ridley and Mark Griffiths in their witness statements that the request in March 2012 by the Moroccan authorities for copies of the ETD application is an indication that the application is under urgent consideration but, even if this is a correct inference (and there is no other evidence to support their views and the history of the matter would tend to suggest otherwise), this cannot affect the position as assessed in February 2012.[88]I do not think that any weight should be attributed to the claimant’s failure to provide “the normal travel documentation” in assessing whether there is a realistic prospect of removal. The suggestion that the claimant could apply directly to the Embassy for travel and identity documentation ignores in my view, the evidence that the claimant has tried to contact the Moroccan Embassy directly and was unable to do so. Counsel for the defendant submitted that the claimant could have assisted the process by obtaining his birth certificate and that this could have been done through NGOs working in Morocco, even if he did not have family who could assist him. I have no evidence as to how long such a step would take and there is no suggestion in this case that the claimant intended to take such a step in February 2012. In assessing therefore whether or not there was a realistic prospect of removal, I do not think any significant weight can be given to this possibility. Conclusion: Breach of Hardial Singh principles 1). Overall conclusion on “reasonable period”

August/October 2010

[89]In my view, in August and in October 2010 it can be said that there was still a realistic prospect of removal, even though there was no certainty that the removal would occur and no finite time and when account is taken of the other relevant factors, particularly the risk of absconding and re-offending, at this point there was sufficient prospect of removal to warrant continued detention. I do not think there is any evidence to support the submission that it was “entirely foreseeable” that stringent bail conditions would have “significantly reduced the risk” of absconding and do not think that any support can be derived from what has happened since the claimant has been released on bail in relation to the assessment of the risk at the time based on the claimant’s prior history of absconding. The claimant had obstructed the process and caused the defendant to spend a large part of 2010 pursuing enquiries with the Spanish authorities. In terms of the timescale to obtain an ETD the defendant was entitled to believe that they knew the identity of the claimant and that it would not be relying on fingerprints alone. As stated above there is little, if any, evidence before the defendant at that point to support the assertion that due to the age at which he left Morocco, the claimant’s fingerprints were not held at all. I reject the submission that the delays in seeking to document him are unexplained. I think the chronology of how he repeatedly claimed to be Palestinian and then the enquiries with Spain do explain why the ETD was not submitted earlier to the Moroccan authorities either at the outset of detention or following the linguistic analysis. In these circumstances I do not think that the erroneous references in the bail reviews to a conviction for indecent assault on a minor had the effect of extending the detention and the overall period remained reasonable in all the circumstances.

March/May 2011

[90]In my view by March 2011 there was a pending ETD application and in the circumstances at March/May 2011 a sufficient prospect of removal to warrant detention when account is taken of all other relevant factors including the risk of absconding and re-offending. I note the obstacles in terms of likely time to obtain an ETD as found in Mjemer and the apparent blockage in the systembut the defendant was not relying solely on fingerprints: believing that they knew the identity of the claimant (as a result of the claimant’s original false claim to the Spanish authorities) they had submitted an ETD application. Further the issue of fingerprints was also being pursued through diplomatic channels.

February 2012

[91]By February 2012 the claimant had been detained for a period of 4 years 5 months. This is an extremely long time both in absolute terms and by comparison with the other similar cases. The high risk of absconding and the likelihood of re-offending remained but this cannot justify indefinite detention. In this regard I note the observation of Lord Dyson in relation to Mr Lumba, who had been in detention for 54 months that “there must come a time when however grave the risk of absconding and however great the risk of serious offending, it ceases to be lawful to detain a person pending deportation.”[92]The defendant was continuing to take steps to deport the claimant: it is clear from the witness statement of Maria Gridley that she was trying to chase up the application throughout the autumn of 2011 into January and February 2012. Since the claimant had finally admitted his true identity in July 2011 the defendant had been able to submit an ETD application in the correct name. However there was considerable uncertainty in my view as to whether removal was a realistic prospect: the claimant could not get through to the Embassy; chasing by CROS again led merely to the response that the matter was ongoing with no timescale for a response; it was stated to be on the top 10 list for consideration but diplomatic efforts had been going on for some months without any apparent progress.[93]I return to the test as formulated by Richards LJ in MH v SSHD [2010] EWCA 1112 at paragraph 65. “There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur, and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention, when account is taken of all other relevant factors…”[94]In my view by February 2012 the uncertainty as to the prospect of removal when weighed against the other factors in particular the length of time for which the claimant had been detained, meant the point had been reached at which the risk of absconding and re-offending was outweighed by the other factors. I do not accept that the evidence supports Counsel for the defendant’s submission that this case was one where there was an “extraordinarily high risk” of absconding nor, given the nature of the offences committed by the claimant and referred to above, that the risk of re-offending was of causing “further serious harm”.[95]The precise point in time is difficult to establish, but in my view, by February 2012 the obstacles preventing deportation, namely the evident lack of progress with the Moroccan authorities were such that when applying the test for removal under the second Hardial Singh principle that there must be “a sufficient prospect of removal to warrant continued detention, when account is taken of all other relevant factors”, when the obstacles to removal are considered together with the other factors, and in particular the length of time for which the claimant had been detained at this point, in my view by February 2012 it was no longer a reasonable period. 2) Overall conclusion on third Hardial Singh principle[96]I accept the submission that uncertainty as to when or whether removal will be effected does not found a breach of the 3rd Hardial Singh principle. However, the test is whether it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period. In other words the test is not whether there is an absolute barrier to deportation but whether it was clear that deportation would not be effected within a reasonable period.[97]I reject the submission that in the present case, it can be said the barrier was “merely documentation issues”. Even with the cooperation of the claimant, the evidence indicates that the defendant was unable to make progress and by February 2012 it seems to me that on the evidence not only was the timescale uncertain, but taking account of the time already held in detention it was apparent that there was no longer a realistic prospect of achieving it within a reasonable period. The timescales indicated in the evidence, both in this case and the other cases referred to above, are of a general nature and do not provide any definitive guidance in the circumstances of this case as to the timeframe going forward as at February 2012 when the ETD application has been outstanding since the previous August and the original application since March 2011 and having regard to the diplomatic activity referred to above. As stated above the hopes expressed by Maria Gridley and Mark Griffiths that the request in March 2012 was an indication that the Moroccan officials were then dealing with the application urgently, even if a correct inference (and there is no other evidence to support their views and the history of the matter would tend to suggest otherwise), cannot affect the position as assessed in February 2012.[98]In conclusion I find on the evidence that it cannot be said that in February 2012 it was clear that deportation would not be effected, but at the point when the claimant had already been detained for 4 years 5 months the question is whether it could be effected in a reasonable period. Given the length of the detention, in these circumstances the reasonable period would have had to have been short – a matter of days or a few weeks. In February 2012 the lengthy history of the exchanges with the Moroccan authorities and the lack of progress during the preceding 6 months despite the efforts of the defendant and the active cooperation of the claimant culminating with an email that indicates no timescale for a response, means that it was apparent on the evidence before the defendant at that point that deportation would not occur in a matter of days or a few weeks and therefore if (contrary to my finding above) the detention was still within the reasonable period, as an objective matter in my view it is apparent by February 2012 that the Secretary of State will not be able to effect deportation within a reasonable period.[99]Although the Secretary of State appears to have ignored the earlier application to Morocco during the claimants first period of immigration detention, I do not think that this failure is sufficient to support a finding of illegality under the 4thHardial Singh principle. I accept that allegations of maladministration do not make out a claim under this head and in order to do so the conduct must cross the line to constitute illegality. Taken as a whole, although there were months, where there was little progress, it seems to me that the defendant acted with reasonable diligence and expedition, as is evident from the chronology referred to above. Applying the test as formulated in Krasniqi and cited above:
“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.” [Emphasis added]
[100]In my view, it can be said that the defendant could have acted more quickly at times, but such failings as there were other did not cross the line and amount to illegality. Even if the defendant should have submitted an ETD earlier than March 2011 it has to be established that but for the failure the claimant would not have been detained and given the risk of absconding and re-offending in this case in my view he would have remained in detention during this period.

Flawed detention review

[101]In relation to the claim of false imprisonment between December 2009 and 14 July 2011 because of the defendant’s reliance upon the false premise that the claimant had been convicted of indecent assault, whilst I do not underestimate the significance of such an error, in my view it is likely, given the claimant’s history of failure to report and other offending that the error did not have a material effect.

Unlawful policy

[102]In relation to the claim that the claimant was unlawfully detained pursuant to an unlawful policy, the claimant relied on the reference in the detention review (G 200) dated 20 May 2008 where it states “case does not meet the criteria for release under Operation Cullen and therefore I agree that detention is appropriate and necessary in order to effect removal”.[103]Counsel for the defendant submitted that this meant that the claimant did not meet the grounds for release for compassionate reasons.[104]In my view the correct inference from the statement in the detention review is that Operation Cullen was being applied to the claimant and in accordance with the Supreme Court decision in Lumba, the claimantwas being held pursuant to an unlawful policy. Counsel for the claimant acknowledged that the claimant is not entitled to an award of damages unless he can demonstrate that he would otherwise have been released and Counsel accepted that the claimant would not have been released within this period. The claimant is therefore entitled to a declaration, but not to an award of damages in this regard.

Cited in 2 later judgments