Sino, R (on the application of) v Secretary of State for the Home Department (Rev 2) [2015] EWHC 1831 (Admin)

Case No CO/744/2015

[2015] EWHC 1831 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 25/06/2015

Before

MR JUSTICE HAYDEN

Between

THE QUEEN On the application of AMIN SINOClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Mr. Chris Buttler (instructed by Duncan Lewis Solicitors) for Claimant

Ms. Kerry Bretherton (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 16 TH&17 TH June 2015

Judgment

Mr Justice Hayden :

[1]The essence of this claim is that the Claimant has been unlawfully detained for specific periods, illustrated in the chronology below, and that he remains at present, unlawfully detained. This hearing has been listed to determine the claim for Judicial Review, through which route the Claimant seeks immediate release from detention; determination of the Defendant’s liability as to false imprisonment; resolution as to whether, if false imprisonment is established, damages should be compensatory or nominal.

[2]Though there is disagreement between the parties both as to the interpretation of case law and in respect of the inferences to be drawn from agreed facts there is some identifiable common ground which it is convenient to identify as the core framework for the application.

[3]It is agreed i) “All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so” (R (Lumba) v SSHD

[2012] 1 AC 245

, per Lord Dyson, para 65); ii) When detention takes place without lawful authority it becomes ‘false imprisonment’. Any error in public law vitiates lawful authority to detain where that error ‘bears upon and is relevant to’ the decision to detain; (Lumba supra, per Lord Dyson); “68 I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloff’s first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain.” 4. As Baroness Hale put it at para 207; “In other words, the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result - which is not the same as saying that the result would have been different had there been no breach.” iii) Whether it was the material error that caused the detention or resulted in the continuation of detention is irrelevant to the question of liability for false imprisonment; “71 I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.” (per Lord Dyson at para 71, Lumba) iv) In challenging the allegation of unlawfulness to any period of detention the Defendant bears the evidential burden, both in respect of justification of detention and in establishing that nominal rather than compensatory damages are payable; “80 Miss Anderson submitted that there is no obligation to file witness evidence in relation to whether or not there is an entitlement to compensatory or nominal damages, and that question is a matter for the court to assess. She also urged the court not to punish the Secretary of State for not filing evidence, and referred to the scarcity of resources, the heavy litigation burden on the Secretary of State, and the need to prioritise resources on those currently detained. The latter submission may reflect the position in which this part of the public service finds itself, but it was not and could not have been an invitation to the court to give the Secretary of State a privileged position in litigation. There is equally no question of the court punishing the Secretary of State or treating her less favourably than other litigants. The judge stated the correct position clearly. He observed

[2013] EWHC 682

at [21]:” “Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party . . . The basis for drawing adverse inferences of fact against theSecretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-GovernmentalOrganisations v Department of the Environment [2004] Env LR 761, para 86] _to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings” (per Beatson LJ, R (Das) v SSHD

[2014] 1WLR 3538

). “Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party . . . The basis for drawing adverse inferences of fact against theSecretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, [in the words of Lord Walker of Gestingthorpe in Belize Alliance of Conservation Non-GovernmentalOrganisations v Department of the Environment [2004] Env LR 761, para 86] _to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings” (per Beatson LJ, R (Das) v SSHD

[2014] 1WLR 3538

). v) Where liability for false imprisonment is established, it is difficult to see how the Secretary of State will escape compensatory damages unless she is able to show, on the balance of probabilities, that the Claimant could (as a matter of law) and would (as a matter of fact) have been detained in any event, see: Lumba, per Baroness Hale, paras 208 and 211; Lumba, per Lord Kerr, para 253; Kambadzi, per Baroness Hale, para 74; Kambadzi, per Lord Kerr, para 89; R (OM) v SSHD

[2011] EWCA Civ 909

, per Richards LJ, para 23; R (Das) v SSHD

[2014] 1 WLR 3538

, per Beatson LJ, para 76.

[4]There is also agreement between the Defendant and the Claimant that the Claimant has a history of “persistent low level criminal offending and absconding” to adopt the Defendant’s own characterisation of it within the papers. There is agreement that his offending likely arises from the Claimant’s drug addiction. There is no dispute with the opinion of Professor Katona, filed in these proceedings that the Claimant suffers from paranoid schizophrenia. The Claimant’s character is said by Ms. Bretherton, on behalf of the Secretary of State, to be “highly relevant to the reasons for his detention: had he been honest about his identity he would have been deported long ago and so not detained; had he not absconded he would have not have been regarded as at risk of absconding; had he not spent the sum paid to him in compensatory damages on drugs he could have afforded accommodation.” The Claimant contends these agreed characteristics have some bearing as to whether his detention was reasonable or, at times, in accordance with the principles in Hardial Singh

[1984] 1WLR 704

[5]A disturbing feature of this case is that the Home Secretary has detained the Claimant under immigration powers for the following periods: i) 8 July 2006 - 14 June 2011 (when the Claimant was released by order of the High Court) ii) 9 June – 7 August 2012 iii) November - 8 December 2012 iv) 31 May 2013 - present These periods total seven years and two months. Such a time span is a disturbing period for the executive to detain an individual under purely administrative powers. It would appear to be one of the longest aggregate periods that HM Government has ever detained an individual for in such circumstances. Though the period of detention was longer in the case of: Mustafa Abdi (formerly known as MA (Somalia) v Secretary of State for the Home Department

[2014] EWHC 2641 (Admin)

, the Claimant in that case posed a grave risk to the public, including to children. The Claimant here can not be categorised in that way, nor does the level of risk he poses to the public come anywhere close to that identified in Abdi (supra).

[6]In August 2011 Mr Sino brought a claim seeking: a declaration that he had been unlawfully detained; that any further detention would be unlawful; damages for false imprisonment and for breach of his rights under

Article 5 of the European Convention on Human Rights

. The case is reported as: R. (Sino) v Secretary of State for the Home Department [2011] 2249 (Admin). John Howell QC, sitting as a Deputy Judge of the High Court, determined that the SSHD had falsely imprisoned the Claimant for 4 years and 11 months. Ms. Bretherton has told me today that the Secretary of State has unreservedly accepted the findings in that judgment, has made no attempt to appeal it and regards the claim now in contemplation with such seriousness that she has arranged for a senior Home Office official to be present in court throughout this hearing (to assist the court as and when required). For a period of 4 years and 11 months, therefore, the Claimant was falsely imprisoned for which he received an order for compensation and immediate release. The Deputy Judge concluded thus:

“Many people may well be very concerned that an individual, who is the subject of a deportation order that was made because his removal would be conducive to the public good, has been able to frustrate his deportation by deliberately not co-operating with the Secretary of State for more than five years. They may well be outraged that such an individual may be entitled to any substantial damages for being detained because he was evidently determined to frustrate any efforts to remove him and the Secretary of State could not arrange his removal without his assistance. Nonetheless, however unattractive in the circumstances this Claimant’s claim for damages for the loss of his liberty may be, an individual’s failure to co-operate with the Secretary of State in facilitating his removal is not a justification in itself for any immigration detention. Such an individual’s failure to co-operate without reasonable excuse renders him liable on conviction on indictment to up to 12 months imprisonment. Immigration detention may only be justified if there is a realistic prospect of removing an individual within a reasonable period taking into account his failure to co-operate. In this case there was no such prospect. The Claimant is according entitled at least prima facie to damages for false imprisonment, which are more than nominal, to be assessed.”

[7]Mr Chris Buttler, on behalf of the Claimant, submits that this extraordinary history of detention demands ‘particularly anxious scrutiny’ and imposes ‘a heavy burden of justification on the Defendant’. I agree.

[8]On the 20th March 2013 the Claimant was sentenced to a period of 20 weeks imprisonment for an offence of shoplifting. At the expiry of that custodial sentence he was detained under immigration powers until the 31st May 2013, on which date the Strategic Director of Crime and Detention agreed to release him, contingent upon the provision of a suitable residential address at which he could be electronically tagged and so that reporting arrangements could be established. The Claimant did not provide a suitable address at that stage and, in consequence, was not released. It appears to be common ground that the Claimant had declined to discuss what had happened to his compensation monies. In essence it is contended on behalf of the SSHD that in declining to give information about his financial circumstances the Claimant was the author of his own misfortune and secured his own detention.

[9]The Claimant’s application and Detailed Statement of Facts and Grounds were filed on the 16th February 2015. Acknowledgment of Service and Summary Grounds of Defence were filed on the 25th February 2015, Detailed Grounds of Defence were filed on the 23rd May 2015. On the 27th April, HHJ Raeside QC made various Case Management Orders and adjourned the Claimant’s application for permission to apply for Judicial Review on Ground 1, granting permission on Ground 4 of the Amended Grounds. This was conditional upon the Claimant remaining in detention unless and until he was provided with accommodation or further order of the court. The Claim, as set out in the Amended Grounds of Judicial Review, dated 17th April 2015, was listed for hearing on the 16th - 17th June 2015.

[10]The issues have been succinctly distilled by Mr. Buttler in his Skeleton Argument dated 4th June 2015 and followed by Ms. Bretherton in hers, dated 12th June. Four issues arise for determination: Issue 1: Was it lawful for the Defendant to refuse to determine the Claimant’s application for s 4 accommodation? Issue 2: Was the duration of the Claimant’s detention at all times reasonable and/or did it at all times appear that the Claimant could be removed within a reasonable period? Issue 3: Was the deportation order lawfully issued? Issue 4: Has the duration of the Claimant’s detention become unreasonable and/or does it appear that the Claimant can be removed within a reasonable period?

[11]Issues 1 and 2 plainly relate to the private law claim. Issue 3 concerns the private law claim and the judicial review claim. Issue 4 goes only to the judicial review claim. Issues 4 and 2 are dependant on essentially the same analysis and can, for convenience, be dealt with together. On the 15th June I asked the advocates, as is my usual practice, to provide a short note setting out the agreed issues between the parties. They did not have very long to put the document together but it is, nonetheless helpful. It requires to be set out: i) The first issue is whether the alleged failure to reach a s4 decision renders the detention unlawful. It is agreed that this is only relevant to the period of detention between 13 January 2015 and 19 February 2015. ii) On liability, the Claimant contends that the only questions are whether(i) the refusal to entertain the application was unlawful and

(ii) it was relevant to the decision to detain. On compensatory damages, the Claimant contends that the Defendant cannot show that he could and would have been detained if the Defendant had acted lawfully. iii) The Defendant disagrees that the only barrier to release between 13 January 2015 and 19 February 2015 was the provision of s4 accommodation. The Defendant contends that release was 1) subject to a suitable address and or 2) it was for the Claimant to provide that address unless the Defendant was satisfied that he was destitute which she was not and or 3) the decision of 4 July 2013 and 12 November 2013 stood and had not been challenged and or 3)the relevant information was provided after April 2015 at which stage a decision was taken 4) the construction of s103 of the 1999 Act also meant no further application for support was to be entertained unless there had been a material change of circumstances.5) the matter was one of discretion which would have been exercised against the Claimant in any event and or 6) only the failure to provide an address could be challenged in the Administrative Court. iv) The second and fourth issues concern the Hardial Singh principles. There is principally one question of law in dispute between the parties: viz. whether a cumulative approach to detention can be adopted. The Claimant contends that it is possible to add together all periods of detention (including those for which he has previously been compensated) in relation to the second Hardial Singh limit. The Defendant disputes this approach is appropriate and contends that the Court is only scrutinising the current period of detention, such that previous detention is relevant only to the background. v) The remainder of the dispute on issue 2 and 4 concerns the application of established principles to the facts of this case. vi) The third issue is whether the Defendant was entitled to replace the deportation order with a further deportation order without reaching a fresh immigration decision. The Claimant contends that it was not entitled to do so such that the detention is unlawful from the point at which the deportation order was revoked. The Defendant contends that all that was done was to produce a deportation order in the correct name of the Claimant and thus the underlying deportation decision had not changed and so the deportation order is valid.

[12]Before turning to these issues it is necessary to understand something of the factual background underpinning this claim. I have been told that the Claimant is to be deported on the 27th June 2015 (i.e. in 2 days time) and that this will not be delayed to await this judgment. In order, therefore, to ensure that the Claimant has full litigation remedies (i.e. opportunities to pursue any appeal) I have undertaken to deliver this judgment expeditiously. Even my cursory outline of the history so far, indicates how pressing it is for Mr Sino to achieve resolution of his situation and to recover his liberty. In order to assist me counsel have, following the conclusion of the hearing, been able to agree a chronology of events. A practice that is very much to be encouraged and ought easily to be achievable in most applications for Judicial Review.

Background history

[13]On 3 July 2013, a request was made for an ETD (Emergency Travel Document) application pack to be sent to CROS (Country Returns Operations Strategy). The following day the Defendant issued a notice of refusal to provide the Claimant with Section 4 support on grounds that he was awarded damages in 2012 in respect of his unlawful detention claim.

[14]On 9 July 2013 the Defendant confirmed that the Claimant “will be released to a suitable address”, but no address had been provided. On 10 July 2013, in a letter to the Claimant’s solicitors, the Defendant responded to a challenge to the lawfulness of detention, contending that detention was lawful. In response, on 11 July 2013 the Claimant agreed to contact the Algerian consulate to speed up the ETD process.

[15]On 22 July 2013 the GCID case record indicates that during review the Claimant had stated that he cashed the cheque in respect of the damages paid to him in Finsbury Park but had no receipt or proof of this.

[16]On 26 July 2013, within a detention review, it was noted that the Claimant “…has been interviewed on numerous occasions by immigration staff and the Algerian Authorities. Checks have been conducted by HMRC, Interpol and the DVLA but we have been unable to reveal his true identity to date” and … “Notwithstanding Mr Sino’s continued lack of compliance and the likelihood of further offending (and consequent risk of harm) it is very likely that further immigration detention will be vulnerable to legal challenge, especially given his release in 2011 following a successful JR”. In his response to those observations and recommendations the authorising office commented as follows:

“in regards to the timescale of removal, I am satisfied on the facts detailed above that there remains a realistic prospect of removal within a reasonable period. (dependent on the outcome of these further investigations as detailed above). Paying reference to the … documentary evidence, I therefore concur with the case owner that the presumption to release is currently out weighed by the risk of harm to the public / risk of absconding and I therefore continued IS detention for a further 28 day period or until the outcome of the release referral is known”. “Notwithstanding Mr Sino’s continued lack of compliance and the likelihood of further offending (and consequent risk of harm) it is very likely that further immigration detention will be vulnerable to legal challenge, especially given his release in 2011 following a successful JR”

. In his response to those observations and recommendations the authorising office commented as follows: “in regards to the timescale of removal, I am satisfied on the facts detailed above that there remains a realistic prospect of removal within a reasonable period. (dependent on the outcome of these further investigations as detailed above). Paying reference to the … documentary evidence, I therefore concur with the case owner that the presumption to release is currently out weighed by the risk of harm to the public / risk of absconding and I therefore continued IS detention for a further 28 day period or until the outcome of the release referral is known”.

[17]On 1 August 2013, one of the Defendant’s officials recorded that the Migration Liaison Officer in Algiers was willing to talk to the Claimant. The official stated “I am not too much optimistic about the outcome of the interview”.

[18]On 12 November 2013, in response to a letter from Bhatt Murphy, the Defendant stated that accommodation would not be provided for the reasons set out in the refusal notice of 4 July 2013.

[19]On 3 December 2013 the Claimant’s solicitors responded, asserting that the damages settlement was confidential and pointing out that the Claimant had never had any documents by which he could obtain a bank account and was no longer in possession of any damages.

[20]On 10 December 2013, the Claimant requested to speak to the Algerian consulate and stated that he wanted to return to Algeria.

[21]On 24 January 2014 an ETD interview was conducted. The Claimant gave his name as Wahid Lazoul.

[22]On 14 March 2014 the Defendant made an application to the Algerian Consulate for a travel document. The application was made in the name of Amin Sino a.k.a. Wahid Lazoul. The letter noted that the Claimant was being held in detention and that the case was therefore considered by the Defendant to be a priority.

[23]On 25 April 2014 ETD documents were forwarded to the Algerian Consulate.

[24]On 25 July 2014 the Claimant was transferred to the Riverside Centre, Hillingdon Hospital under Section 48/49 Mental Health Act 1983.

[25]On 14 October 2014, at a detention review, the reviewing officer stated that:

“An application for a document was made in April 2014, but without supporting information, the Algerian authorities are continuing their verification checks in Algiers and as a consequence they cannot provide a timescale and hence for these reasons removal cannot be said to be a realistic prospect within a reasonable timescale”

. The authorising officer decided that detention should be maintained. It is to be noted that this review (the 18th detention review in this second period of detention) also contains the following:

“the Strategic Director made clear that detention should continue unless Mr Sino provided a suitable address. Mr Sino has made no attempt to provide an address. Due to the direct request of the Strategic Director to maintain detention until a suitable release date provided to mitigate the risk of harm to the public and the significant risk of re-offending and absconding, as outlined in Chapter 55 of the Enforcement Instructions Guidance, I propose detention is maintained.”

[26]On 14 November 2014, the 19th detention review, the Authorising Officer stated “The Algerian authorities continue to make verification checks as to Mr Sino’s claimed nationality and as a consequence removal cannot be said to be a realistic prospect within a reasonable timescale”. The views of the Strategic Director were also recorded in very similar terms to those set out above on the 14th October.

[27]On 24 November 2014 the Claimant was transferred back to HMP Wandsworth.

[28]On 1 December 2014 a pre action protocol letter was served in relation to the lawfulness of the Claimant’s detention. On 11 December 2014, on a detention review, the reviewing officer stated: “In terms of removal an application for a travel document was made on the 25 April 2014, but without supporting information the Algerian authorities are continuing with their verification checks. The delays in these checks has been a matter of discussion with the Foreign & Commonwealth Office, but as matters stand the timing of the issuing of the document is at the behest of Algiers, but we will raise this again with CROS and ask them to contact the Algerian Embassy. Removal therefore cannot be said to be a realistic prospect within a reasonable timescale”.

[29]He also added:

“it is proposed to maintain Mr Sino’s detention given his history of offending, his previous failure to comply with restrictions, his reliance on multiple identities and the absence of any form of a structured release plan that may have provided some form of stability and thus reducing his risk to the public”

[30]The authorising officer authorised the continuation of detention, stating “Mr Sino remains an unacceptably high risk of absconding and reoffending. Detention remains appropriate and proportionate to effect his removal from the UK and to minimise the risk of harm to the public”.

[31]On 19 December 2014 the ‘Caseowner’, Nathaniel Asafo-Agyei indicated that a submission had been sent to the Director to agree to authorise the Claimant’s release. The Defendant asked the Claimant’s solicitors to provide an address at which Mr Sino could reside. On 22 December 2014 during a telephone call, Mr Bell of Duncan Lewis indicated that the Claimant had no means and would need s4 support. He was advised to complete the ASF1 form for s 4 accommodation.

[32]On 7 January 2015 Duncan Lewis Solicitors submitted form ASF1, a statement in support, a letter before action and Mr Sino’s medical records. Paragraph 21 of the said statement provides as follows:

“21. It is contended that although the Applicant did win damages in his unlawful detention claim, he cashed these with the use of a high street cash converters. He has therefore not had any of this for a number of years and is destitute.”

[33]On 9 January 2015 a detention review concluded that detention should be maintained. The comments of the reviewing officer have been partly redacted.

[34]On 12 January 2015 it was noted that the Strategic Director had agreed to release the Claimant to a suitable address. The caseowner noted:

“…once I am given an address, I will proceed to make arrangements for Mr Sino’s release to that address and arrange for him to report to a Reporting Centre / Police Station closest to that address”

[35]On 13 January 2015, the Defendant’s caseworker wrote to Duncan Lewis Solicitors in the following terms:

“The director has agreed for Mr Sino to be released to a suitable release address and to be placed on a twice weekly reporting restriction. Once an address is provided, Mr Sino will then be released to this address and asked to report to a Reporting Centre/police station closest to that address.”

[36]The claim for judicial review was issued on 16 January 2015. It was said that detention was unlawful because there was no realistic prospect of removal within a reasonable period and/or because the Defendant had not determined the application for s 4 accommodation.

[37]On 21 January 2015 the Defendant wrote to Duncan Lewis indicating that:

“the Secretary of State was minded to release Mr Sino subject to a suitable release plan with accommodation. I conveyed this to Mr Bell on 13 January 2015 by email.”

[38]An IS151F was served on the Claimant on 6 February 2015.

[39]On 17 February 2015, Lewis J ordered the Defendant to file an acknowledgment of service on an expedited basis.

[40]By a letter dated 13 February 2015, and received by the Defendant on 19 February 2015, the Algerian Consulate listed 34 individuals who it accepted were Algerian nationals and in respect of whom Travel Documents could be issued providing that the details of their removal was passed to the Algerian Consulate at least 10 working days before their removal [797-798]. These included the Claimant under his name of Abdelouahid Lezoul. It was recorded he was also known as Amin Sino and Lazoul Wahid. His date of birth was recorded as 29 January 1972.

[41]On 24 February 2015 the Defendant made a deportation order in the name of Mr Lezoul. The original deportation order was then revoked under s 5(2) of the Immigration Act 1971, as described in the witness statement of Mr Finegan Assistant Director within the Criminal Casework, Immigration Enforcement Division of the Home Office. The Defendant decided to detain the Claimant until he was removed from the UK. The following day (25 February 2015) the Defendant filed and served an AOS which focused upon the issues which were pleaded at that time and, in particular, the application for urgent interim relief.

[42]The claim was listed for an interim hearing on 4 March 2015. The parties agreed to vacate that hearing in order to enable the Claimant to consider the response of the Algerian authorities received by the Defendant on 19 February 2015.

[43]On 20 March 2015 the Defendant filed and served a witness statement of Nathaniel Asafo-Agyei a caseworker in Team 2 of the Criminal Casework Division of the Home Office. He exhibited a series of documents including the CID notes.

[44]On 24 March 2015 Dr Kretzschmar, Specialist Trainee Forensic Psychiatrist, confirmed that, from a mental health perspective that the Claimant did not need to have supervised s4 accommodation. On 25 March 2015, Philip Mott QC, sitting as a Deputy High Court Judge, ordered the Claimant to file amended grounds of claim to address the validity of the agreement to issue an ETD and the Claimant’s fitness to fly.

[45]On 8 April 2015, on the Defendant’s instructions, Dr Cumming, Consultant Forensic Psychiatrist (approved under section 12 (2) of the Mental Health Act 1983, 2007 amended) produced a report of the Claimant’s fitness to fly. On 9 April 2015, on the Claimant’s instructions, Professor Katona produced a psychiatric report.

[46]On 14 April 2015, a s 4 caseworker wrote to Mr Asafo-Agyei, stating:

“As discussed section 4 bail team has reserved bail address since 27th February 2015, own room level 2. The address is… . Mr Sino has not been informed of this address, we wait further instructions from case owner”

. On 15 April 2015 Angela Wellington signed a witness statement. On 16 April 2015 Nicola O’Brien signed a witness statement. On 17 April 2015, at 17.15, Amended Grounds were served by the Claimant.

[47]On 22 April 2015 Dr Cummings stated:

“Having read through my earlier report and considered your earlier request, I would consider that he is fit to fly but would ask that appropriate consideration of his mental health needs are taken into account and that there may be an increased risk as removal approaches. I did not consider that his current mental state was of a nature and degree that would prevent him from flying.”

[48]On 23 April 2015 the Claimant’s solicitors served a consolidated bundle which included a witness statement from the Claimant in which he stated that he had spent his damages on drugs [916]. The Claimant also stated that he was not Mr Lezoul. As recorded in the order dated 24 April 2015, the Claimant agreed to file and serve a witness statement from Bhatt Murphy explaining how the damages in CO/7878/2010 were paid to the Claimant by 4pm on 27 April 2015. The Defendant agreed to make a decision under s4 Immigration and Asylum Act 1999 by 4pm 29 April 2015 providing the statement from Bhatt Murphy had been received. HHJ Raeside QC, sitting as a Deputy High Court Judge, adjourned ground 1 of the amended grounds. Permission was granted to the Claimant to apply for judicial review in relation to ground 4 on conditions that the Claimant remained in custody, unless release was agreed, he was granted bail or there was a further order of the Court. Directions were set for a hearing which was fixed on 16-17 June 2015 to address the Claimant’s claim for false imprisonment, including the question of compensatory damages, and the claim for judicial review.

[49]On 29 April 2015 the Claimant’s solicitor enclosed a copy of correspondence from the Claimant’s former solicitor Bhatt Murphy to the Defendant. That letter confirmed that the Claimant had been provided with his damages in the form of 6 cheques in the period January to February 2012.

[50]On 5 May 2015, the Defendant granted the Claimant section 4 support and provided a bail address at Heathrow Lodge, Bath Road, West Drayton, Middlesex, UB7 0EF.

[51]On 11 May 2015 Dr Cumming, Consultant Psychiatrist produced an addendum report. He concluded that the Claimant was fit to fly.

[52]On 15 May 2015 Mr Finegan requested that removal directions be set for the Claimant.

[53]On 19 May 2015 the case was referred to the Complex and Scheduled Removals Team and escorts and a medic were requested for the Claimant.

[54]On 8 June 2015, removal directions were set for 27 June 2015.

[55]During the course of this hearing Ground 1 of the Amended Grounds was dismissed by consent on the basis that it had become academic. The first of the issues identified by the parties is framed as follows: 57. Was it lawful for the Defendant to refuse to determine the application for accommodation in accordance with S4 of the Immigration and Asylum Act 1999?

[56]The Act provides: 4 [Accommodation] [(1)] The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons--(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;

(b) released from detention under that paragraph; or

[57]It is common ground between the advocates that support may only be provided for those who appear to the Secretary of State either to be destitute or to be likely to become destitute within a prescribed period.

[58]Mr Buttler predicates his argument on this issue on the premise that the Defendant had declined to make a determination of the s4 application, first presented on the 7th January 2015. It is emphasised that on the 19th December 2014 the caseworker sought the Deputy Director’s approval to release the Claimant to a suitable address. No address had in fact been forthcoming. It is plain that for some time the Claimant did not want to acknowledge that he had spent the entire compensatory award and was no longer in funds. Given the obligation on the Secretary of State to satisfy herself that the Claimant was or was likely to become destitute, there was an inevitable impasse. Only in a statement dated the 7th January 2015 did the Claimant begin properly to address his financial circumstances. By the 13th January 2015 the Defendant had agreed for the Claimant to be released to a suitable address subject to twice weekly reporting restrictions.

[59]The position of the SSHD can be tracked through the relevant Detention Reviews. It is plain, even from the chronology above, that identification of a ‘suitable release address’ was intrinsic to the decision making process in relation to the s4 application. The Claimant’s resistance to providing the necessary material on which a decision could be made meant that ultimately the reality was that no decision could be made until the information was forthcoming. Mr. Buttler presents much learning on this point, on the basis that there had in fact been an adverse tribunal decision. As I have said the decision was effectively adjourned pending receipt of the relevant information. Ms. Bretherton had not pleaded her case in this way but enthusiastically adopted this analysis. Accordingly, it is unnecessary for me further to explore the scope and ambit of section 103 (6) of the 1999 Act or the range of the maxim ‘expressio unius est exclusio alterius’ creatively developed by Mr. Buttler. In short no decision was made nor, on proper construction, was there any refusal to entertain the application. This ground of relief therefore fails.

[60]The second issue is identified as: Was the duration of the Claimant’s detention at all times reasonable? And/or did it appear, at all times that the Claimant could be removed within a reasonable period?

[61]This issue engages the second and third principles set out in R v Governor of Durham Prison, ex p Hardial Singh

[1984] 1WLR 704

at [706] (the Hardial Singh Principles) and conveniently distilled in R (I) v Secretary of State [2003] INLR 196 at [46] namely: i) The Secretary of State must intend to deport the detainee 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.

[62]To these principles can be added two further points. Firstly, the emphasis given to the importance of the ‘reasonable period’. See R (Amin Sino) v SSHD

[2011] EWHC 2249

; Bizimani v Secretary of State for the Home Department [2012] EWCH Civ 414. There is no doubt that the effect of detention on a detainee’s mental health is a very relevant factor to the evaluation of what constitutes ‘a reasonable period’ see: R (M) v Secretary of State for the Home Department

[2008] EWCA Civ 307

; R (Anam) v SSHD

[2012] EWHC 1770 (Admin)

. Secondly, I very much bear in mind that when applying the Hardial Singh principles, the Court acts as de facto decision maker in determining what is reasonable i.e. it does not apply a Wednesbury test see: LE (Jamaica)

[2012] EWCA Civ 597

[63]Guidance as to the interrelationship of these principles is to be found in R (I) v SSHD (supra). There Dyson LJ, as he then was, observed:

“[47] Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person ‘pending removal’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”

[64]Whilst emphasising that it was neither possible nor indeed desirable to constrain the concept of a ‘reasonable period’ in a proscriptive way, Dyson LJ nonetheless identified minimum or basic criteria:

“[48] ….But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”

[65]I have already expressed my profound concern about the aggregate period of detention in this case (i.e. 7 years 2 months). Mr Buttler has reviewed the periods of detention in focus in some of the recent case law and highlighted judicial comment. Whilst each case is inevitably fact sensitive, these require consideration: i) In R (Wang) v SSHD

[2009] EWHC 1578

, Mitting J observed that a period of 30 months was “right at the outer limit of the period of detention which can be justified on Hardial Singh principles except in the case of someone who has in the past committed very serious offences and who may go on to commit further such offences or who poses a risk to national security” (para 27). ii) In R (HY) v SSHD

[2010] EWHC 1678 (Admin)

, King J stated that a period of 45 months “must be well at the outer limit of any period which can be justified on Hardial Singh principles” (para 36). iii) In R (MH) v SSHD

[2010] EWCA Civ 1112

, para 63, Richards LJ stated that “the period of 38 months detention . . . is a very long period indeed for administrative detention pending deportation. Detention for that length of time merits the most anxious scrutiny”. iv) In R (Muqtaar) v SSHD

[2012] EWCA Civ 1270

, in relation to a “chaotic recidivist” with numerous criminal convictions, including two counts of robbery (i.e. much more serious than the Claimant’s offences), Richards LJ stated, in respect of 41 months detention, that “Immigration detention of that length is a matter of great concern and it seems to me that the period was near the outer limit of what could be justified in the circumstances of this case” (para 42).

[66]The first issue that arises for consideration is the significance of the total period of detention where, as here, it has been interspersed by periods of liberty. Mr Buttler contended that if the notional ‘reasonable period’ is, for example, 2 years then, ceteris paribus, it is breached whether that is “in the form of(i) 1 year detention, followed by 6 months liberty, followed by 1 year detention, or

(ii) 2 years straight.”

[67]Ms. Bretherton took a very different view. In her Skeleton she framed the SSHD’s response thus:

“What is in dispute is the approach of the Claimant, in suggesting that periods of previous detention should be added together, irrespective of whether they do not concern the period of detention which is being challenged Nor is it appropriate to draw analogies with criminal sentences. The period of detention in the present case is from 31 May 2013 to the present. The Claimant has already been compensated for the earlier period of detention and it is only the last period of detention set out at Paragraph 25 of the Claimant’s SA which is before the Court. Of course, the material difference between this and the earlier unlawful detention claim is that the Claimant can be removed and is to be removed imminently.”

[68]During the course of his submissions I suggested to Mr Buttler that neither of these polarised positions was necessarily correct. Whilst it would always, in my view, be wrong to disregard earlier time spent in detention, a strictly mathematical approach in circumstances where a Claimant incurred periods of detention relieved by periods of liberty was unlikely to helpful. The background of early detention will always be a highly relevant and important factor when evaluating the reasonableness of a subsequent period of detention. That is not quite the same as saying the respective periods should be added together numerically, for circumstances change e.g serious offences might have been committed or information discovered which renders deportation a real prospect rather than a vain aspiration. The latter will, in my judgement, for the reasons set out below, have a bearing on what is a ‘reasonable period’ of detention. Mr Buttler, on reflection over night concluded that he would not argue against my approach. It may be that the practical consequences of his earlier approach and mine are of very little difference. The distinction though is more than merely semantic.

[69]On behalf of the SSHD Ms. Bretherton acknowledges in her Skeleton Argument that most of the relevant principles are unlikely to be in dispute. She lists them thus: i) the power to detain pending deportation is one which can only be used for the period necessary for the operation of the machinery of removal. ii) the second and third limits are conceptually different iii) Although the Defendant is not required to set out a finite time by which removal can be effected, in the present case she can do so, namely on 27 June 2015, within a very short space of time. iv) In considering the length of detention self-induced obstacles cannot be relied upon, see for example R (Q) v Secretary of State for the Home Department

[2006] EWHC 2690 (Admin)

per Auld L.J. at Paragraphs 19 to 22. v) The risk of absconding is a matter of paramount consideration because if a person absconds the whole deportation regime is frustrated, see Toulson L.J. at Paragraph 54 The Queen on the Application of A v The Secretary of State for the Home Department

[2007] EWCA Civ 804

vi) The risk of re-offending is relevant see Dyson at Paragrah 107 to 110 of Lumba & Mighty

[2011] UKSC 12

; 2011 1 A.C. 245

[70]In the course of exchanges with counsel, whilst it has been emphasised that principles two and three in Hardial Singh are conceptually different, a consensus has emerged that ‘imminence of removal’ is a relevant consideration for the purposes of principle two i.e. the reasonableness of the period of detention. It is, to my mind, clear that a fixed date for deportation, accompanied by a clear plan, renders the intervening period of detention much easier to justify than circumstances which are inchoate or have not identified a deportation date at all. Following this discussion Mr Buttler concluded that he was not in a position to challenge the legality of the Claimant’s current detention on the grounds of either the second or third principles in Hardial Singh. Of course, that is without prejudice to the third ground of challenge (see below) as to the legality of the Deportation Order itself.

[71]As discussed, Mr Sino came to be further detained at the expiration of a term of imprisonment for theft. If the 4 years and 11 months were an unreasonable period to detain him in the first period of detention, as all now recognise it was, on what basis could a further period be justified? Implicit, (perhaps even explicit) within the submissions of the SSHD is that the clock started ticking afresh on this second period, that is to say, the evaluation of reasonableness began all over again without reference to the history. For the reasons I have looked at above, that is unsustainable. The intervening period of liberty cannot be regarded as re-birth of the powers to detain. Accordingly, it is contended on behalf of the Claimant that there must be some change of circumstances to justify this second period of detention.

[72]In Mr Sino’s first claim John Howell QC sitting as a Deputy

Judge of the High Court concluded as follows:

“231. For the reasons given, in my judgment the Secretary of State had no power to detain the Claimant when she did on July 8th 2006. The Secretary of State has not shown that there was then any realistic prospect of obtaining an ETD enabling the Claimant to be deported to Algeria within a reasonable period. The Secretary of State has not shown that there was any realistic possibility of that happening without the Claimant's co-operation and she has failed to show that there was any realistic prospect of obtaining it.” “232. But, even assuming that the Secretary of State was at least initially entitled to proceed in July 2006 on the basis that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD (which she was not), then the Secretary of State has not shown that, at least as from September 5th 2008, there was any realistic prospect of obtaining an ETD enabling the Claimant to be deported to Algeria within a reasonable period given the time which he had already spent in detention.”

[73]It seems to me that just as the Secretary of State was ‘at least initially’ entitled to proceed in July 2006 on the basis that she might be supplied by the Claimant with different, reliable information, which might lead to a successful application for an ETD, so in March 2013 she was entitled to a further period to assess whether the prospects of a timeous deportation had improved. This is tentatively conceded by Mr Buttler on the basis that such a permissible period would necessarily be short. I agree.

[74]In his supplemental document helpfully prepared overnight for the 17th June, i.e. the second day of this hearing, headed ‘Claimant’s notes on Hardial Singh’ Mr Buttler seeks to balance what he identifies as the relevant considerations: i) The starting point is that there was no power to detain in June 2011. ii) The mere effluxion of time between June 2011 and May 2013 could not reinvigorate the power to detain. iii) The further offence could reinvigorate the power to detain, but to a very modest extent, given the modest nature of the further offence and in view of the fact that this was anticipated by Mr Howell QC when concluding that the power had lapsed in June 2011. Accordingly – looking at this factor alone – the period permissible under HS 2 would necessarily be short. iv) Moreover, the period permissible under HS 2 must be reduced by: a) Co-operation, from 10 December 2013. b) Very serious deterioration in mental health, from March 2014.

[75]Therefore, the HS 2 (second Hardial Singh principle) period expired: i) Soon after 31 May 2013. ii) Alternatively, soon after 10 December 2013. iii) Alternatively, soon after March 2014. iv) On any view, long before 19 February 2015.

[76]Ms. Bretherton casts the exercise far more broadly, in which the Claimant’s conduct and character features heavily in assessing the basis for his ongoing detention. In her Skeleton Argument she puts it in this way: The reality of this case is that the period of detention is reasonable given that it is the conduct of the Claimant which has meant that detention was necessary:(1) When previously released and provided with a bail address in December 2012 he failed to attend the accommodation and absconded;

(2) He was detained after commission of yet a further offence after serving that sentence;

(3) Rather than choosing to use the sum he was paid in compensation in a constructive manner to obtain accommodation or training he choose to spend that money on illegal drugs;

(4) He provided a series of false details to the Defendant thus delaying his deportation. If he had disclosed his true identity at an earlier stage he would not now be detained, he would already have been deported.

[77]I find myself very much in sympathy with these observations, it is difficult to resist the entirely human reaction that the Claimant, by his lack of cooperation and his repeated offending, was, in effect, the author of his own misfortune. However, the powers of the Secretary of State do not extend generally to permitting her to curtail an individual’s liberty on these broad behavioural grounds. Hers is an administrative power of detention, circumscribed by the requirement that there be some prospect of achieving deportation. This fundamental premise is rooted in the respect for liberty and personal autonomy and traceable to Magna Carta: In A (Somalia) v SSHD

[2007] EWCA Civ 804

, Keene LJ summarised it:

“The power given by Parliament to the Secretary of State, by means of Schedule 3, paragraph 2(3) of the Immigration Act 1971, to detain a person “pending his removal or departure from the United Kingdom” only exists when and for so long as there is some prospect of achieving that removal or departure. That is clear from paragraph 32 of Lord Brown of Eaton-under-Heywood’s speech in Khadir.”

[78]The importance of the principle is uncompromisingly stated by Baroness Hale in R (Kambadzi) v SSHD

[2011] 4 All ER 975

at para 61:

“[61] Mr Shepherd Kambadzi may not be a very nice person. He is certainly not a very good person. He has overstayed his welcome in this country for many years. He has abused our hospitality by committing assaults and sexual assault. It is not surprising that the Home Secretary wishes to deport him. But in Roberts v Parole Board [2005] UKHL 45 at [84], [2006] 1 All ER 39 at [84]; sub nom R (Roberts) v Parole Board [2005] 2 AC 738, Lord Steyn quoted the well known remark of Justice Frankfurter in United States v Rabinowitz (1950) 339 US 56 at 69, that ‘It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.’ Lord Steyn continued: ‘Even the most wicked of men are entitled to justice at the hands of the State.’ And I doubt whether Mr Kambadzi is the most wicked of men.”

[79]On the 10th December 2013 the Claimant made a request to speak to the Algerian Consulate and stated that he wanted to return to Algeria. The GCID case reference sheets show that on that date Mr Sino initiated an approach to the relevant immigration officer ‘on A wing at HMP Wandsworth’. It is to be stressed that it was Mr Sino who made the approach. He requested to speak to an Algerian Embassy official, professing that he now wanted to return to Algeria. Historically, Mr Sino has not always been unequivocal or reliable in his requests. However, on this occasion he was plainly taken at face value and the notes, for the same date, reveal that a Mr Abdi, from the Embassy, was supplied with ‘different details to the application’ earlier submitted. Moreover, Mr Sino requested a fresh application to be made and new photographs to be provided. From this point onwards I am satisfied that the Secretary of State, through her officials, was entitled to conclude that the landscape had changed and the prospects of securing Mr Sino’s removal had, for the first time, become realistic.

[80]As events have now revealed, this was the first step on a journey that will lead to his now inevitable repatriation on the 27th June 2015. The longeurs of the negotiations with Algeria are obviously undesirable but at no point did they eclipse the reasonable prospect of securing Mr Sino’s removal, securing his detention, therefore, properly within the ambit of the Secretary of State’s administrative powers. Furthermore, the prospects were improved by the Claimant’s subsequent actions when, for example, on the 24th January 2014 he gave what I now understand to be his real name, Wahid Lazoul. During the course of argument though it appeared that the Claimant may have resiled from this. In fact, its significance is not in whether it was truthful but whether the SSHD believed it was an indication of increasing cooperation improving the prospects of rehabilitation. I emphasise this example so as not to fall into the trap, as others have done, of evaluating the detention with a retrospective eye as opposed to a focused consideration on what I consider was a permissible view at the time. That is to say not what view would have been justifiable if the decision- maker had been able to see into the future ( see R (Da Silva) v SSHD

[2015] EWHC 1157

[81]I have already observed (at para 37 above) that following the Claimant’s detention in March 2013 the Secretary of State was entitled to a period in which to re-evaluate any change of circumstances which might have improved the previously desultory prospects of a deportation. I have also there recorded Mr. Buttler’s tentative concession on the point. Nonetheless, prior to the 10th December 2013, the date by which I can, on the evidence filed, identify a significant change in circumstances, there exists a period of seven months. It is at this point that I consider the history of the case to be acutely relevant. Detention, by this stage, has to be set in the context of the very significant earlier period of unlawful imprisonment. The Claimant’s case and individual circumstances plainly warranted the most anxious scrutiny.

[82]It is clear that the Claimant continued to be less than frank about his financial circumstances, continuing to proffer no explanation about the missing compensation. Officers with day to day contact with Mr Sino were not optimistic. On the 11th July 2013 Mr Sino ostensibly agreed to contact the Algerian consulate to speed up the ETD process but he did not initiate it. This behaviour plainly echoes his previous responses in the period of his earlier detention. A criminal case worker is recorded as having made some rather arch observations which reflect what appear to be the general view on the ground:

“for the interview, I would like to suggest August 7th at 10.30. in the meantime, I would be grateful if you could send a request to all the prisons where the case was detained and ask them to check if they have any phone call records related to the case. I am not too much optimistic about the outcome of the interview. With [the compensation awarded], he could have flown back to Algeria in a private jet”

[83]Whilst I am satisfied that detention post 10th December 2013 is justified, reminding myself that this is a matter for my judgement and not a review of the rationality of the SSHD’s judgement (see A (Somalia) v SSHD [2207] EWCA Civ 804), the period leading up to that date has caused me concern. In exchanges with Ms. Bretherton I considered that it was possible to see some of the matters I have looked at above as indicating a superficial level of cooperation on behalf of the Claimant sufficient to establish some prospect of achieving removal. However, for the reasons I have indicated, the broader canvass reveals a different picture, the Claimant’s behaviour seemed closely to replicate that in his earlier periods of detention. Ultimately, it is for the Defendant to establish, on evidence, that there was a reasonable prospect of removal at this time. She has not.

[84]I should add that, from the 4th August 2014 to 24th November 2014 the Claimant was transferred to a psychiatric hospital, pursuant to the Mental Health Act 1983. A question arose as to whether detention in that period was properly pursuant SSHD’s powers of detention or overtaken by the Mental Health Act 1983. The position to my mind is clear: S.53(1) of the Mental Health Act 1983 authorises detention under these provisions (i.e. as an immigration detainee under S.48) only for such period as would have been reasonable to detain him otherwise. In any event, given as I have concluded, that there were prospects of removal within a reasonable period after the 10th December this issue does not require definitive resolution.

[85]What requires to be considered is the reasonableness of any period of detention following the expiry of the Claimant’s criminal sentence. I have already analysed the ambit and scope of such a period i.e. in order that SSHD could consider whether the prospects for removal had changed. It is entirely impossible to be proscriptive on this point. Ultimately I must determine, subjectively, what I consider to have been reasonable. Given the premium that requires to be placed on individual liberty I can not see detention being justifiable on this limited basis for more than eight weeks. It follows that I consider the Claimant to have been unlawfully detained between the 13th July 2013 and the 10th December 2013. In such circumstances he is entitled to damages for false imprisonment, which are more than nominal, to be assessed. I do not see that there is any basis to contend that, but for his unlawful detention, for the period I have found, the Claimant would otherwise have been detained. In principle, therefore, the Claimant is entitled to damages on a compensatory basis. The extent to which the Claimant’s behaviour in the period I have identified is relevant to quantum will be a matter for the District Judge ultimately responsible for the assessment. Was the deportation order lawfully issued?

[86]On the 24th November 2006 a Deportation Order had been made against the Claimant. At that stage the Claimant had given the name Amin Sino, an alias under which he pursued the earlier litigation. The Claimant has, as I have commented above, now revealed his true name to be Abdelouahid Lezoul. On the 24th February 2015 the Defendant made a further Deportation Order against the Claimant now in his correct name and thereafter immediately revoked the earlier order. Ms. Bretherton suggests that this point ‘now dominates the submissions of the Claimant, despite only appearing as a sub paragraph in the Amended Grounds.’ That rather overstates the position but certainly it is a point taken late in the day and one which has grown in prominence in the Claimant’s case. I agree with Ms Bretherton that it is opportunistic, at least, to criticise the Defendant for not having addressed the decision in R (Pryor) v SSHD

[2013] EWHC 2853 (Admin)

given the fact that even in the Amended Grounds the point was barely developed at all.

[87]Whilst the Defendant characterises the amended order as, in effect, a purely administrative correction, the Claimant contends that the order is unlawful and as such has rendered his detention unlawful since the 24th February 2015. The Claimant’s reasoning purports to be established in the judgment of Jeremy Baker J in Pryor (supra).

[88]I turn then to the statutory framework, which requires to be stated : “Section 3(5) of the 1971 Act provides:” "A person who is not a British citizen is liable to deportation from the United Kingdom if—(a) the Secretary of State deems his deportation to be conducive to the public good..."; Section 5(1) of the 1971 Act provides: "(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force." Section 5(2) of the 1971 Act provides: "A deportation order against a person may at any time be revoked by a further order of the Secretary of State..." Section 82 of the 2002 Act (as remained in force under the Immigration Act 2014 (Commencement No3, Transitional and Saving Provisions) Order 2014) provides: "(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2)In this Part 'immigration decision' means— (j) a decision to make a deportation order under section 5(1) of that Act, and (k) refusal to revoke a deportation order under section 5(2) of that Act." Section 79 of the 2002 Act provides: "(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order— (a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending. (3) This section does not apply to a deportation order which states that it is made in accordance with section 32(5) of the Uk Borders Act 2007. (4) But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies." The Immigration (Notices Regulations) 2003, which are made pursuant to section 105 of the 2002 Act, provide for the giving of written notice by the Secretary of State to an individual in respect of whom a decision to make a deportation order is made by the Secretary of State. Paragraph 2 of Schedule 3 to the 1971 Act provides: "(2)Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3)Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)." . . . . . . Once a deportation has been made: "(5)A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State." Paragraph 390 of the Immigration Rules provides: "An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii)any representations made in support of revocation; (iii)the interests of the community, including the maintenance of an effective immigration control; (iv)the interests of the applicant, including any compassionate circumstances." Section 32 of the 2007 Act provides: "(1) In this section 'foreign criminal' means a person - (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies, (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. ... (4) For the purpose of section 3(5)(a) of the Immigration Act 1971, deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection~(5) unless - (a) he thinks that an exception under section 33 applies ...". Section 33 of the 2007 Act provides: "... (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach - (a) a person's Convention rights ..." Section 34 of the 2007 Act provides: "... (4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of - ... (b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with subsection 32(5)." Paragraph 353 of the Immigration Rules provides: "When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection." "A person who is not a British citizen is liable to deportation from the United Kingdom if— (a) the Secretary of State deems his deportation to be conducive to the public good..."; "(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force." "A deportation order against a person may at any time be revoked by a further order of the Secretary of State..." "(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal. (2)In this Part 'immigration decision' means— (j) a decision to make a deportation order under section 5(1) of that Act, and (k) refusal to revoke a deportation order under section 5(2) of that Act." "(1) A deportation order may not be made in respect of a person while an appeal under section 82(1) against the decision to make the order— (a) could be brought (ignoring any possibility of an appeal out of time with permission), or (b) is pending. (3) This section does not apply to a deportation order which states that it is made in accordance with section 32(5) of the Uk Borders Act 2007. (4) But a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies." "(2)Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3)Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)." . . . . . . "(5)A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State." "An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii)any representations made in support of revocation; (iii)the interests of the community, including the maintenance of an effective immigration control; (iv)the interests of the applicant, including any compassionate circumstances." "(1) In this section 'foreign criminal' means a person - (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies, (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (4) For the purpose of section 3(5)(a) of the Immigration Act 1971, deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection~(5) unless - (a) he thinks that an exception under section 33 applies ...". "... (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach - (a) a person's Convention rights ..." (4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of - ... (b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with subsection 32(5)." "When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[89]Mr Buttler condenses the regime set out above in a succinct and convenient way in his Skeleton Argument. He submits that the first step to making a Deportation Order is a decision to make the order pursuant to S3(5) of the 1979 Act. At this stage he highlights the power to detain ‘pending the making of the Deportation Order’ conferred by para 2(2) of Schedule 3 of the 1971 Act. Here, a right of appeal arises: para 82 of the Nationality, Immigration and Asylum Act 2002 and Article 9 of the Immigration Act 2014 (Commencement No.3, Transitional and Saving Provisions Order 2014). The second stage is to make the Deportation Order under s5(1) the 1971 Act.

[90]Ms Bretherton agrees that the process falls into two stages as set out above. The Claimant places very great emphasis on the observations of Jeremy Baker J in Pryor (supra) at paragraph 44:

“44. To my mind, and having regard to the construction of the 1971 Act, the decision to make a deportation order has to be distinguished from the making of the deportation order itself. It seems to me that once a deportation order has been revoked the decision to make that deportation order falls away. Moreover, as this is a matter of principle, I do not consider that it is affected by the underlying motive of the defendant's decision to revoke the deportation order.”

[91]Certainly there is a distinction between a decision to make a Deportation Order and the making of the Order. The first stage involves the interrelationship of the State and the individual on the crucial matter of individual liberty (hence the route for an appeal). The second stage i.e. the order itself is, to my mind, administrative or facilitative. Indeed, the order cannot be made at all where there is an appeal pending from the initial decision. It seems to me that there is the clearest of distinctions between these two connected but essentially independent stages.

[92]Ms. Bretherton points to the fact that Pryor did not concern a purely administrative revocation but was a case where much broader issues were engaged. Jeremy Baker J identifies those wider issues thus:

“36. In the context of the factual situation which arises in their case, there is some superficial attraction in the defendant's submissions in that it is apparent that the reason why the defendant decided to revoke the first deportation order had nothing to do with any application made by the claimant for revocation. Nor had there been, so far as the defendant is concerned, any significant change of circumstances which led her to believe that the order was inappropriate; rather it was to allow her to consider the claimant's application, dated 8 February 2012, which had not previously come to her attention.”

[93]In the course of arguments in Pryor a hypothesis was advanced which, it is argued, foreshadowed the issue that arises here:

“38. It is further submitted by the defendant that if a new decision were required following the revocation, prior to the making of the new order, then this would require a further appealable decision to be made in a situation where, for example, the only reason for the revocation was a defect in the original order. However, this is, to my mind, not a valid argument in that if the original order was defective, then, depending upon the nature of the defect, the original order is likely to have been of no effect as would be a nullity; such that, its revocation in that situation would not be required.”

[94]Jeremy Baker J took the view that if an original order was defective it would likely be a nullity and accordingly its revocation would be otiose. There was however an important caveat: it would depend on ‘the nature of the defect’. I do not consider that Jeremy Baker J could have been contemplating a defect such as an alias. In this area of the law the use of the alias is rife and perhaps inevitably so where many are straining to avoid deportation. If a Revocation Order, the only purpose of which was to correct a false name, required the entire process of decision making for deportation to be commenced afresh, it would have serious repercussions in a system that is already under considerable stress. It would open up an obvious strategy for the desperate and opportunistic. Jeremy Baker J goes on to conclude as follows:

“In the event that the original decision to make a deportation order does not survive revocation of the subsequent deportation order, it matters not whether its extinguishment is caused by the making of the deportation order or its revocation, albeit on this I tend to the latter view. In any event, in order to make a further lawful deportation order, after the revocation of the former one, I consider that a further decision to make such an order is required. If none has been made, then it seems to me that any subsequent deportation will not have been made lawfully.”

[95]At the beginning of that paragraph the Judge appears to contemplate, consistently with paragraph 38 (set out above), the possibility that the underpinning decision may sometimes survive revocation of the Deportation Order. The phrase ‘in the event the original decision… does not survive’ seems to me to contemplate the possibility that it might. However, later, the Judge observes ‘in any event, in order to make a further lawful Deportation Order… a further decision to make such an order is required’.

[96]If Jeremy Baker J was intending, in this judgment, to conclude that a Revocation Order would, in any circumstances, vitiate the underpinning decision, I would, respectfully, disagree. It seems to me that the clear separation of these two stages, underscored by the existence by of an appeal route from the first stage, is inconsistent with that conclusion. There will certainly be circumstances where the revocation of the Deportation Order causes the decision itself to fall away. This, to my mind though, is not axiomatic or as the judge puts it ‘a matter of principle’. It will depend upon the particular circumstances of the individual case. It could not be clearer here that the order for revocation casts no threat at all on the integrity of the original decision making process, nor has anybody suggested it did.

[97]It has been drawn to my attention that in R (Antonio) v SSHD

[2014] EWHC 3894

Admin the Secretary of State accepted in her Grounds that Pryor was rightly decided. HHJ Bidder QC stated that he was ‘persuaded that was a correct concession’. However,

the Judge observed:

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

[98]It is not strictly necessary, on the facts of this case, for me to engage with the point raised in relation to para 2(2) of Schedule 3 (adopted by the Claimant) as here an immediate further Deportation Order was granted. I must do so however, because this point is said to lend support to the interpretation in Pryor. Whilst it is right that if the decision remains extant, following the Revocation Order, the detainee would theoretically remain in a state of uncertainty, both in relation to his detention (under para 2 (2) of Schedule 3) and to the making of another Deportation Order. The position of the detainee is amply protected, in my view, by his right to apply for Judicial Review either in respect of any decision or, of course, any failure to take a decision.

[99]Though Ms. Bretherton also began by conceding that Pryor was rightly decided, she later reviewed her position. If Pryor could not be distinguished, in the way she sought to establish, her alternative position became that it was wrongly decided. I do not propose further to burden this judgment by setting out the basis upon which she contended Pryor could be distinguished. Her emphasis was focused upon the ‘absurd consequences’ if applied in the way contended for by the Claimant.

[100]In conclusion, I reject the Grounds of Claim, save for and limited to my finding that the Claimant was detained between the 13th July 2013 and the 10th December 2013 when there was, at that stage, no realistic prospect of deportation. His detention was for this period, therefore, unlawful.

Cited in 1 later judgment

Sino, R (on the application of) v Secretary of State for the Home Department 2016