West, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3627 (Admin)

[2015] EWHC 3627 (Admin)Case No CO/250/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 December 2015
Before
PHILIP MOTT QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimant(on the application of PAUL WEST)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Graham Denholm (instructed by Wilson Solicitors LLP) for ClaimantDavid Bedenham (instructed by Government Legal Department) for DefendantHearing Hearing dates: 17 & 18 November 2015
JudgmentPhilip Mott QC :
[1]The Claimant says that he is Paul West (or Paul Ricky West) and that he was born on 28 May 1979 in Ghana to a Ghanaian father and a Jamaican mother. He says he was taken to Jamaica at the age of 3 months and raised there by his mother, and later his aunt. He says that he arrived in the UK at the age of 16 in 1995 on a visit visa to join his mother who was resident here. He says that he stayed, working in various jobs, until his arrest for drugs offences on 24 November 2005. He was sentenced to a term of imprisonment and recommended for deportation.[2]There is no particular reason to doubt this account, save for some inconsistencies in its telling, but there is also no supporting evidence at all prior to his arrest in 2005. That total lack of any documents is at the heart of the difficulties which faced the Defendant in trying to deport him to Jamaica or to Ghana. The question in these proceedings is whether she took too long in those attempts, while the Claimant remained in immigration detention.[3]That detention lasted from 27 August 2007, when the custodial term of his prison sentence expired, until 14 January 2010, when he was released on immigration bail. That is a period of over 2 years 4 months, substantially longer than the period of imprisonment he actually served for his offences.[4]Permission was granted to apply for judicial review at an oral hearing on 4 February 2011. The substantive hearing has been postponed on two occasions to await decisions of the Court of Appeal in other cases. The latest of these was R (Francis) v SSHD [2015] 1 WLR 567 in relation to the effect of the “mandatory” detention provisions in paragraph 2(1) of Schedule 3 to the Immigration Act 1971. It is now established and accepted (subject to the result of an appeal to the Supreme Court in a similar case) that the Hardial Singh principles apply to such detention as they do to detention under paragraph 2(2) of Schedule 3.[5]Directions were given in this case which allowed both sides to call witnesses of fact, and to cross-examine them, but it was agreed that none would be called and I have been invited to decide the issues on the witness statements and documents. Accordingly I am unable to express any view about the Claimant’s credibility, or whether he is who he says he is. In any event, that is not the decision I am called upon to make.

The Law

[6]The principles governing the use of detention pending deportation are clear and undisputed. They stem from the decision of Woolf J (as he then was) in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704. As restated by Dyson LJ (as he then was) in R (I) v SSHD [2002] EWCA Civ 888, they comprise four key 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.[7]Each case is inevitably very fact-sensitive, but Dyson LJ also gave guidance on the factors which must be considered:
“… 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.”
[8]I bear in mind what Dyson LJ also said in I and in R (M) v SSHD [2008] EWCA Civ 307, that however grave the risk of absconding and re-offending, there must come a time when it can no longer be said that the detention is reasonable.[9]I also bear in mind the comments of Carnwath LJ (as he then was) in R (Krasniqi) v SSHD [2011] EWCA Civ 1549, at paragraph [12]:
“The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained.”
[10]In considering the period of detention, as has most recently been affirmed in R (Fardous) v SSHD [2015] EWCA Civ 931, there are no tariffs or yardsticks to be applied. No length of detention is automatically lawful, and none is automatically unlawful. Each case must be considered on its facts.

Risk of re-offending

[11]I consider first the risk of re-offending, and start with the facts of the Claimant’s only conviction. In the autumn of 2005 the police ran an undercover operation targeting drug dealers in Cardiff. That involved making test purchases of both heroin and crack cocaine. On four occasions between 22 and 24 November 2005 the supply was made by the Claimant. On his arrest he was found to be in possession of £667 in cash and wraps of heroin and crack cocaine. A number of mobile phones were found in the house.[12]On 24 May 2006 the Claimant pleaded guilty to two counts of conspiracy to supply controlled drugs, one in relation to heroin and the other in relation to cocaine. There was in due course a written basis of plea. This stated that he had met a man known as G in Birmingham and had sold him a motorcycle for £500. He had been paid £150 and told that he would have to go to Cardiff for the remaining £350. He therefore accompanied G, who said he would find him work there. On arrival he was told that the only work available was supplying controlled drugs, so he agreed to get involved. He intended to stay for no more than a week to get his £350. Between 21 and 25 November he supplied heroin and cocaine on a number of occasions.[13]The Claimant was sentenced on 24 July 2005 to a term of four and a half years imprisonment. His basis of plea was not accepted by the prosecution, but there was no Newton hearing to determine the facts for sentence. Nevertheless the judge sentenced him on the basis that he was controlling two houses as stockholding warehouses for heroin and cocaine. This was a decisive rejection of the basis of plea. It led the Court of Appeal Criminal Division to reduce the sentence to three and a half years imprisonment, as he should have been sentenced on the basis of the plea entered, in the absence of a Newton hearing.[14]In effect, therefore, this was a 26 year old man with no previous convictions and no drug habit who had become involved in a major drugs supply business for a few days for purely commercial reasons. The pre-sentence report suggests a low risk of reoffending, although the contemporaneous OASyS report shows the risk to be medium.[15]Subsequent notes on the Defendant’s files suggest that he was assessed by his offender manager as presenting a low risk of reoffending.

Risk of absconding

[16]As explained above, the total lack of documents means that there is uncertainty about the Claimant’s identity. Although he claims to have been in the UK for ten years before his arrest, he has no partner, no children and no form of nuclear family. Equally, he has no known family or contacts in Jamaica. Accordingly there are no ties which would dissuade him from absconding.[17]Added to this, there are inconsistencies in his account. When arrested he is said to have given a date of birth of 28 May 1989 (although this would have made him only 16 in November 2005, so may well have been the result of a mistake or mis-hearing). He stated on arrest that he had been born in Birmingham. He later changed this to London. By February 2007 he was claiming to have been born in a hospital in Jamaica. In October 2007 he claimed to have been born in Ghana. These inconsistencies inevitably give rise to doubt about his true identity, and a fear that he would abscond and change his identity if granted bail. I accept that these fears were genuine and well-founded.[18]It is correct to say that as time went on the Claimant expressed a wish to leave the UK. In late 2008 he wanted to sign up for the Facilitated Return scheme. By September 2009 he said he would be happy to return to Ghana rather than be detained any longer. These expressions of frustration about his continued detention do not negate the well-founded fears of absconding, as his view if released might well have changed significantly.

Attempts to establish nationality

[19]The Claimant’s custodial term expired on 27 August 2007. Prior to this, on 23 November 2006 a deportation file was opened and in June 2007 a case owner was allocated.[20]On 26 February 2007 the Claimant was sent a notice of intention to make him the subject of a deportation order. A standard questionnaire was sent to him, and returned on 2 March 2007. It claimed that he was born at Jubilee Hospital in Jamaica. It set out a reason for coming to the UK which raised possible asylum issues.[21]It seems probable that the Defendant was unaware of the reduction in the Claimant’s sentence on appeal, and thus the earlier expiry of his custodial term on 27 August 2007. However, the steps already taken led to the prison service maintaining the Claimant’s detention and arranging a transfer to Harmondsworth immigration detention centre. The Defendant was certainly aware of this by 18 September 2007.[22]On 2 October 2007 a further notice of liability to deportation was served on the Claimant, with a further standard questionnaire. This time the Claimant claimed in his answers that he had been born in Ghana, but was brought up in Jamaica from a baby. On 15 October 2007 he stated that he did not wish to claim asylum any longer.[23]On 26 October 2007 Duncan Lewis & Co, solicitors for the Claimant, wrote with personal details about him. They said that he had worked through three employment agencies in Birmingham; Top Temps, Ideal Agents and Blue Arrow. He had for a while been in a relationship with a British national named Mitchell Smith. He also had two cousins in the UK.[24]Nothing was done to follow up this information at the time.[25]On 22 November 2007 an application was prepared for an Emergency Travel Document (“ETD”). It seems to have been sent to the RGDU, a department dealing with ETDs. The Claimant does not accept that an application was made to the Jamaican High Commission (“JHC”), and they denied in April 2008 that they had received one. This denial seems to have applied to a number of cases, and I am satisfied from the email of 15 April 2008 from Nigel Beaumont of RGDU to the case owner Deborah Schofield that the application was sent to the JHC in November 2007.[26]This conclusion is supported by the fact that officials from the JHC came to interview the Claimant in detention on 27 November 2007. The interview was part of “Operation Darragh” in which three Jamaican officials visited the UK to try and document supposed Jamaican nationals in detention. The officials were not dealing directly with the issue of ETDs, but only taking a view on Jamaican nationality. In the Claimant’s case they were apparently satisfied of this, but there was still no proof of identity.[27]The significance of this is explained in the email from Nigel Beaumont of 15 April 2008. He says that:
“JHC subsequently advised that before an ETD would be issued they had to be satisfied as to the individual’s identity and not just Jamaican nationality.”
[28]According to the witness statement of Simone Cole, which was put before me without the Claimant seeking to challenge it by cross-examination, the JHC were going to carry out further verification checks in Jamaica to confirm the details provided by the Claimant. The progress of these was in the hands of the Jamaican authorities.[29]On 14 January 2008 the Claimant was interviewed by an immigration official and gave further information about his personal life. The official said that they had been unable to trace the Claimant’s mother from the details given. The Claimant said that he believed his mother had his passport, but she had lived in a nursing home in Tottenham for about 10 years while suffering with depression. He never visited her and had no address or telephone number. He knew nothing of any employment she had. His father had died in Ghana when he was very young.[30]The Claimant went on to say that he had a National Insurance number, but did not know what it was. His longest employment was as a packer for Sainsbury’s in Worcester starting in 2001 and lasting for two years. He gave details of his brother and sister who lived in London, and a cousin who lived in Birmingham.[31]Nothing was done to follow up this information at the time.[32]In April 2008 there was activity to chase up the ETD from the JHC. As explained above, the JHC denied receiving this and other such applications. Further copies were sent to them. In a letter from the Treasury Solicitor of 13 June 2013 it is said that this second ETD application was not sent until 11 June 2008, but I prefer to rely on the contemporary documentation suggesting that it was sent by courier on 16 April 2008.[33]At about the same time the Claimant’s deportation appeal was heard on 25 March 2008, and dismissed in written reasons promulgated on 7 April 2008.[34]By the end of April 2008 the Claimant had been in immigration detention for 8 months. Nigel Beaumont of RGDU advised that without any supporting evidence the ETD application was unlikely to be agreed imminently.[35]On 11 June 2008 the defendant sent photographs of the Claimant to the JHC. The GCID notes for that date record:
“No timescale for return unless sup[p]orting evidence is obtained and submitted to JAM HC.”
[36]On 4 July 2008 there was a bail hearing before an Immigration Judge. The Claimant was represented pro bono, and there was a Home Office Presenting Officer present. Sureties were offered from a cousin, who was said to be “very close”, and an aunt who was severely arthritic. The cousin, Leslie Cesric, gave evidence and produced his immigration status document, although he was very uncertain about the precise blood relationship between him and the Claimant. The Immigration

Judge refused bail, but commented:

“This is a case where the length of time the applicant has spent in detention has caused me to give very serious consideration to the granting of bail purely in order to mitigate the effect of this deprivation of liberty.”
[37]No further steps were taken by the Defendant after this for the remainder of 2008. The matter seems to have been left entirely in the hands of the JHC, save for a letter to the Claimant inviting him to obtain evidence of his identity to assist in the documentation process.[38]On 16 October 2008, according to the witness statement of Simone Cole, the JHC said they were still pursuing verification checks in Kingston, Jamaica but requested further supporting evidence of the Claimant’s claimed Jamaican nationality.[39]At the detention review on 20 October 2008, by which time the Claimant had been in immigration detention for almost 14 months, it was noted:
“Timescales for the provision of travel documentation are not known as the matter is in the hands of the Jamaican authorities; although it should be noted that we have not been able to provide any supporting evidence of identity.”
The Deputy Director’s comment at this time was as follows:
“Maintain detention while we seek an ETD for this subject. There are no other apparent barriers to removal. Given that the subjects [sic] offender manager has deemed the risk of harm to the public to be low consider for release under a strict Contact Management regime and refer to the Chief Executive as appropriate.”
The suggestion of a release on bail was refused by the Strategic Director.[40]In the next monthly review the Director commented, on 27 November 2008:
“Until and unless the Jamaican authorities agree to issue an ETD we are at an impasse.”
[41]In the notes of a telephone conversation with RGDU on 16 January 2009 it was noted that:
“The lack of supporting bio-data is a problem and we have exhausted all avenues in this regard.”
[42]From 10 February 2009 there was a sudden burst of activity on the part of the Defendant. i) A further interview took place with the Claimant. ii) Contact was made with the British High Commission in Jamaica to find the Claimant’s birth certificate (probably a fruitless search if he had been born in Ghana as he claimed). iii) Enquiries were made of the police, as the Claimant said that he had a birth certificate among his possessions when he was arrested (as was pointed out, this was unlikely in view of the uncertainty about his date of birth in early police inquiries, and this claim was not made nearer the time when he applied to the police for the return of his possessions). iv) Enquiries were made of HMRC, presumably for any National Insurance documentation. v) Letters were written to the Claimant’s aunt and cousin, first identified in October 2007. vi) Enquiries were made of the bank and employment agencies identified by the Claimant. Of the employment agencies, only one (Blue Arrow) remained in existence. It does not appear that any direct approach was made to Sainsbury’s in Worcester, where the Claimant said he had worked for two years. vii) Further enquiries were made to find the Claimant’s mother in North London. viii) Details of a school in Jamaica were sent to the British High Commission there for verification.[43]All these enquiries eventually came to nothing. By 11 June 2009 the British High Commission comment was “I don’t think there is much more we can do”.[44]The following day Deborah Schofield ceased to be the caseworker, and that marked the end of activity on the part of the Defendant until the end of the year.[45]The Claimant suggests that this activity was all rather cynically connected to a forthcoming bail application, so that it was more important to be able to show activity rather than having any expectation of success. Whilst the trigger for the activity may well have been the threat of a bail application, I do not accept that the enquiries were conducted cynically. They were sensible and reasonably thorough enquiries which might have produced results.[46]On or about 10 September 2009 the JHC informed the Defendant that they would not be issuing the Claimant with an ETD as he had been born in Ghana, unless there was positive proof of his Jamaican nationality. The Jamaican case was formally closed on 4 November 2009.[47]Contact was made with the Ghanaian authorities from 22 September 2009, but on 13 November 2009 they rejected any suggestion that the Claimant might return there. The Ghanaian case was formally closed on 8 December 2009.[48]There was a final burst of activity starting on 30 December 2009. In general this consisted of repeating enquiries made in the first half of 2009, although the details of the contacts are different. i) Letters were again written to the Claimant’s aunt and cousin. ii) Contact was made with the London Borough of Haringey about the Claimant’s mother. iii) A direct approach was made to the Registrar of Births in Kingston, Jamaica. iv) Contact was made with a different school in Jamaica.[49]None of these enquiries proved fruitful, and this was known by 8 January 2010.[50]On 12 January 2010 Cranston J dealt with an application for interim relief in these proceedings, which had been issued earlier that month. His observations included the following trenchant comment:
“This matter has gone on for too long. The claimant has been detained for 2 years 4 months. This is at the upper end of what the law will sanction.”
[51]Two days later, on 14 January 2010, the Claimant was released on bail.

The Claimant’s submissions

[52]The Claimant puts forward eight stages for consideration of his detention: i) 27 August 2007 to 12 November 2007, during which time it is said that the defendant was initially unaware that the Claimant was in immigration detention, and then failed to take any action with a view to deporting him. ii) 13 November 2007 to 11 June 2008, by which date it was clear that there was no timescale for return without supporting evidence, of which there was none. iii) 11 June 2008 to 20 November 2008 (this should be 27 November 2008), when the Director commented that they were at an impasse. iv) 20 November 2008 to 16 February 2009 (this should be 10 February 2009), when activity started again. v) 16 February 2009 to 5 August 2009, when the possibility of Ghanaian nationality was raised as a bar to an ETD from Jamaica. vi) 5 August 2009 to 10 November 2009, by which time the Jamaican file had been closed. vii) 10 November 2009 to 13 November 2009, by which time Ghana had disclaimed liability for the Claimant. viii) 13 November 2009 to 14 January 2010, the date of release on bail.[53]Although the claim has been argued variously under the different Hardial Singh principles, the issues are simple: i) Did a time come when it should have been apparent to the Defendant that the Claimant could not be deported within a reasonable period? ii) Even if some hope of deportation remained, did a time come when in all the circumstances it was no longer reasonable to detain the Claimant further? iii) Did the Defendant act with reasonable diligence and expedition?[54]The Claimant raises a discrete point in relation to the first few weeks of detention under the first Hardial Singh principle. Since the Defendant was unaware of the expiry of the custodial term of the Claimant’s sentence, and the start of immigration detention, how could it be said that he was being held for the purpose of deportation? The answer to this is simple. The previous notice of intention to deport in February 2007, and the other documentation produced around this time which prompted the prison authorities to transfer the Claimant to Harmondsworth, are sufficient evidence of intention to deport to satisfy the first Hardial Singh principle. The delay in getting things moving I shall deal with as part of a general review of delay in this case.

The Defendant’s submissions

[55]The Defendant relies on the statement of Simone Cole, and the documentation, to show that there was always some activity, and that for long periods matters were under the control of the Jamaican authorities.[56]The fact that the wheels of administrative action in Jamaica moved exceedingly slowly is no reason to conclude that there was not always a reasonable expectation of deportation within a reasonable time. I was referred by way of example to the case of R (Choy) v SSHD [2011] EWHC 365 (Admin), in which detention between June 2008 and April 2010 was upheld. In the course of his judgment Bean J (as he then was) said, at paragraph [28]:
“I do not consider that at any point during the Claimant’s detention there was no prospect of removing him within a reasonable time. The Chinese bureaucracy was somewhat slow and exacting in its requirements but there was no impasse and no prospect of indefinite detention.”
[57]There was no obligation on the Defendant to pursue all avenues of enquiry at once. Legitimate issues of time and expense would make it reasonable to wait for a response from the Jamaican authorities before undertaking those enquiries.

Analysis

[58]In my judgment there was no unlawful delay at the start of the Claimant’s detention. Of course things might have moved a little faster if the Defendant had been aware of the Claimant’s successful appeal against his sentence, but the delay of about three weeks before the Defendant became aware is not enough to turn an administrative failing into illegality.[59]Thereafter things progressed reasonably well, albeit with a hiccup because the JHC appears to have lost the initial ETD application. In my judgment it was reasonable for the Defendant to wait initially before making more detailed enquiries into the Claimant’s background. By April 2008 it was apparent that some evidence of identity would be required before an ETD could be granted, but there was still a reasonable expectation that the Jamaican authorities would carry out the investigations which were needed in Jamaica, and indeed they would be best placed to do so.[60]By 11 June 2008 the difficulties appeared to have grown, and many months had passed without result. The note saying that no timescale for return could be given unless supporting evidence was obtained should, in my judgment, have prompted the Defendant to follow up the various leads obtained in interview and correspondence, and to seek to obtain such evidence. I do not think it was reasonable for the Defendant merely to sit back and wait for the Jamaican authorities, especially in the light of the comments from the Immigration Judge on 4 July 2008.[61]When the enquiries were finally started by the Defendant, on 10 February 2009, they took until 11 June 2009 to be proved fruitless. That is a period of four months. If those enquiries had been started in July 2008, after the bail application, they should have reached the same stage by mid-November 2008.[62]If this had happened, as I find that it should if the Defendant had acted with due diligence and expedition, the position would have come up for consideration at the monthly detention review started on 20 November 2008. It was at this review that the CCD Director commented that they were at an impasse. That word would have been even more apt if all the enquiries had by then been completed with nil response.[63]At that stage it would have been unreasonable to continue detention. Release under a strict Contact Management regime, as suggested the previous month by the Deputy Director, would have been appropriate. That decision should have been taken in principle by 27 November 2008, when the Director wrote his comments.[64]It would no doubt have taken a short time to set up that regime, which would have included finding a suitable address for the Claimant where he could stay as a condition of his bail, and from which he could report on a regular basis. His release would have taken place in the early part of December 2008. By that time he had already been in immigration detention for over 15 months.[65]Instead of this, the Claimant was not released until 14 January 2010, some 13 months later. I find that this was a period of unlawful detention under the Hardial Singh principles, not because all hope of deportation was gone, but because the prospect was only uncertain and in the distant future. Had the Defendant acted with reasonable diligence and expedition, and made her own enquiries earlier, she would have realised that deportation could not be effected within a reasonable period, and also realised that further detention was not reasonable in all the circumstances.[66]I have not overlooked the period in late 2009 and early 2010 when an approach was made to the Ghanaian authorities, and thereafter further enquiries carried out. In all those two periods amount to about two months. I have considered whether these should be added to the period of lawful detention, so as to reduce the unlawful detention to 11 months.[67]I have concluded that this would not be the right approach. Contact with Ghana could not sensibly have taken place without giving up on Jamaica, which was always the best chance of deportation. A final decision from the Jamaican authorities was not forthcoming until September 2009, so that this additional activity could never have taken place at the end of 2008, when otherwise the Claimant should have been released.[68]In my judgment these additional enquiries would have had to take place after the Claimant’s release on bail, so should not be added to the period of lawful detention.

Conclusion

[69]It follows that the Claimant is entitled to a declaration that he was unlawfully detained for a period of 13 months.[70]He has a claim for damages, as yet unquantified. I will give the parties time to agree these if possible. If not, they should be transferred to a Master or to the County Court for assessment.[71]The parties may be able to agree any costs orders. If not, I will decide them on written submissions.