AG, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 1309 (Admin)

Case No CO/12277/2011[2015] EWHC 1309 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2015
Before
RICHARD CLAYTON QC(sitting as a Deputy Judge of the High Court)
Between
The QueenClaimantOn the application of A GClaimantSecretary of State for the Home DepartmentDefendant
Stephanie Harrison QC and Nicola Braganza (instructed by Birnberg Peirce & Partners) for ClaimantSarabjit Singh (instructed by Treasury Solicitors) for DefendantHearing Hearing dates: 22 nd, 23 rd October 2014 & 5 th November 2014
JudgmentRichard Clayton QC :Introduction
[1]This case concerns the legality of the authorisation and continuation of the detention of the Claimant, a Somali national, under administrative powers contained in sections 36(1)(a) and 36(2) of the UK Borders Act 2007 (the 2007 Act) and Schedule 3 paragraph (2)(3) of the Immigration Act 1971 (the 1971 Act) from 8 July 2010 to 26 February 2013, when he was released on bail. The Claimant was detained first, pending consideration of whether to make an automatic deportation order (between 8 July 2010 and 7 December 2010), and thereafter, pending removal between 7 December 2010 and 26 February 2013 when the Claimant was granted bail. In total, the Claimant was detained for a period in excess of 2 years and 7 months (just under 32 months).[2]On 8 February 2008 when he was 17, the Claimant was convicted of causing grievous bodily harm and was sentenced to 5 years imprisonment. No recommendation for his deportation was made. The Claimant was also convicted of violent disorder on the 3 July 2009 for which he received a 2 year concurrent prison sentence. On 21 May 2008, whilst the Claimant was serving his sentence, his son, Q O, was born.[3]The wide statutory powers conferred on the executive under the Immigration Act 1971 to administratively detain individuals pending consideration of their deportation are constrained by the implied limits contained in the well-known principles laid down in R v Governor of Durham prison ex parte Hardial Singh [1984] 1 All ER 983, endorsed by the Supreme Court in Lumba [2012] 1 AC 245. However, in fact, the principal argument at the hearing concerned a complaint that the Secretary of State has breached her duty of candour and/or had acted unfairly. Accordingly, the present case raises the following issues, as I understand it: i) whether the Secretary of State breached the duty of candour and/or acted with conspicuous unfairness by failing to disclose relevant material when first identified in December 2012, which consisted of the details of the claims for asylum of the Claimant’s mother and other close relatives whose accounts in particular of their clan group, their place of residence in Mogadishu and experience of past trauma and abuse had all been accepted by the Secretary of State when they had been recognised by refugees. The Claimant contends that this material provides a consistent account of key matters and gave detail of the Claimant’s own history, which would have assisted in assessing to the requite low standard his clan and place of origin in Mogadishu, notwithstanding the discrepancies within his own account; ii) whether the Secretary of State intended to deport the Claimant and only used the power to detain for that purpose (Hardial Singh principle 1); iii) whether, before the expiry of the reasonable period, it became apparent that the Secretary of State would not be able to effect deportation within that reasonable period (Hardial Singh principle 3); iv) whether the Secretary of State acted with reasonable diligence and expedition to effect removal (Hardial Singh principle 4); and v) whether the Secretary of State breached section 55 of the Borders, Citizenship and Immigration Act 2009 which requires her to have regard to the need to safeguard and promote the welfare of children whilst carrying out its functions.[4]The case was estimated to last up to 1 ½ days, but, in the event, took three very full days and required Counsel for the Secretary of State to reply in part in writing. This reflected the considerable amount of evidence and case law that was placed before me.

FACTUAL BACKGROUND

[5]The Claimant is a Somali national, born on 17 January 1989, who is now aged 26. He arrived in the UK on 7 August 2004 as an unaccompanied minor, then aged 15, and claimed asylum on the basis of his and his family's minority clan membership and fear of the Hawiye majority clan militia in Mogadishu.[6]On 21 September 2004 his claim was refused, but he was granted discretionary leave as a minor until 16 February 2007. He did not make an application for further leave when this period of discretionary leave expired, and he, therefore, remained in the UK without leave. The Claimant initially lived in foster care for a few weeks and then with his aunts and cousins who had been granted refugee status, but he had difficulty adjusting to life in the UK and separation from his own family. He lived with his relatives for about a year and then moved to a hostel for some time. He subsequently started smoking cannabis and drinking alcohol.[7]On 15 August 2007 the Claimant married H O A in a traditional Islamic ceremony.[8]On 30 October 2007 the Claimant's mother, F A W, arrived in the UK with his half-brother, and were granted refugee status on 16 May 2008. Her second husband was murdered in Somalia prior to her fleeing to the UK. F A W is a survivor of torture and gang rape and is severely traumatized. The Claimant has a large extended family in the UK of aunts, uncles and cousins, all of which had refugee status, Indefinite Leave to Remain or British nationality.

Convictions

[9]From around 2006 the Claimant committed a number of criminal offences. On 8 February 2008 the Claimant was convicted of causing grievous bodily harm and received a determinate sentence of 5 years. No recommendation for his deportation was made. He was 17 at the time of the index offence. He was also convicted of violent disorder on the 3 July 2009 for which he received a 2 year concurrent prison sentence.

Contact between the Claimant and his son

[10]The Claimant’s wife, H O, was pregnant when the Claimant was convicted and gave birth to their son, Q O, on 21 May 2008, whilst the Claimant was serving his sentence in custody. The Claimant initially had visits with H O and Q O and the other members of his extended family. However, when he was transferred to HMP Doncaster, he maintained contact with his son and his family by telephone. When the Claimant was transferred into immigration detention at Colnbrook in London, contact was resumed with his son and the child's mother.

The decision to deport

[11]On 29 November 2008 the Secretary of State informed the Claimant that he was liable to automatic deportation under section 32 of the UK Borders Act 2007. The Claimant responded in representations made on 18 February 2009, to the effect that he could not be deported because he was a refugee and/or entitled to humanitarian protection under Article 3 European Convention on Human Rights (ECHR) and because it would breach his Article 8 ECHR rights to family life. On 1 June 2010 he had a screening interview where the Claimant restated his asylum claim on the basis of his and his family's minority clan membership and that he had no family in Somalia and a son in the UK.

Immigration Detention

[12]On 8 July 2010 the Claimant was due to be conditionally released on licence until 6 January 2013. However, he was immediately detained by the Secretary of State under section 36(1)(a) of the 2007 Act, while the Secretary of State considered whether to subject him to automatic deportation under section 32(5) of the 2007 Act. No such decision could be taken until the determination of the outstanding claim for asylum and his human rights claim under Article 8 ECHR, because of the statutory exceptions of automatic deportation in section 33 to the 2007 Act.[13]At the time that he was detained by the Secretary of State, the Claimant was assessed as a medium risk of reoffending and a high risk of harm, if he did offend, and absconding was relied upon because of the criminal offence. The Secretary of State did not accept that there was a biological relationship between the Claimant and his son. The barriers to removal identified were the outstanding claim of asylum, the fact that he had an in country right of appeal and the lack of an Emergency Travel document. The particular difficulties of effecting removals to Somalia and the limited if any actual removals taking place were not specifically addressed.[14]These reasons remained broadly the same for the next 5 months. No steps were taken between the 8 July 2010 and 1 November 2010 to consider his asylum and human rights claim. An internal GCID record dated 1 November 2010 said that the claim was not being determined because "he is from Somalia and there is no chance of removing him to Somalia, it is not considered a priority. However if a decision is required urgently a decision can be made within the month." His claims were subsequently considered and determined five weeks later on 7 December 2010.[15]On 13 December 2010, the Claimant was served with a signed deportation order dated 10 December 2010, and detained under section 36(2) of the 2007 Act and schedule 3 paragraph 2(3) of the 1971 Act, pending removal.[16]As it transpired, at that time the Secretary of State had in her possession details as to the Claimant's family members, their clan group, and place of residence and experiences of persecution in Somalia which had been accepted by the Secretary of State in recognising them as refugees. No steps were taken to obtain and review this material contrary to internal guidelines and it was consequently not referred to in the decision letter. Instead the Claimant's account including details relating to his clan, his residence and his family experience in the civil war was disputed and rejected as not being credible.

The asylum and human rights appeal to the First Tier Tribunal in May 2011

[17]The Claimant immediately lodged an appeal, which could not be heard until 12 May 2011 and was dismissed on 25 May 2011. At the FTT the Claimant called a number of witnesses in support of his appeal; and the case advanced on his behalf before me to the effect that the Secretary of State had breached her duty and acted unfairly in relation to information concerning the Claimant’s family has been put rather broadly. I find that the credibility of two particular witnesses, his mother, F A W, and his aunt, F W, was vigorously questioned by the Secretary of State's presenting officer: see paragraph 61 of the FTT in relation to F A W and paragraphs 67-70 in relation to F W- although the Secretary of State provided the FTT with a letter dated 21 March 2011 confirming that F A W had been granted asylum because she had been accepted as member of the minority Reer Hamar clan: see paragraph 22 Even so, the officer disputed the accounts given by these two witnesses which adversely affected the value of their evidence and the reliance the FTT might choose to place on their evidence, when assessing whether it supported the Claimant's asylum claim.[18]The FTT dismissed the appeal and found that, because of inconsistency in the Claimant's account and his overall lack of credibility, they could not determine where the Claimant was from and what clan he was: see paragraphs 100, 102 of the decision. The FTT considered the risk of violence to the public the Claimant presented, which included consideration of the psychological assessment of Ms Joanne Lackenby dated 7 March 2011, and expressed concern that the Claimant tended to blame everyone but himself for his serious criminal behaviour (paragraphs 92-94). The FTT found that the factors that increased the risk of violence presented by the Claimant, namely alcohol and cannabis use and peer pressure, were likely to be present on his release and that he had not rebutted the presumption that he was a continuing danger to the public (paragraph 96). The FTT decided that the Claimant’s family members were either in denial about his history or unengaged with his life, and that, in either case, this was not indicative of a supportive environment if the Claimant were to be released from detention (paragraph 94). His account of being a committed husband (in religious if not legal terms) and father was rejected (paragraphs 95-96 and 108-112).[19]On 28 June 2011 the ECtHR gave judgment in Sufi & Elmi v United Kingdom (2012) 54 EHRR 9, and decided that the objective information contained in the most recent reports by governmental bodies and UN agencies clearly indicated that the level of violence in Mogadishu was of sufficient intensity to pose a real risk of ill-treatment to anyone in the capital, in view of the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict. Although it was not possible to exclude this a priori, certain individuals who were exceptionally well-connected to powerful actors in Mogadishu might be able to live safely in the city, which would be a rare occurrence. Only connections at the highest level would be able to afford such protection. Individuals who had not been to Somalia for some time were unlikely to have the contacts necessary to afford them protection. As such, the violence in Mogadishu was of such a level of intensity that anyone in the city, with the possible exception of those who were exceptionally well-connected to powerful actors, were at real risk of treatment prohibited by Article 3 ECHR.

The Upper Tribunal

[20]On 25 August 2011 the Upper Tribunal (UT) granted permission to appeal the FTT’s determination solely in the light of the decision of the ECtHR in Sufi & Elmi. On 11 April 2012 the UT dismissed the appeal, having considered the decisions in Sufi & Elmi v UK and in the updated Somali country guidance case of AMM v Secretary of State for the Home Department[2011] UKUT 0445 (IAC). The UT rejected the Claimant’s asylum claim because of his lack of credibility and went further than the FTT, positively finding that the Claimant would be provided with protection on return by powerful agents: see paragraphs 26-27.[21](On 15 December 2011 the Claimant lodged proceedings for judicial review and the history of this litigation is summarised below.)[22]On 19 April 2012 a new expert report from a Forensic Psychologist, Ms Lackenby, was served on the Secretary of State. Ms Lackenby stated that the Claimant remained, in her view, low to medium risk and that there were now a number of protective factors that were not present at the time of the index offence and reduced the risk of re-offending. She set out her conclusions as to the relationship which had developed further in the last year - and post-dated the findings of the FTT - between the Claimant and his 4 year old son which was relevant both to the Article 8 issue concerning the Claimant and his son and to the continuing lawfulness and effect of the detention. Ms Lackenby concluded that there was a genuine and significant relationship between the Claimant and his son: see paragraph 2.8(i). However, the monthly progress reports and detention reviews prepared in relation to the Claimant did not refer to this report.[23]On 24 April 2012 the Claimant lodged with the UT an application for permission to appeal the UT’s decision to the Court of Appeal. On 23 May 2012 the Claimant sought permission to appeal to the Court of Appeal. On 23 July 2012 permission was refused by Stanley Burnton LJ, as being totally without merit.

The Secretary of State’s re-consideration following Sufi

[24]From January 2012 the Claimant’s claim for asylum was being internally re-considered in light of the judgment of the ECtHR in Sufi and Elmi v United Kingdom. It was accepted that the Claimant was from Mogadishu and further enquiries were required. On 15 March 2012 the Secretary of State’s internal records note that the “case owner should continue to establish which clan he is from to ascertain whether there is a realistic prospect of removal”. This was repeated on 8 June 2012 when it was stated that “the case owner needs to seek further advice on how to establish where he is from, his clan and how he can be safely returned.”[25]On 21 June 2012 an application for release on temporary admission was made in reliance, amongst other things, on Ms Lackenby’s report of 19 April 2012 and a disclosure under the Freedom of Information Act, indicating that no Somali nationals had been forcibly removed since May 2011 and a lack of evidence from the Secretary of State, despite requests from the Claimant of 21 May 2012, concerning current plans to re-start removals.[26]On 6 July 2012 the Secretary of State’s case worker reviewed the Claimant’s case. She identified the need for a thorough review of the Claimant’s asylum claim, identified the need to obtain “his mother /family files and see if there is any information that shows what clan the subject belongs to, what happened to his father, who is brothers and sisters are, who is aunts and uncles are, where he was born,..” and requested that the files be urgently obtained.[27]On 3 August 2012 the same officer confirmed that “it would be advisable to look at the files of the FNO’s wider family if this had not been done previously” and on the 6 August 2012 the officer carried out that task. The GCID note dated 6 August 2012 stated ‘we have now read all the family files to the subject relatives …. In the light of the subject’s application for permission to appeal to the Court of Appeal, Temporary Admission and a possible JR we need to be 100% aware of all the facts and to be able to confirm that both the decision to pursue detention continues to be the right course of action’. The notes provided detailed information from Home Office files in relation to the Claimant’s family, including (amongst others), his mother, F A W and his aunt, F A. However, when the Home Office originally disclosed these notes to the Claimant in response to a subject access request, there were redactions of these notes, and, in fact, a further 1½ pages were concealed.[28]On 29 August 2012 the Claimant’s request for temporary admission made in June 2012 was rejected. The decision maker continued to rely on the previous decisions that there was no family life between the Claimant and his son despite the views expressed in Ms Lackenby’s report and asserted that “All the points raised in the recent report were considered at the appeal hearing on 11 April 2012”.[29]On 9 November 2012 the Claimant applied to revoke the deportation order in force and made further representations, relying on a second report from Ms Lackenby and a further expert report from an Independent Social Work report of Christine Brown of 9 November 2012.[30]On 12 December 2012 a computerised entry in the Secretary of State’s case date base was made by Ms Andrea Wares (the ‘GCID’ note) as follows:
“I note from previous notes that we are required to make a decision by 14/12/12 as directed by the Immigration Judge at the subject's bail hearing on 30/11/12. The subject's representatives withdrew his bail application on that basis. We currently have outstanding a Judicial Review which is mainly about the subject's continued detention since June 2010 and I have been informed by the case owner that this will not be heard until April in the new year. We also have further representations in respect of the subject's child under Article 8. At the subject's dismissed appeal hearing on 11 April 2012 he was severely criticised for his lack of credibility regarding his connections to Somalia and his family in the UK. However, I note that we had HO records on his mother, brother, aunts, uncles and numerous cousins in the UK, most of them having been granted refugee status. I note that the subject's asylum application refused on 13 December 2010 was before AMM and others (conflict, humanitarian crisis; returnees; FGM) Somalia CG [2.011] UKUT 0045 (lAC) and OGN 15 December 2011 and whilst the Immigration Judge made his own assessment at the hearing on 11 April 2012 the subject did not have the benefit of the case owner considering his circumstances under our own written guidelines. Whilst the onus and the burden of proof is on the subject to prove his case, nevertheless, if UKBA has records that are relevant to the subject's case, it is our responsibility to present them in the decision made. I note the Presenting Officer called the mother's file but there were other family files that had information that explained some of the things said by the subject. Further to my notes of 6 August 2012 I considered raising the matter with the SEO Senior Caseworker but decided not to in view of the seriousness of the subject's criminal offence involving violence which resulted in a 5 year sentence and the weight of a dismissed appeal by an Immigration Judge. In addition permission to appeal to the Upper Tribunal was refused by a second Immigration Judge. However, we now have further representations involving the child who is now 5 years old and can speak and interact with the subject. Some of the representations are outstanding from when the subject attempted to appeal to the Upper Tribunal which was refused on 11 April 2012 and the Court of Appeal which was refused on 8 May 2012 but nevertheless they are representations that need to be considered. The subject also claims that he suffers from PTSD. We should refuse to revoke the DO and maintain our decision to deport however subject should be given an in country right of appeal for the following reasons: 1. Information regarding his family from Home Office records were not properly acknowledged and presented in the initial decision to deport and asylum refusal. 2. The further representations regarding the child is from the child's point of view and the effect it would have on the child therefore Section 55 of the Borders, Citizenship and Immigration Act 2009 applies. 3. PTSD can occur at any time long after the event so we cannot argue that it could have been raised earlier.”

The refusal to revoke the deportation order in December 2012

[31]On 13 December 2012 the Secretary of State refused to revoke the deportation order, but stated that the Claimant had a fresh right of appeal (including on asylum grounds) although this had not been raised by the Claimant (who was unaware of the internal review). The decision set out (from Home Office records) extensive details of the relationship between the Claimant and his family members including, in particular, information concerning the Claimant’s mother, F A W and his aunt, F W, both of whom gave evidence before the FTT in May 2011.[32]The decision recorded that “It is clear from Home Office records that your client’s mother, aunts, uncle, brother and all his cousins settled in the UK came from the same area in Mogadishu Hamerweyne District and belong to the Reer Hamer minority clan.” The Secretary of State referred to inconsistency in the Claimant’s accounts and relied on an adverse credibility finding about whether he had a relationship with his mother as claimed.[33]However, the Claimant makes the point the refusal letter did not refer to a number of statements made in the file note made the previous day. The decision did not state that “there were other family files that had information that explained some of the things said by the subject” nor elaborated upon what those things were relevant to the veracity of his account. Nor did it set out that “1. Information regarding his family from Home Office records were not properly acknowledged and presented in the initial decision to deport and asylum refusal.”.[34]Junior Counsel for the Claimant drafted a skeleton argument on 20 December 2012 which, amongst other things, maintained at paragraph 3 that, by reason of the passage of time, objective material and his personal circumstances (in particular, his length of absence from Somalia), the Claimant remained at risk on return and was entitled to asylum or to humanitarian protection, and that his removal to Somalia would be in breach of his Articles 3 and 8 rights.[35]On 14 February 2013 the FTT allowed the appeal, in part, and gave its reasons. The Secretary of State’s officer had relied before it upon the earlier FTT decision and its previous adverse findings, which the second FTT adopted in respect of the asylum claim. The FTT stated that they took into account the oral and documentary evidence, the grounds of appeal and an expert report from Mark Hohne. At paragraph 53 of the decision the FTT state that they have made their starting point the reported case of Devaseelan [2002] UKAIT 00702* where the Tribunal said at paragraph 37:
“The first Adjudicator’s determination stands (unchallenged or not successfully challenged) as an assessment of claim the Appellant was then making at the time of that determination. It is not binding on the second Adjudicator, but on the other hand the second Adjudicator is not hearing an appeal against it. An assessment of the matters which were before the first Adjudicator it should simply be regarded as unquestioned. It may be built upon and as a result the outcome of the hearing may be quite different from what might have been expected from a reading of the first determination only but it is not the second Adjudicator’s role to consider arguments intended to undermine the first Adjudicator’s determination.”
[36]The FTT made no reference to the material from the Home Office records which had been disclosed and set out the decision made on 13 December 2012. However the FTT upheld the appeal on Article 8 grounds in light of the new evidence about the relationship with his son and the reassessment of his risk of reoffending in light of the fresh evidence. The Secretary of State then appealed the decision.[37]On 26 February 2013 the FTT Tribunal granted the Claimant bail. On 7 March 2013 the Secretary of State was refused permission to appeal and the Claimant was granted discretionary leave to remain on the 15 October 2013.

The history of the proceedings

[38]On 15 December 2011 judicial review proceedings were lodged.[39]On 16 December 2011 Mr GMC Ockelton, sitting as a Deputy High Court Judge, refused the Claimant’s application for immediate release from custody. On 30 December 2011 a renewed application for immediate release from detention was refused by Robin Purchas QC, sitting as a Deputy High Court Judge.[40]On 23 January 2012 HHJ Sycamore, sitting as a Deputy High Court Judge, refused permission on the papers. By an order dated 20 June 2012 permission was refused following an oral hearing by HHJ Waksman QC, sitting as a Deputy High Court Judge. On 5 November 2012 permission was granted from the Court of Appeal by Longmore LJ and the case was remitted to the Administrative Court.

The hearing before David Elvin QC

[41]The case was listed for a full hearing on 8 April 2014 before David Elvin QC, sitting as a Deputy High Court Judge, but was vacated.[42]However, in the Claimant’s skeleton argument prepared for the hearing (dated 3 April 2014), the Claimant placed heavy reliance on the GCID note dated 12 December 2012 and recorded, amongst other things, that at the Claimant’s dismissed appeal hearing (before the UT) on 11 April 2012, he was severely criticised for his lack of credibility regarding his connections to Somalia and his family in the UK. The Claimant pointed out that the Defendant had Home Office records on his mother, brother, aunts, uncles and numerous cousins in the UK, most of whom had been granted refugee status; and contended that the Defendant had failed to bring this material to the attention of the UT or the Claimant’s advisers, that it was relevant material that supported the Claimant’s asylum claim, and that had it been brought to the Tribunal’s attention, the Claimant’s appeal would have been allowed. The Claimant also contended that the Defendant’s case record entries “reveal that the Defendant was aware of the likely absence of the Claimant’s family members in Somalia and deliberately withheld this information”.[43]In the Claimant’s supplementary skeleton argument dated 8 April 2014, it was stated that a GCID note for 6 August 2012 that had been previously disclosed was deliberately misleading in its previously disclosed form and that information had been redacted to withhold information going to the strength of the Claimant’s asylum appeal. The Claimant claimed that the note should have been disclosed to him and to the Tribunal and that it directly impacted on the merits of his asylum claim.[44]At the hearing before Mr Elvin, the Claimant submitted that if the information in the GCID entries for 6 August 2012 and 12 December 2012 had been in front of UT Judge Moulden, there was a good likelihood that he would have found that all the Claimant’s close family were in the UK and that a real risk on return would have been established. The Claimant claimed that the GCID notes went to the heart of the legality of detention because they showed that the Defendant was aware that there was information that supported the case that the Claimant was part of a minority clan in Somalia and came from an area in Mogadishu where he would be at risk on return.[45]Mr Elvin gave permission for the Claimant to amend his case to raise the issue about the information that the Claimant claimed should have been disclosed to the Tribunal. He made a number of orders: including orders that the Claimant have permission to amend and lodge his Statement of Facts and Grounds by 15 April 2014, that the Defendant serve no later than 13 May 2014 the Amended Grounds of Defence (together with the witness statement to address an number of specified disclosure issues). The hearing was adjourned to enable the Defendant to provide an explanation in response to the Claimant’s allegations.[46]On 29 July 2014 the Claimant applied for an ‘unless’ orders in relation to the Defendant’s failure to serve the Amended Detailed Grounds of Defence and any further evidence in support. On 1 August 2014 Geraldine Clarke sitting as a Deputy High Court Judge made orders including that, if he had not already done so, the Claimant shall as soon as practicable serve his application for an ‘unless order’ on the Defendant, that the Defendant do file and serve a written response and any evidence within 10 days of the service of the order and that the application be considered by a judge on paper no later than 18 August 2014. Timothy Straker QC sitting as a Deputy High Court Judge ordered that the order of Geraldine Clarke be discharged and the order of David Elvin be varied to permit the Defendant to file Amended Detailed Grounds by 22 August 2014, with the Claimant to file any reply by 2 September 2014.[47]As I understand it, the Claimant’s allegations of nondisclosure can be summarised as follows:(i) there was information in respect of the Claimant’s family members that was not put before the FTT in May 2011, the UT in April 2012 or the Claimant’s representatives,(ii) that this information was deliberately withheld by the Defendant, who acted in bad faith, abused her power and committed the tort of misfeasance in public office, and(iii) that, had this information been disclosed to the FTT or the UT, the Claimant’s appeal would have been allowed and he would have been released from detention.[48]The Defendant responded to these allegations, serving a witness statement from Ben Allen dated 16 July 2014. I have read his witness statement with very great care, but I am afraid I find various passages in it somewhat opaque. Mr Allen said that the information concerning to the Claimant’s family members (recited in the GCID notes of 6 August 2012 and 12 December 2012) was made available to the FTT and the UT, that the actual material was set out at length in the Defendant’s decision letter dated 13 December 2012 in which the Defendant gave reasons for deciding to refuse to revoke the deportation order in force against the Claimant and said, for example that: “It is clear from Home Office records that your client’s mother, aunts, uncle, brother and all his cousins settled in the UK came from the same area in Mogadishu Hamerweyne District and all belong to the Reer Hamer minority clan”.[49]In his witness statement Mr Allen states that, in response to a request from the Claimant’s solicitors made on 19 October 2012, certain documents were disclosed. However, the file note of 6 August 2012 containing the details from the Home Office records in relation to the Claimant’s family was not disclosed; Mr Allen says ‘The file suggests that the GCID notes were read by the case officer dealing with the matter at the time but there is no explanation of why they were not disclosed’. On 18 September 2012 a subject access request was made on behalf of the Claimant in accordance with the Data Protection Act. Mr Allen says that the reply was redacted because the Claimant was not entitled to the information under the Data Protection Act: the material was considered to be the personal data of third parties and exempt under s 7(4) of the Act. The page numbers were also redacted in relation to which Mr Allen accepted that this was an error of judgment on behalf of the member of staff at the Data Protection Unit for which the Defendant apologised. He also says that the substance of the GCID note of 6 August 2012 has already been disclosed to the Claimant, by which he means that the information was set out in the Home Office letter of 13 December 2012. Mr Allen also produces the index to the bundle used at the 2011 FTT hearing which included witness statements from the Claimant and his mother plus her asylum claim and the document which points to her interview on 11 December 2007. Mr Allen says that the substance of the file note of 6 August 2012 was available to the Presenting Officer in 2011 and had been available to him in the Claimant’s bundle.

THE LEGAL FRAMEWORK

[50]The basic legal principles were not disputed before me.

(a) of the UK Borders Act 2007 which states:

“(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.”
Section 32(5) of the 2007 Act states that the Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). (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.”[51]These powers were held to be compatible with Article 5(1) ECHR in R (Rashid Hussein) v Secretary of State for the Home Department [2009] EWHC 2492 (Admin) where Nicol J held at [41-44] that, in construing these provisions, it was necessary to ensure that:(i) the precise power utilised was identified, and(ii) that although a time frame akin to fast track determination could not be implied, lengthy delays in considering whether to deport could not be tolerated.[52]As indicated above, Ms Harrison QC on behalf of the Claimant alleged he had been unlawfully detained in breach of the well-known Hardial Singh 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 that 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.’[53]She further submitted that, the longer the period of detention, the greater the burden of justification on the Defendant. Whilst a finite time for removal did not necessarily have to be indicated by the Secretary of State, the extent of certainty or uncertainty as to the likely timeframe for removal impacts on the balancing exercise: R (on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, per Richards LJ at [65-66]. At [68] Richard LJ stated “As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention.” 68 (v)[54]She also submitted that there is no exhaustive list of the factors which may be relevant in determining what may be a "reasonable period" but 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: see e.g. Lumba at [104]-[105].[55]She further submitted that he burden of proof is always upon the Defendant to justify detention: Lumba, at [44]. In applying the Hardial Singh principles the Court makes its own judgment and is not reviewing the rationality of the Defendant’s decision that the detention and its duration is reasonable in all the circumstances. This is a precedent fact question for the Court: Tan Te Lam v the Superintendent of the Tai A Chau Detention Centre [1997] AC 97 per Lord Browne-Wilkinson at p111a-e, 112c-114e and A v Secretary of State for the Home Department [2007] EWCA Civ 804 at [62] and [71].[56]It is also common ground that, as the Supreme Court held in Lumba, when a claimant had proved that he had been directly and intentionally imprisoned by the defendant, the burden shifted to the defendant to show that there had been lawful justification for the imprisonment; that where the defendant was a public authority which had power to detain, that power had to be lawfully exercised and a breach of the principles of public law could found an action at common law for damages for false imprisonment, and the breach had to bear on and be relevant to the decision to detain; and that it had to be shown by the Home Secretary that the Claimant’s detention was justified in law. THE ISSUES Issue 1: whether the Secretary of State breached the duty of candour and/or acted with conspicuous unfairness

THE ISSUES

[57]I have had the benefit of very extensive submissions both orally and in writing which I would summarise as follows. The claimant’s submissions[58]Ms Harrison QC submitted that the continued and/or prolonged detention of the Claimant was due to the Defendant’s unlawful failure to ensure that all relevant material within the possession of the Defendant was taken into account when the Claimant’s case for asylum was considered and determined in December 2010. She argued that the relevant material comprised details of asylum claims by the Claimant’s mother and numerous other close relatives- whose accounts, in particular, of their clan group, their place of residence in Mogadishu and experience of past trauma and abuse had all been accepted by the Defendant when they had been recognised by refugees. The material is said to provide a consistent account of key matters and gave detail of the Claimant’s own history, which would have assisted in assessing to the requite low standard his clan and place of origin in Mogadishu, notwithstanding the discrepancies within his own account- and would have required consideration to be made against the background that he was a minor, having arrived unaccompanied, when interviewed.[59]Ms Harrison QC submitted that the Defendant was under a legal duty to disclose this to the Claimant, based upon the Defendant’s positive obligations and by virtue of the high standards of fairness required in the determination of a claim for asylum and human rights protection. An applicant for asylum is entitled to a fair initial decision by the Defendant and appeals are not a sufficient remedy if unfairness at the outset has or may risk irremediable damage to the claim: see R (RLC) v Secretary of State for the Home Department [2004] at [7, 8 and 15]; Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin) and Thirukumar v Secretary of State for the Home Department [1989] COD 384.[60]Ms Harrison QC contended that, there is a shared burden on the applicant and the public authority so as to ensure that as far as possible applicants are not exposed to human rights violations: see Rahman v Secretary of State for the Home Department [2005] EWCA Civ 1826, Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045; Kandsamay Uruthiran v Secretary of State for the Home Department (2013) and UNHCR Handbook paragraph 196; and that the Defendant would be acting in breach of this duty if she does not disclose relevant material within her own possession that bears upon the issues in a protection or human rights claim. She contended that the Defendant would be acting with conspicuous unfairness and abuse of power, if she refused an asylum claim and maintained and defended that refusal before the tribunal, if that refusal is contrary to internal guidelines and policy recognises individuals to be in a category of those at risk of persecution and entitled to asylum: see R(Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 as further considered in, amongst other cases, R(S) v Secretary of State for the Home Department [2007] EWCA Civ 546.[61]She submitted that the Defendant’s own officer identified the breach of these legal duties at some point in 2012 and, at least, by June 2012. In December 2012 she submitted that the Secretary of State accepted that it was necessary for the asylum claim to be reconsidered, which it was, and to afford the Claimant a fresh right of appeal because of these failures.[62]She therefore submitted that, had the Defendant complied with her duty at the outset, the Claimant would and/or should have been recognised as a refugee as were his mother, sibling, aunts and uncles as a member of a minority clan returning to Mogadishu with no prospect of any protection form powerful groupings within Mogadishu and the Claimant’s detention should have concluded with the determination of his claim for asylum in December 2010 when, as she contended, his claim would have been upheld.[63]In other words, Ms Harrison QC’s primary submission was that, had the proper enquires been made at the outset into the evidence and accepted claims of the Claimant’s family members, then it would have been concluded that the exceptions in s 33 to the 2007 Act applied in his case and he would have been released from detention in December 2010.[64]Alternatively, Ms Harrison QC submitted the detention should have ended when the claim was reconsidered in June or August or December 2012, and that the Defendant further acted unlawfully and unfairly in reliance upon the previous decisions of the FTT and the UT which had come to an adverse conclusion. She submitted that it was unfair for the FTT and UT decisions to take place without the Defendant conceding to the Tribunal that the family members had all given consistent accounts of their clan and place or residence in Mogadishu and that their persecution and abuse of them had been accepted when they were granted asylum. Moreover, that their accounts explained some of the matters in the Claimant’s own account: see RLC case (supra) and Mibanga vSecretary of State for the Home Department [2005] EWCA Civ 367 at [24].[65]In any event, Ms Harrison QC submitted that the Defendant acted unlawfully in deliberately deciding not to bring this to the attention of the UT or the Court of Appeal and conceding at that point that reconsideration was required. The failure to raise this matter for at least a further 4 months (possibly longer given that this had been identified at least as long ago as March 2012) prolonged the Claimant’s detention and delayed pursuit of the fresh right of appeal which was ultimately successful.[66]It was asserted that it is plain beyond argument that the Defendant’s officers deliberately sought to conceal the officer’s consideration of the significance of the evidence of the family members and did so without any sustainable good reason. Reliance on the fact that it contains reference to third parties, it was said, cannot be accepted as the reason for redaction, because the explanation for redacting the page numbers is contrary to that being the real reason. It was rhetorically asked- if the 1 ½ pages were withheld for wholly legitimate reasons, why was it necessary to redact the page numbers and hide the existence of these documents? It was also contended that it is no answer that the detail of the family’s claims was set out in the refusal letter of December 2012- because that was disclosed without the context of the internal records (including as to the consistency in this evidence) and also because ‘there were other family files that had information that explained some of the things said by the subject.” Instead, Ms Harrison QC observed, the refusal letter relied upon adverse findings previously made without the benefit of the information, the Defendant’s view of it and that it should have been addressed during the first consideration of the Claimant’s claim.

The submissions made on behalf of the Secretary of State

[67]Mr Singh, on behalf of the Secretary of State, argued that the Defendant has complied with her duty of candour and submitted that the Claimant has consistently conflated documents provided under the Data Protection Act in response to a subject access request with documents disclosed in litigation by, for example, stating that ‘no explanation’ has been given for the redaction of information concerning the Claimant’s relatives in response to a subject access request. He pointed out that information requested under the Data Protection Act must be redacted in response to a subject access request, as ‘personal data’ of third parties. The Secretary of State therefore submitted that data redacted in accordance with the Data Protection Act does not mean that the Defendant has not complied with her duty of disclosure in the conduct of the litigation.[68]However, the Secretary of State acknowledged that her officials were in error in redacting certain page numbers and Mr Allen accepted this was an error of judgment on behalf of the member of staff of the Data Protection Unit and one for which the Defendant has apologised. But, Mr Singh said, this was a faulty response to a subject access request under the Data Protection Act and has no bearing on the duty of candour in relation to the judicial review case.[69]As part of his claim that the Defendant has not complied with the duty of candour, the Claimant criticised the Defendant for not serving witness evidence defending the legality of his detention. However, he submitted that the manner in which the Defendant chooses to defend this claim for unlawful detention is a matter for her and she is not required to serve witness evidence if she regards the documents before the court as self-explanatory.[70]Mr Singh submitted that the Claimant’s allegations collapse in their entirety: that the information was, in fact, placed before the FTT and the UT and yet those tribunals nevertheless dismissed the Claimant’s asylum appeal. He submitted that the fact the Claimant’s mother came from a minority clan does not necessarily mean that he did because clan affiliation comes from the father. He drew attention to the fact that at the Claimant’s appeal hearing in May 2011, the FTT recorded that there were “numerous inexplicable discrepancies” in the clan membership claimed by the Claimant and that his evidence as to the place he came from in Somalia was vague and inconsistent. She said that the FTT properly rejected his credibility, having the full benefit of the relevant factual evidence pertaining to the Claimant’s family members (and did not go behind the basis of the Claimant’s mother’s asylum claim). It is also submitted that at the 2013 hearing before the FTT, the FTT had all the relevant factual evidence contained in the GCID notes as it was set out in the Defendant’s letter dated 13th December 2012, and that the FTT refused to depart from the previous rejection of the Claimant’s asylum claim on credibility grounds.[71]Mr Singh further submitted that there is no general requirement for disclosure of all relevant data held by Secretary of State for the Home Department in asylum appeals: see CM Zimbabwe CG [2013] UKUT 00059 (IAC) at para 36. Mr Singh said that the duty on the Defendant in the Tribunal is not to knowingly mislead in the material she places before the Tribunal and ‘knowingly’ embraces that which he ought to have known: see CM[38]. He contended that the duty cannot be put any higher than a duty not to mislead by omission of material that was known or ought to have been known to the Secretary of State for the Home Department: see CM [41].[72]Mr Singh also submitted that there was a question which arose concerning whether she breached duty of disclosure in the claimant’s appeals before the FTT and the UT; and suggested that it may not be appropriate for the Administrative Court to determine this matter in these judicial review proceedings. He said that an analogy can be drawn with the case of AO (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1637 where the Secretary of State for the Home Department had a policy not to deport nationals who originated from countries which were active war zones. The Secretary of State failed to draw the policy to Tribunal’s attention in an asylum appeal involving a litigant in person [32], the appeal was dismissed and the Appellant was detained throughout the course of the appeal process. He then commenced judicial review proceedings to challenge the legality of his detention on grounds that detention was based on flawed asylum process, in that existence of the policy had not been disclosed. The Court of Appeal found that had the policy been referred to, it would not have been decisive of appeal- but would have required further findings of fact to have been made [32]. Elias LJ noted that judicial review was an inappropriate process for making factual findings [33] and that it was not open to the appellant to raise the matter in judicial review proceedings; he, should, instead, have applied to the Court of Appeal [34-35]. He submitted that, that if the Claimant wished to challenge and/or claimed unfairness in the statutory Tribunal proceedings in 2011 and 2012, he should have made an application to reopen the Tribunal appeal under CPR r 52.17.[73]Furthermore, Mr Singh submitted that the Secretary of State’s acceptance of the basis of asylum claims of the claimant’s relatives was information that the Claimant’s own legal representatives knew or ought to have known in the 2011 appeal (as almost all of those relatives attended the appeal to give oral evidence).[74]He next said that in case of Kerrouche (referred to in CM at [38], Lord Woolf indicated that ‘mislead’ meant to not disclose information that “materially detracts from that on which” reliance is placed; and submitted that there was nothing in any of accepted information about Claimant’s maternal relatives that detracted from all the inconsistencies and discrepancies in his own account that the Secretary of State relied upon. Indeed, Mr Singh contended that, if this information had been as significant as the Claimant now claims, it would have led to appeals in 2011 and 2012 being allowed. He submitted that the FTT in 2013 would have been obliged to take it into account as ‘compelling new evidence’ and revisit credibility findings about Claimant, as fundamental rights at stake in asylum cases.[75]Mr Singh rejected the Claimant’s criticism that the Defendant did not state in the letter dated 13 December 2012 that accounts of family members had been accepted on the ground that those family members had been granted asylum so that their accounts were accepted. He pointed out that the Secretary of State expressly stated in letter that:
“It is clear from Home Office records that your client’s mother, aunts, uncle, brother and all his cousins settled in the UK came from the same area in Mogadishu Hamerweyne District and all belong to the Reer Hamer minority clan”
. Therefore, he said, the Defendant had acknowledged that there was consistency in the accounts given, was before FTT in 2013 and made no difference.[76]Mr Singh submitted that the Claimant’s disclosure complaints came down to nothing more than claiming that the ‘view’ expressed by the caseworker on 12 December 2012 (as recorded in GCID note) should have been disclosed in the Tribunal appeals. He submitted that that this argument has no merit, and that the Tribunal in 2011 and 2012 was not misled in making credibility findings about the Claimant because it did not know what the caseworker thought. He also submitted that, in any event, the caseworker’s view on 12 December 2012 (and, indeed, any view she may have held when making the GCID note dated 6 August 2012) post-dated the 2011 and 2012 appeal procedure as that came to an end on 2 August 2012. Furthermore, he said, any ‘view’ could not, in any event, have been disclosed in 2011 and 2012 appeals.[77]Mr Singh argued that any analogy the Claimant seeks to draw on ‘fairness’ grounds with cases such as Refugee Legal Council, Rahman and Rashid is simply not made out, that there was no breach of duty of disclosure so there was no extreme unfairness in the sense considered in those cases or, indeed, any unfairness in the Claimant’s case.[78]Alternatively if, contrary to these submissions, the Court decided that the duty of disclosure in the Tribunal was breached, Mr Singh then contended that it is necessary to consider whether the breach bore upon the decision to detain Claimant, as detention notionally unlawful if it did: see (Lumba and R(Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299. Mr Singh submitted that that no alleged breach of disclosure in Tribunal proceedings bore upon the decision to detain; and that the present case was not like Kambadzi-where there was a breach of the detention policy(by a failure to carry out detention reviews), which could be linked to decision to detain, regardless of whether the policy was material to the decision to detain. He argued on that the link was present in that case because the detention policy regulated exercise of the Secretary of State’s discretion to detain under Hardial Singh principles: see Lord Hope comments regulating exercise of this discretion at [17]. Mr Singh drew attention to the submission of the claimant in Kambadzi, that only public law errors or policy defaults were “sufficiently linked” to the decision to detain or to continue the detention to render the detention unlawful: see [30]. He relied on the view expressed by Lord Hope, that a breach of public law which bore “directly” on the discretionary power to detain would render detention unlawful [41], and that, if detention reviews were not carried out, continued detention was not authorised [54].[79]Mr Singh contended that the alleged breach of her duty of disclosure in the Tribunal appeal did not bear directly on her decision to detain, and was not sufficiently linked to the decision to detain; and, that in the present case, it was impossible to see how the breach of the duty of disclosure in the Tribunal bore upon decision to detain- without also considering what material impact, if any, the breach had on the detainee’s continued detention. In other words, said Mr Singh, the question of whether the breach bore upon the decision to detain was inseparable from the question of whether the absence of the breach would have led to the detainee being released- which was the question that is ordinarily asked when detention has been established to be unlawful and the question is whether the detainee should recover nominal or substantial damages. He submitted that any alleged breach of the duty of disclosure did not lead to the appeal being dismissed, when it would otherwise have been allowed and, therefore did not, as a result lead, to the Claimant being detained when he would otherwise have been released. He further submitted that, as the information allegedly not disclosed plainly was disclosed in 2013 FTT appeal and made no difference to the outcome of the Claimant’s asylum appeal which was, again, dismissed. He, therefore, submitted that, had alleged non-disclosure not occurred in 2011 and 2012, the Claimant’s asylum appeal would still have been dismissed and he would have remained in detention.[80]Mr Singh further submitted that the Claimant is entitled to no damages at all. If, for some reason, the breach did bear directly on the decision to detain, then he submitted, in the alternative, that the Claimant would have been detained in any event but for breach (as the appeal would still have been dismissed) and so was entitled to nominal damages of £1 only for any notionally unlawful detention. The Claimant’s submissions in reply[81]Ms Harrison QC replied at length and I have not sought to record all the submissions that she advanced.[82]She submitted that it was common ground that a public law error that is material to the decision to detain and/or continue to detain will render the detention unlawful and submits that Lumba Lord Dyson at [68] described the threshold as follows that ‘the breach of public law must bear on and be relevant to the decision to detain’. She submitted that this approach was adopted by the majority in Kambadzi. Lord Hope at [51] described the general test as being fact sensitive and required that in a policy case it ‘is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he had under the statute’. In this way the error must directly bear on the decision to detain.” [41][83]She further submitted that this test is met in the present case, and that a legal error in the underlying immigration decision- for example, in the decision to deport- could directly bear on the lawfulness of the authorisation for detention. She submitted that the exercise of the power to detain was inextricably linked to the underlying immigration decision. Thus, as in Khawaja, an erroneous decision that a person was an illegal entrant would render the detention unlawful; and that it was the underlying premises of the case relied upon by the Defendant of AO (Iraq) v Secretary of State for the Home Department [2010] EWCA 1657 (see below).[84]She drew attention to HXA v the Home Office [2010] EWHC 1177(QB) [pp 88-89 and 196-205] where it was held that the failure to determine whether deportation was compatible with Article 3 ECHR rendered the consequent detention pending the making of a deportation order unlawful from the outset. Similarly, Beatson J held that the continued detention of a Claimant was unlawful where there was a legal error in respect of the deportation decision relating to the correct approach to the best interests of the child. The error meant that the Defendant had not properly assessed the legality of the deportation order and the merits of the Claimant’s case: see SM v Secretary of State for the Home Department [2011] EWHC 338 (Admin) [pp101-102].[85]She submitted that in this case the first period of detention (June to December 2010) was under section 36(1)(a) of the 2007 Act and was for the purpose of considering whether section 32(5) of the 2007 applied. If no consideration was in fact taking place (as she contended, as here) and/or was so flawed (as here, in relation to the alleged breach of duty of candour and/or fairness submission) such that the Defendant, herself, accepted that the decision had to be taken again and attracted a fresh right of appeal, then, as she submitted, that flawed initial consideration clearly directly bore upon the lawfulness of the decision to detain and the duration of the detention in the same way as it was held to do so in HXA.[86]The legality of the underlying decision and the detention were, thus, inextricably linked in the statutory framework. If decisions upon which the detention power rested were not taken or were fundamentally flawed, then this must directly bear on the legality of the consequent detention.[87]As to the Defendant’s reliance upon the decision of the Court of Appeal in AO (Iraq) v Secretary of State for the Home Department [2010] EWCA 1657, Ms Harrison QC submitted that this case was an appeal against the refusal of permission where the Appellant argued that a failure to apply a policy of not returning applicants for asylum to parts of Iraq that were a war zone rendered the detention unlawful. She submitted that the Court of Appeal did not dispute that a failure to apply a substantive policy relevant to the immigration status of the individual did not have a bearing on the decision to detain. On the facts, however, the Court concluded that they had insufficient evidence about what the policy was including because an argument was advanced late, on the facts it was not clear that the policy applied to the Appellant and further factual findings had to be made. On that basis the Court declined to rule on the matter, concluding that the better course and an alternative remedy was an appeal to the Immigration Tribunal, when the point was identified by lawyers, the Appellant had appeared in person before the Tribunal and the policy had been made publically available.[88]Ms Harrison submitted that the principle on which Mr Singh relied was, strictly speaking, obiter, given that there was no finding that the policy applied. It was also given without the benefit of the fuller argument before King J in HXA (which was not cited by either party). However, she submitted that,in any event, AO was distinguishable for the following reasons: i) in this case it was the Defendant’s own officers who had identified the failure to have taken into account accepted evidence available to the Home Office from a number of close relatives of the Claimant and, thereby, denied the Claimant ‘the benefit of the case owner considering his circumstances under our own written guidelines…’ in the initial consideration of the decision to deport under s 32(5) of the 2007 Act. Furthermore, the Defendant’s officers accepted that ‘if UKBA has records that are relevant to the subject’s case, it is our responsibility to present them in the decision made’. She submitted that that this failure caused prejudice to the Claimant because there were other family files that had ‘information that explained some of the things said by the subject’ in the GCID case record sheet dated 5 December 20112 ii) The Defendant had, herself, acted upon this failure by reconsidering the decision to deport and by conferring a fresh right of appeal at that time. iii) The Defendant therefore, Ms Harrison QC contended, accepted on 5 December 2012 that the initial decision to deport was legally flawed because information regarding his family from the Home office records ‘were not properly acknowledged and presented in the initial decision to deport and asylum refusal’. iv) The Claimant was plainly unaware of the Defendant’s position until disclosure of these documents in February and April 2014 in these proceedings. No admission was made in the second refusal that the previous decision was flawed and the Claimant had been denied proper consideration of his case. The Defendant continued to rely on the adverse credibility findings of the first FTT. v) There is no dispute as to the materiality of the legal error - a fresh decision was required. vi) In any event the Claimant could not reopen his appeal because he has succeeded on his appeal on Article 8 grounds. vii) In this case there would be no need for any findings to be made by the FTT the evidence within the family files which was accepted made it clear beyond argument that the Claimant was at risk of harm in Mogadishu with no powerful protectors given that all of his close family where minority clan members who had been subject to severe human rights violations both before and after his flight from Somalia see note on asylum claim: see note served on asylum claim. viii) Reliance on adverse credibility findings by the FTT was not to the point and therefore repeated and compounded the unfairness at the heart of this case: see AM [36][89]Ms Harrison QC therefore submitted that the Defendant was in error in asserting that the Claimant must establish that he would have succeeded in his asylum claim if the Defendant had properly considered his claim at the outset in order to establish a material public law error since that approach is contrary to Lumba [65-66], since such an approach, in effect, imposes a causation test.[90]She submitted that it was for the Defendant to demonstrate that the Claimant would nevertheless have been detained and for the same duration: see R(E and O) v Secretary of State for the Home Department [2013] EWCA Civ 1236 [70-74]; and argued that the Defendant could not do this by reference to the flawed decisions to refuse asylum by the Defendant and the Tribunal- which were all based on adverse credibility findings made on the basis of the flawed decision making identified by the Defendant’s officer in December 2011 set out above: see R(RLC) v Secretary of State for the Home Department [2004] EWCA Civ 1491. She submitted that, on any view, this had a direct bearing because this failure plainly prolonged the detention - a new decision had to be taken. The Defendant’s officers identified the need to take into account this information from at least 12 July 2012. It was accepted by 6 August 2012 that it required fresh consideration and a new decision, although for wholly irrelevant and flawed reasons (the criminal conviction) this was not acted upon until December 2012.[91]Ms Harrison QC went on to point out that CM (Zimbabwe) went to the Court of Appeal: see [2013] EWCA Civ 1303. She said that, although the Court of Appeal endorsed the general reasoning of the UT [at 26] it went further and did conclude [at 27] that the Secretary of State for the Home Department ‘was under a duty [to] take reasonable steps to ensure that material relevant to a country guidance case is placed before the tribunal, and she must be candid in relation to documents of which she is aware whether or not they assist her. She may have to enquire of person or bodies such as government departments … but she is not required to undertake unprompted or undirected searches’. At [28] the Court described the duty as requiring the Secretary of State for the Home Department ‘to make specific enquiry inside and outside her own department where the need for that is prompted by material in her hands’.[92]Ms Harrison QC contended that, in any event the duty identified in CM (in respect of general country material) was amply coved by the facts of this case. She argued that the files and findings in respect of close relatives is, plainly, relevant material which was known and/ought to have been known by the Defendant. This was the Defendant’s officers own view, which properly reflected the law. Furthermore, the duty in the first place was not to the Court, but upon the Defendant to take these matters into account in light of the shared burden in asylum claims (Rahman v Secretary of State for the Home Department [2005 EWCA Civ 1826) and the obligation to ensure a fair first decision: see RLC [1/11/[15][93]Even if the test were simply not knowingly to mislead the FTT, the Defendant did so in this case for the following reasons: i) the Defendant had roundly rejected the credibility of the Claimant, even though it had evidence that it knew or ought to have known explained some of the things he had said and; ii) even if the Claimant’s account could not be relied upon, there was a body of consistent evidence accepted by the Home Office that established his close family were minority clan members whose last place of residence was Mogadishu and that they had all been subject to serious human rights violations and had no protection from the warring clans; iii) the Defendant did not even accept that the Claimant’s relatives had been granted asylum but required the Claimant’s representatives to establish that they had; iv) the FFT was not informed that the relatives had given consistent evidence and corroborated each other’s account of past events; v) the FTT was not informed that their accounts of past serious abuse had been accepted when granting them asylum; and vi) to the contrary, the Defendant disputed their evidence; vii) the Defendant’s officer did not inform the FTT that the Claimant had not had the benefit of this evidence being considered by the Secretary of State for the Home Department before the decision to refuse was made and that this should have been taken into account alongside the Secretary of State for the Home Department’s “written guidelines”.[94]Ms Harrison QC addressed the Defendant’s alternative submission that all the relevant material was, in fact, before the FTT by making the following submissions: i) fairness required the material had to be first considered by the Defendant herself and a failure to do so cannot be cured by a later appeal; see the RLC case ; ii) the material from the Home Office files had never been disclosed and the summary from the August 2012 note was clearly not disclosed in the first appeal; iii) Nor, critically, were any of the Defendant’s findings (as set out above) about that evidence were disclosed to the FTT in May 2012 nor contained in the December 2012 refusal and provided to the FTT in the second appeal in February 2013; iv) In oral submissions and the note the Defendant relied upon the information contained in the second refusal letter in December 2012, but that could not answer the initial unfairness in the first decision and the first FTT appeal; v) even in December 2012 the Defendant did not inform the FTT of the findings about this evidence, the acceptance that it should and was not taken into account and its relevance to the Claimant’s case, but, instead, continued to dispute their accounts and to rely upon the adverse credibility finding made by the FTT in the first appeal.[95]The Defendant further relied on the Claimant’s suggested failure to have raised the matter following the refusal letter of 13 December 2012. However, Ms Harrison QC submitted that the Defendant’s case must be rejected. According to her, it is difficult to see how the burden could be upon the Claimant to act upon an unknown unfairness but no duty was upon the Defendant who knew that a flawed and unfair decision had been made- but, instead, chose not to disclose it to the Claimant or the FTT and, instead, made: a) No concession in the December refusal that the previous decision was flawed. b) There was, therefore, no known basis for asserting that the FTT’s findings were thereby flawed. c) The previous adverse findings were positively endorsed and relied upon by the Defendant applying the Devaseelan guidance; d) Ms Wares in her entry of 12 December 2012 herself explained the conscious decision not to raise her concern in light of the weight of a dismissed appeal by an Immigration Judge. In addition permission to appeal to the Upper Tribunal was refused by a second Immigration Judge.[96]She further responded to Mr Singh’s submission to the effect that the alleged breach of the duty of candour and/or unfairness made no difference by arguing that his submission was contrary to and inconsistent with the evidence. The Court must act upon the evidence of the Defendant’s own officers in the documents concluding that the consideration of the asylum claim was flawed and unfair, and required further reconsideration of the decision to deport and moreover a fresh right of appeal.[97]Against this factual background and in the absence of any other evidence, she contended that it is simply not open to the Defendant through Counsel to make submissions that i) there was no flaw in the initial decision making ; ii) that any such failure was irrelevant and immaterial. Discussion[98]I should first consider the Claimant’s allegation that it is plain beyond argument that the Defendant’s officers deliberately sought to conceal the officer’s consideration of the significance of the evidence of the family members and did so without any sustainable good reason. The allegation is an extremely serious one and I therefore must examine the cogency of the evidence in support of it.[99]The Claimant has not adduced any direct evidence that the officers deliberately sought to conceal evidence and appears to rely on inference. I accept that the Claimant appears to have conflated obligations under the Data Protection Act with the duty of candour. It is of course regrettable (to say the least) that officials redacted certain page numbers without any legal basis but, it is accepted by the Secretary of State that officials made an error of judgment for which the Defendant has apologised. I reject the allegation of deliberate concealment of evidence.[100]I next turn to the question of whether those acting on behalf of the Secretary of State breached the duty of candour. I accept the Court of Appeal’s approach in CM (Zimbabwe) went further than the UT reasoning in the same case and that the duty of candour will require the Secretary of State to make specific enquiry inside or outside her own department where the need for that is prompted by material in her hands. The question that arises is whether the Defendant was obliged to disclose the fact that they had records in relation to the Claimant’s aunt, F W as part of her duty of candour. Whilst this information emerged as a review of the files in July 2012, I have received no evidence to explain why this occurred or what procedures it may reflect; and it would appear that no specific information was known at that time. I therefore find that there was no breach of a duty of candour in July 2012.[101]However, in December 2012 the file note records that ‘Whilst the onus and the burden of proof is on the subject to prove his case, nevertheless, if UKBA has records that are relevant to the subject's case, it is our responsibility to present them in the decision made. I note the Presenting Officer called the mother's file but there were other family files that had information that explained some of the things said by the subject’. The file note records that on 6 August 2012 the official considered raising the matter with the SEO Senior Caseworker but decided against doing so for several reasons: the seriousness of the Claimant's criminal offence involving violence which resulted in a 5 year sentence, the weight of a dismissed appeal by an Immigration Judge and the fact that permission to appeal to the Upper Tribunal was refused by a second Immigration Judge. The particular factors which are said to weigh against disclosure have no obvious relevance to any duty to disclose and are difficult to understand. The duty of candour requires the Secretary of State to make specific enquiry inside or outside her own department where the need for that is prompted by material in her hand and I find that she was required to do so from 6 August 2012 onwards.[102]Furthermore, I reject Mr Singh’s submission that it may not be appropriate for the Administrative Court to determine this matter in these judicial review proceedings, by analogy with AO (Iraq) v Secretary of State for the Home Department[2011] EWCA Civ 1637. The Secretary of State has failed to show that there is a need to make further findings of fact and that the Claimant should, instead, have applied to the Court of Appeal, rather than to pursue these proceedings by way of judicial review.[103]However, it seems to me that the complaint the Claimant makes is principally directed less at a failure to be candid and more about acts and omissions which resulted in conspicuous unfairness. I entirely accept Mr Singh’s submissions to the effect that the Secretary of State volunteered the disclosure of the material in December 2012 and that the subsequent FTT and UT hearings had the opportunity to consider the information that the Home Office had then provided.[104]However, in my judgment, the critical factor is the effect of the Devaseelan principle, which applied at the second FTT hearing in 2013. That principle requires that the first adjudication is to be regarded by the second FTT as unquestioned and that it is not the second FTT’s role to consider arguments intended to undermine the first FTT’s determination. The effect of the Devaseelan principle is, therefore, that the Claimant would always remain disadvantaged as a result of non- disclosure, since he would always suffer the significant disadvantage that his first claim had been rejected and that his evidence and case had been rejected as not being credible. Disclosure of this information at the second FTT hearing could, therefore, never have the same impact it would have done had the Secretary of State first made the disclosure so it could be deployed at the first FTT hearing. The reality is that the Secretary of State regarded F A W, and F W as witnesses that were worthy of belief whose asylum claims had succeeded, yet the presenting officers cross examined their account at the first FTT on the basis that they were not credible witnesses. In my judgment that resulted in conspicuous unfairness in her treatment of the Claimant’s asylum claim.[105]Furthermore, I reject Mr Singh’s submission that the alleged breach of the Defendant’s duty of disclosure in the Tribunal appeal did not bear directly on the decision to detain and is not sufficiently linked to the decision to detain.[106]I accept the submissions made by Ms Harrison and find on the facts of this case that the breach of public law (the breach of the duty of candour and/or the conspicuous unfairness) does bear upon and was relevant to the decision to detain the Claimant. In the circumstances of this case I find that the breach of the Secretary of State’s duty of candour and/or the conspicuous unfairness which I have identified above were public law errors, which caused the Claimant to remain in detention longer than he otherwise should have done. Issue 2: whether the Secretary of State intended to deport the Claimant and only used the power to detain for that purpose

The claimant’s submissions

[107]Ms Harrison submitted that the Defendant detained the Claimant on 8 July 2010 under s 36(1)(a) of the 2007 Act for the purpose of considering whether he could be deported in accordance with s 32(5) of the 2007 Act. However she contended that it appears that a deliberate decision was taken not to begin consideration or to delay consideration of the asylum claim because “there is no chance of removing him to Somalia” between 8 July and 1 November 2010: see GCID record dated 1 November 2010. She submitted that this note is inconsistent with and contrary to the limited statutory purpose in s 36(1)(a) 2007 Act which must be strictly and narrowly construed: Tan te Lam (supra); and that the Claimant’s detention was consequently unlawful during this period and/or was unreasonably prolonged by at least 3 and a half months as a result of the failure of the Defendant to consider the outstanding claim for asylum and the issues under s 33 of the 2007 Act; and that it is clear that the Defendant could have made the decision within 5 weeks.[108]Further and in any event Ms Harrison QC submitted the Defendant cannot demonstrate a real prospect of removal of this Claimant, after the judgment of the ECtHR in Sufi and Elmi v United Kingdom. The judgment was given on the 28 June 2011, and although it was followed by a domestic decision of the UT in AMM v Secretary of State for the Home Department which addressed developments on the ground in Mogadishu, the ECtHR judgment became final on the 28 November 2011. It was consequently recognised by the Defendant that all Somali cases had to be reviewed in light of these developments. The Claimant’s case was subject to ongoing review and it was identified that further enquiries where necessary to ascertain where he was from and his clan group. This was despite the fact that the FTT had dismissed his appeal on credibility grounds and without being able to make any findings on these issues.[109]Ms Harrison submitted that it appears that in similar cases the Defendant’s officers did recognise that these developments meant that there was no real prospect ofremoval to Mogadishu: see R (Abdi) Somalia) [2014] EWHC 2641 [29], and that this is entirely borne out by the practical reality of the numbers of individuals who had been forcibly removed to Somalia in 2010-2013. In each year, despite there being many hundreds of Somali nationals (in excess of 884 on the figures available in the evidence) who are appeal rights exhausted, based on the Defendant’s evidence only 2 individuals were the subject of an enforced removal in 2010 and 2011 and only 1 in 2012. Ms Harrison QC noted, with concern, that this differs from evidence given to the Court in R (Abdi) supra at [57] where higher figures were relied upon as a factor in concluding that there remained a real prospect of removal to Somalia; and refers to Daniel Furner’s statement as to the unreliability of the statistics.[110]In light of this witness evidence about this tiny fraction of those who could legally be removed who are in fact being removed, it is submitted that the Defendant has a very high burden in establishing why this individual would be one of those tiny numbers actually removed. She submits that there is no contemporaneous evidence that addresses this matter and the Defendant has, singularly, failed to address it in any evidence in these proceedings. Mr Dellaloglu in his witness statement simply says removals were not suspended and removals to Somalia have occurred without any attempt to engage with the fact that it is 5 in three years out of 100’s of cases and 1 only in 2012 and none at all in 2013.[111]Whilst there have been removals in the last three years, Ms Harrison submitted they are clearly de minimus in terms of the overall numbers. Even if one cannot say there is no prospect at all of removal, it is not a realprospect and is only theoretical for any given individual unless the Defendant can identify some specific real basis for establishing that the individual will in fact be one of the tiny number actually removed. The Defendant’s submissions[112]Mr Singh submitted the Claimant’s submission that the GCID note dated 1 November 2010 amounted to a deliberate decision was taken not to begin consideration or to delay consideration of his asylum claim was unsustainable. He submitted that the note records the comment of a member of the asylum team that because the Claimant “is from Somalia and there is no chance of removing him to Somalia”, his case is not considered a priority (the suggestion that there was “no chance” of removing the Claimant to Somalia is not one that should be adopted by the court, given that there was a sufficient prospect of the Claimant’s enforced or voluntary removal once his appeal rights had been exhausted).[113]He contended that the fact that the Claimant’s asylum claim was not ‘prioritised’ did not mean that it was not going to be considered. It was considered and refused relatively shortly after the note was made, on 13 December 2010. He therefore submitted that the Defendant did not detain the Claimant prior to 13 December 2010 for some purpose other than with a view to his removal and the Claimant has not identified any alternative purpose.[114]Mr Singh also pointed out that, in response to a request treated as being for information under the Freedom of Information Act, the Secretary of State for the Home Department sent a letter dated 19 October 2012 which stated that 12 enforced removals were made after the ECtHR decision and that enforced removals therefore had continued after the decision in Sufi & Elmi. Although the letter stated that no enforced removals to Somalia were currently scheduled, it did not state that none were in prospect. In reply to a FOI request that said ‘we anticipate the next enforced removal to take place in July 2012’, the letter replied that ‘there were no enforced return in July 2012’,’there were no enforced returns to Somalia between 11 July 2012 and the date of the letter’ and that ‘there are currently no enforced returns to Somalia scheduled’. However, in a witness statement Timor Dellaloglu of the Home Office stated that removals to Somalia had never been suspended and that removals to Somalia continued to occur. Mr Singh, therefore, submitted that there would have been nothing to prevent the Claimant’s removal, once his appeal rights had been exhausted, and that he could have been returned voluntarily.[115]He therefore submits that there is accordingly no merit in the Claimant’s claim that the first Hardial Singh principle was breached. Discussion[116]I reject the submission that the note demonstrates a deliberate decision not to consider the Claimant’s asylum claim. However, it seems to me that, even if the decision to detain did not involve a deliberate decision to detain contrary to the limited statutory purpose in s 36(1)(a) 2007 Act, it would be open to the Claimant to argue that she had been in breach, because the Defendant misunderstood the statutory purpose for detention under s 36(1)(a).[117]However, I have carefully considered the terms of the note and construed its meaning objectively and in context. I accept Mr Singh’s submission that the author of the note considered that the Claimant’s case was not a priority and reject the submission that the Claimant was being detained contrary to the limited statutory purpose of s 36(1)(a).[118]I have also carefully considered the evidence concerning forced returns to Somalia and find that he material shows that the numbers removed are tiny relative to the numbers who were liable to be returned. In those circumstances I find that the Secretary of State has failed to discharge the burden upon her to demonstrate the she intended to deport the Claimant and only used the power to detain for that purpose.[119]I did not receive any submissions at the hearing concerning a date at which the Secretary of State failed to discharge the burden of demonstrating that she intended to deport the Claimant and would only use the power to detain or that purpose. Subsequently, however, the Claimant has submitted that the relevant date for these purposes was July 2010,[120]I reject the Claimant’s submission. As I indicate below, I have regarded this issue as analogous to the question of whether, before the expiry of the reasonable period, it became apparent that the Secretary of State will not be able to effect deportation within that reasonable period (Hardial Singh principle 3) or, to formulate the issue more precisely, whether it became apparent to the Secretary of State at any determinable point that she would not be able to effect deportation within a reasonable period.[121]Unfortunately, very little evidence has been adduced by the Secretary of State to address this issue. In my judgment the Secretary of State was entitled to a reasonable period to assess the likelihood of effecting returns to Somalia. Doing the best I can, on the extremely limited material before me, I find that the Secretary of State ought to have concluded that the Claimant could not be returned by August 2012. Issue 3: whether, before the expiry of the reasonable period, it became apparent that the Secretary of State will not be able to effect deportation within that reasonable period (Hardial Singh principle 3) The Claimant’s submissions[122]Ms Harrison QC submitted, in the alternative that even, if the Defendant were to establish, contrary to the above, that there was a real prospect of removal of the Claimant to Somalia, the Defendant cannot establish that she could effect the Claimant’s deportation within a foreseeable reasonable period of time. She submitted that, in light of the fact that the Defendant recognised these developments following the judgment in Sufi and Elmi, and, in particular, enquires to be made about where he was from and his clan group from information within the Defendant’s own files.[123]She submitted that it was still unclear whether all relevant material has been disclosed in respect of this matter, but it appears from the GCID records that this requirement was identified as early as January 2012, as part of the Sufi and Elmi review; and points out that the GCID record in March 2012 instructs the case owner to continue to establish his clan.[124]Prior to the judgment in Sufi and Elmi being declared final the Claimant had already been detained for 1 year and 5 months (17 months). Further fresh consideration of his claim was required and he could not be removed until it had been concluded. This took a further 12 months to conclude and generated grounds for a fresh right of appeal which could not be concluded for a further 3 months.[125]This factor alone was sufficient to mean that removal could not take place but, in addition, this was apparent, following service of the new expert report of Ms Lackenby of 19 April 2012, because, contrary to the previous findings of the FTT, there was now compelling evidence of a subsisting and close relationship with his British Citizen son. The Defendant first had notice of the content of the report when an email from Ms Lackenby summarising her conclusions was put before the Upper Tribunal at the hearing on 3 April 2012. The full report was before the Defendant shortly before the hearing before HHJ Waksman QC on 25 April 2012, who referred to it in his judgment at paragraph 7(4).[126]However, the report was first served on 20 April 2012, and both the Court and the Treasury Solicitor indicated that it required to be considered in the ongoing decisions to detain the Claimant: see witness statement of Daniel Furner at para 23.3. It was not, however, referred to in any detention reviews which relying on the Tribunal findings of May 2011 maintain that the Claimant had no “meaningful or significant” contact with his son. It was also relied on in detailed submission for release dated 21 June 2012. These were not addressed until 29 August 2012, but then it was irrationally and unfairly treated as not raising anything new that was not before the FTT- despite the fact that the internal case records clearly indicate that the Defendant’s officer understood that it was significant new evidence that would give rise to a fresh right of appeal. Ms Harrison submitted that it is also of concern that this report was not even taken into account in a further decision to split the family and when seeking advice from the Office of the Children Champion in September 2012.[127]In the alternative, once it was accepted that there would be a further right of appeal which acted as a further legal bar on removal in December 2012 and the Claimant had been detained for a period in excess of 2 years and 5 months, there remained only limited prospects of effecting removal in any event, the detention became unlawful.[128]In assessing the compatibility of the continued detention with Hardial Singh principle 3 it is accepted that the Claimant committed a serious criminal record and the index offence of violence is very serious offence (underscored by the 5 year sentence) and the judge’s sentencing remarks. However, the OASYS assessments of the risk of reoffending was judged to be medium, he was on the enhanced regime whilst in prison and had been recommend as suitable for open conditions and would have been in Open prison but for his immigration status. There was no issue identified as to absconding in the OASYS report and if released he would have been subject to probation supervision under conditions of licence until January 2013.[129]There was evidence of rehabilitation during the prison sentence which was his first experience of custody which had allowed him to distance himself from his previous lifestyle and associates. In addition, there were the stabilising factors in his life since the imprisonment, including the greater presence and contact of his mother, aunts, uncles, cousins and sibling in the UK and but foremost the establishment of an increasingly closer relationship with his British son: see reports of Ms Lackenby.[130]The Claimant had no history of absconding or failing to surrender. Although the Defendant had not been consistent on this matter, reliance was not placed on any independent risk of absconding separate from the risk of offending when faced with detention. It was submitted that, given the evidence of significant rehabilitation though the prison sentence, his strong family ties and the existence of meritorious legal remedies throughout, the Claimant had strong incentives to comply with conditions of release, which would be unlike prior to the imprisonment: i) into a structured environment of living with his mother; ii) with the imposition of strict and frequent reporting conditions; iii) with the imposition of electronic tagging; iv) with the opportunity to continue to build on his relationship with his son; v) with sureties if required. vi) In the context of his growing relationship with his son and the inevitable reducing therewith of his risk of absconding.[131]It is noteworthy that the Defendant only sought conditions of residence, weekly reporting and a tagging when he applied for bail and when released on bail, it was on minimal conditions. He had a residence requirement, reporting requirement once a month and was not subject to an electronic tag. At all material times these and indeed very more stricter conditions were available to the Defendant and would have supplemented the conditions of his licence, breach of which meant immediate return to prison.[132]Thus, Ms Harrison QC submitted that, whilst all cases turn on their own facts, this is not a case therefore like others where there is a combination of a high risk of reoffending and a high risk of absconding that have justified very lengthy periods of administrative detention, and without the strong incentive of the detainee being separated from his young son: see Abdi (supra). The Defendant’s submissions[133]Mr Singh submits that ‘realistic prospect of removal’ can be present even if there is no certainty that removal will occur at all: see R (on the application of Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, [2013] 1 WLR 649. In that case, a Somali national, M, had the benefit of a Rule 39 indication from the ECtHR in May 2009 that he should not be deported to Mogadishu pending a lead judgment from the ECtHR on the safety of removal to Mogadishu. M remained in detention until judgment was given over 2 years later, in the case of Sufi & Elmi.M argued that his detention was unlawful because there was too much uncertainty as to when he might have been removed for there to have been a realistic prospect of deportation within a reasonable time.[134]The Court of Appeal rejected M’s claim. It stated that the Secretary of State did not have to identify a finite time by when removal could reasonably be expected to be effected. There could be a realistic prospect of removal even if there was no certainty that removal would occur at all. At the time of receipt of the Rule 39 indication, there had been a realistic prospect of the ECtHR proceedings being concluded and removal being effected within a period which was reasonable in all the circumstances, although it had not been possible to say when they would be concluded.[135]He submitted that the same kind of reasoning applies in the Claimant’s case who contends that there was a delay in considering his asylum claim in 2010. However, Mr Singh submits that it cannot follow from the length of time the Defendant takes to make a decision that throughout that time, there was no realistic prospect of removal. A similar argument was considered and rejected in the relatively recent decision of the Administrative Court in R (on the application of Cente Sheikh Noor Mohammed) v SSHD [2014] EWHC 1898 (Admin). Mr Ben Emmerson QC, sitting as a Deputy High Court Judge, stated that:
“[31] The third issue raised by the Claimant relates to the claim which he made on 16 September 2008 for asylum and for the deportation order against him to be revoked. The Defendant did not respond to these representations until 12 August 2010, after the Claimant's release from the second period of detention on 17 February 2010 (some 17 months after the representations were made). The Claimant contends that the existence of outstanding and unanswered representations operated so as make it apparent, from 16 September 2008, that he could not be removed within a reasonable time. If the Secretary of State knew at the outset that she was going to take such a lengthy period to respond then she would have to have powerful reasons for exercising her power to detain in the meantime…However, the mere fact of representations having been made which have not been responded to does not necessarily equate to a finding that the Claimant could not be removed within a reasonable period of time. The proper question is whether, at any determinable point during the Claimant's detention, it should have become apparent that the representations would not be responded to within a reasonable time…it was not, in my view, apparent at any determinable point in the process prior to the Claimant's release on bail on 17 February 2010 that the representations would not be responded to within a reasonable time”
[136]Similarly, it is submitted that in the Claimant’s case, it was not apparent at any point during the Claimant’s detention that the asylum submissions he made in February 2009 would not be responded to within a reasonable time. His immigration detention did not commence until 8th July 2010 and his asylum claim was determined within a reasonable period thereafter, on 13th December 2010.

The Claimant’s submissions in reply

[137]Ms Harrison QC submitted that this principle was simply never applied by the Defendant in any detention review. She submitted that the Defendant has misconstrued the fact that it is not necessary to identify a specific date as meaning it is not necessary to identify whether any reasonable period would be unreasonable; and renders the Hardial Singh principle 3 otiose, and in precisely the category of case where it is most relevant. She submitted that the Secretary of State simply never addressed her mind to what was the likely period at any point and however long the detention continued and in spite the increasing burden upon her to do so: see MH.[138]She further submitted that the three factors identified by Longmore LJ in granting permission (Sufi, the date when the UT granted permission on human rights grounds (13 August 2011) and 19 October when the Secretary of State replied to the Freedom of Information request) quite properly put into question the continued legality of the decision to detain the Claimant on the 31 October 2012 and should for the reasons developed have resulted in his release from detention.[139]Ms Harrison QC, again, submitted that, in making its own judgment about the legality of the detention the Court is entitled to make its own view about compatibility with HS principles and the existence of a real prospect of removal within a reasonable period of time: i) despite the gravity of the offence it is accepted that the risk of reoffending was medium and not high as found by the Secretary of State; ii) the initial decision to detain and subsequent DRS did not treat absconding as high except as an aspect of offending. He had no history of absconding or failure to comply with conditions of his immigration leave; iii) throughout he had outstanding legal remedies that contrary to the repeated assertions of the Defendant had merit; he was given permission to appeal against the FTT decision by the UT and eventually won on his appeal. iv) He could and according to policy should have been released on strict conditions: see the UKBA Enforcement and Guidance, chapter 55.3.2.11; v) He would have been subject to onerous licence conditions; vi) There was evidence of rehabilitation and the impact of a first prison sentence; vii) At least after April 2011, the risk of reoffending and absconding had to be reviewed.

Discussion

[140]I would, with respect, adopt the reasoning of Mr Emmerson in Cente Sheikh Noor Mohammed and hold that the critical question is whether at any determinable point it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period.[141]I do not accept the specific submissions which Ms Harrison QC has advanced. However, in my judgment the evidence concerning forced returns to Somalia is relevant to this issue. As I earlier indicated, I find that the material shows that the numbers removed are tiny relative to the numbers who were liable to be returned and that the Secretary of State has failed to discharge the burden upon her to show that, before the expiry of the reasonable period, it became apparent that the Secretary of State will be able to effect deportation within that reasonable period. As I indicated above, I find that that the Secretary of State ought to have concluded that the Claimant could not be returned by August 2012,[142]On the footing that my conclusion concerning the numbers removed to Somalia is incorrect, I now turn to the Hardial Singh principle 4 issue. Issue 4: whether the Secretary of State failed to act with reasonable diligence and expedition to effect removal (Hardial Singh principle 4) The Claimant’s submissions[143]Ms Harrison QC submitted that throughout the Defendant failed to act with the necessary expedition and due diligence required by Hardial Singh principle 4 with the result that the detention was unnecessarily and unreasonably prolonged. The Claimant relies upon the following matters: i) No steps at all were taken to determine whether or not the Claimant could be subject to automatic deportation whilst serving the criminal sentence and his response to the Defendant’s indication that he was liable to automatic deportation was never addressed prior to the completion of his sentence. Only in June 2010, well over a year after it had first been raised, was the Claimant interviewed in connection with his asylum claim ; ii) As set out above his claim was not considered between July and November 2010 and on the basis that he could not be removed from the UK to Somalia; iii) Contrary to internal guidelines and/or its own duty of enquiry and/or fairness the Defendant did not consider the evidence it held on its files relating to the Claimant’s close family members when making the decision to refuse asylum and did not do so, even after it was identified as necessary. It took the Defendant over 8 months to conduct that review and when it did so it was clear that it required a fresh right of appeal and was a bar to removal. iv) The Defendant gave no or no proper consideration to the additional evidence from Ms Lackenby for some 8 months and when it did so, it was clear that it required a fresh right of appeal and was a bar to removal .[144]She submitted that the duty of due diligence and expedition applies equally and in all cases, irrespective of the justification for the detention. The Defendant cannot lawfully prolong administrative detention by her own failure to act with all reasonable and due diligence. The Defendant cannot seek latitude on this matter by reference to the risk of reoffending or absconding. If the detention is prolonged by a breach of the Hardial Singh principle 4 that period will be unlawful.

The Defendant’s submissions

[145]Mr Singh submitted that the Defendant acted with reasonable expedition to progress the Claimant’s case at all times. He repeated his submission concerning the alleged delay in determining the Claimant’s asylum claim and says it was determined on 13 December 2010, only about five months after the Claimant entered immigration detention. As for the report of Ms Lackenby, the Claimant suggested that the Defendant did not give ‘proper’ consideration to it until December 2012 but Mr Singh contended that the Defendant considered it promptly after the Claimant made it the centre piece of his application dated 9 November 2012 to revoke the deportation order in force against him.[146]Mr Singh noted the obligation on the Defendant under the fourth Hardial Singh principle is to act with reasonable expedition to effect the Claimant’s removal, and there is no obligation on the Defendant to act in the quickest possible time. Therefore, even if certain things could have been done quicker, it does not follow that a breach of the fourth Hardial Singh principle has been established.

Discussion

[147]In the facts and circumstances of the Claimant’s case I find that the Secretary of State did not fail to act with reasonable diligence and expedition to effect removal in breach of the Hardial Singh principle 4. Issue 5: whether the Secretary of State breached section 55 of the Borders, Citizenship and Immigration Act 2009 The Claimant’s submissions[148]Ms Harrison QC submitted that, once the Defendant had been served with the new report of Ms Lackenby in April 2012, she became under a duty to take account of the best interest of the Claimant’s son in the decision making about the continued detention and separation from his son. It was plainly in the child’s best interest to be permitted to develop further the father- son bond that had been established whist the Claimant was in prison and to permit family life between him and his father, to the fullest extent. It was also plain that as the child became older his awareness of his father in detention would become more prominent and would lead him to rely on coping mechanisms to deal with his father’s absence.[149]She submitted that the Defendant failed to take into account properly or at all the evidence of the relationship between the Claimant and his son in the report of Ms Lackenby and to apply the requirements of section 55 of the 2009 Act and, in particular, that the best interests of the child were not considered at all never mind as a primary factor. The Defendant continued to operate on the basis that there was no family life between the father and the child and continued to rely on the previous determination to that effect.

The Defendant’s submissions

[150]Mr Singh submitted that it is important to note that, on the basis of the findings of both the FTT in May 2011 and the UT in April 2012, the Claimant, in essence, had no meaningful relationship or family life with his son. There was no obligation on the Defendant to consider the best interests of the Claimant’s child when making decisions about the Claimant if the Claimant in fact had no relationship with that child.[151]He pointed out that Ms Lackenby’s first report was considered by the FTT and the UT, that the UT took the view that her assessment of the genuineness (or otherwise) of the Claimant’s intentions as to his relationship with his son was a matter outside her expertise and that she could not be described as an expert in this context. As a result, her report did not cause either the FTT or the UT to decide that the Claimant in fact had a real relationship with his son.[152]The Defendant received Ms Lackenby’s April 2012 report, which was, in nature, similar to her first report, and he submitted that, it is not accepted that the Defendant had to immediately assume that family life between the Claimant and his son had in fact been established. The Defendant was entitled to proceed on the basis that there remained no real family life, as determined by the FTT or the UT, at least until she was able to carefully consider the report. On 29 August 2012 and, again, again on 13 December 2012 the Defendant decided that the report did not advance the position in respect of family life from that found by the FTT and UT. The Defendant, accordingly, maintained her view that there was no real family life between the Claimant and his son. In those circumstances, there was no obligation on the Defendant to consider the best interests of the child, or alternatively any consideration of best interests by the Defendant would have been nugatory, as the Defendant remained of the view that the Claimant had no relationship with that child.

The Claimant’s submissions in reply

[153]The statutory duty under section 55 of the 2009 required the Defendant to have regard to the best interests of the child and Ms Harrison submitted that the Defendant did not dispute that Ms Lackenby’s second report of April 2012 was not considered in any detention review; and she contended that this rendered the detention unlawful : see Kambadzi at [86].[154]She identified the reliance placed upon the report on 29 April 2012, 3 months after it was served. This is in a single paragraph and simply asserts that “Your submission are not significantly different from the material previously considered” and reliance was placed on the previous FTT decision. Ms Harrison QC submitted that this approach is plainly in error and flawed reasoning. The submission as that the Secretary of State did not think much of it, but by December 2012 it was being treated as evidence that did justify a further right of appeal and, ultimately, it was upon this evidence that the Claimant succeeded in his appeal.[155]This material was clearly directly relevant to the decision to detain it was a basis upon which release was refused. It was material fresh evidence that had to be considered and was if properly assessed as capable of generating a fresh right of appeal which would clearly significantly prolong the Claimant’s detention and by this stage he had already been detained for over 2 years.[156]Furthermore its content was highly relevant to the assessment of risk of reoffending and absconding which again were facts that had to be taken into account in continuing to detain under Hardial Singh principles and policy and, in particular, whether conditions could meet identified risks.

Discussion

[157]Section 55(1)(a) provides that: The Secretary of State must make arrangements for ensuring that— . (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom,[158]I do not find that the Secretary of State breached section 55. In my judgment the Defendant was entitled to rely upon the findings and conclusions in the earlier FTT and UT decisions in relation to the Claimant’s child. In December 2012 the Secretary of State took the initiative to place Ms Lackenby’s reports before a new FTT which then fundamentally reviewed the position; and thereby satisfied her duty under section 55.

CONCLUSION

[159]I have reached the following conclusions: i) I reject the Claimant’s submission that the Defendant’s officers deliberately sought to conceal the officer’s consideration of the significance of the evidence of the family members and did so without any sustainable good reason. ii) I find that the Secretary of State was under a duty of candour to make specific enquiry inside or outside her own department in relation to the Home Office records concerning the Claimant’s aunt, F W in accordance with that duty of candour was required to do from 6 August 2012 onwards. iii) I find that the Secretary of State treated F A W and F W as witnesses that were worthy of belief whose asylum claims had succeeded yet allowed their account to be cross examined at the first FTT on the basis that they were not credible witnesses. In my judgment that resulted in conspicuous unfairness in her treatment of the Claimant’s asylum claim. iv) I find that the evidence concerning forced returns to Somalia was tiny relative to the numbers who were liable to be returned and that the Secretary of State has failed to discharge the burden upon her to demonstrate on the balance of probabilities that there was a real prospect of removal of this Claimant to Somalia in accordance with Hardial Singh principle 1. Unfortunately, there is very little evidence concerning this issue and, doing the best I can, I find that August 2012 was the determinable point when it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period. v) In relation to Hardial Singh principle 3 I hold that the critical question is whether at any determinable point it became apparent that the Secretary of State would not be able to effect deportation within that reasonable period; I have not accepted the specific submissions advanced by Ms Harrison QC on this issue. However, in my judgment I find that August 2012 was the determinable point when it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period. In the event that my conclusion is wrong, I next considered Hardial Singh principle 4. vi) In the facts and circumstances of the Claimant’s case I find that the Secretary of State did not fail to act with reasonable diligence and expedition to effect removal in breach of the Hardial Singh principle 4. vii) In my judgment the Defendant was entitled to rely upon the findings and conclusions in the earlier FTT and UT decisions in relation to the Claimant’s child. In December 2012 the Secretary of State took the initiative to place Ms Lackenby’s reports before a new FTT which then fundamentally reviewed the position; and thereby satisfied her duty under section 55.[160]Accordingly, I find that the Claimant’s period of detention from 6 August 2012 until his release on bail on 26 February 2013 was unlawful.[161]However, Mr Singh submitted, that even if the Claimant had been unlawfully detained, he was only entitled to nominal damages. As I understand his submission (summarised in paragraphs 16-21 of his Speaking Note), he argues that the Claimant is only entitled to nominal damages because the Defendant’s public law errors were not “sufficiently linked” to the decision to detain or to the decision to continue the so as to render it unlawful. For the reasons I have indicated earlier, I reject this submission so far as it relates to the breach of the Defendant’s duty of candour and her duty to act fairly, on the ground that these public law errors caused the Claimant to be detained longer than he otherwise should have been. In any event, Mr Singh advanced no such submission in respect of any breaches of the Hardial Singh principles, and I therefore reject the submission that the Claimant is only entitled to nominal damages.[162]Accordingly, I order that this case be transferred to the Queen’s Bench Division in order that damages be assessed to reflect the period of time during which the Claimant was unlawfully detained, that is, from 6 August 2012 until his release on bail on 26 February 2013.

Cited in 2 later judgments