JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773 (Admin)

Case No CO/280/2016

[2016] EWHC 1773 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 15/07/2016

Before

MR JUSTICE JAY

Between

THE QUEENClaimant

On the application ofClaimant

JM (ZIMBABWE)Claimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Rory Dunlop (instructed by Duncan Lewis Solicitors) for Claimant

Julie Anderson and Jack Anderson (instructed by Government Legal Department) for Defendant

Hearing Hearing date: 5 th July 2016

Judgment

INTRODUCTION

[1]In these judicial review proceedings JM (whose identity is subject to an anonymity order and will hereinafter be referred to as “the Claimant”) seeks declaratory relief, damages for false imprisonment at common law, and damages for breach of Article 5(1)(f) of the ECHR, in relation to his detention pursuant to immigration powers between 5th May 2013 and 25th May 2016, excluding a period when he was detained pursuant to the sentence of the court in criminal proceedings.

[2]This is yet another case concerning the automatic deportation regime enacted by Parliament in the UK Borders Act 2007 (“the 2007 Act”), and the application of well-established Hardial Singh principles. These cases typically turn on a close examination of the Defendant’s decision making at all material times, and matters of minutiae. However, the instant case also raises, for the first time, an important point of principle concerning the true construction and application of section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (“the 2004 Act”) to Zimbabwean nationals who refuse to consent to removal to their homeland. But before this point of principle is thrown into sharp relief, and then analysed, it is necessary to set out the core background.

ESSENTIAL FACTUAL BACKGROUND

[3]The Claimant was born in Zimbabwe on 10th October 1987. He has been HIV positive since birth. In 2002 it appears that his health deteriorated and he was advised by his aunt to come to the UK. On 8th July 2002 he was given leave to enter as a visitor, claiming that he was coming on holiday. This was clearly untrue because his evident intention was to come for medical treatment. The Defendant has made no formal decision declaring the Claimant an illegal entrant, but were she to do so (and there would now be no point) her decision could not in my view be impugned.

[4]In 2002 and 2003 the Claimant applied for leave to remain on the bases, respectively, that he was HIV positive and dependant on his aunt. These applications were refused and in 2005 an Immigration Judge dismissed his appeal.

[5]It is, and always has been, an essential merits-based plank of the Claimant’s case that were he returned to Zimbabwe he would likely die within 15 months without access to antiretroviral drugs. Similarly, the Defendant’s constant riposte to this case is that the Claimant is not entitled to receive costly treatment in the UK at public expense, in circumstances where(a) he has no entitlement to be here, and

(b) his condition is not such that removal or deportation to Zimbabwe currently engages

Article 3 of the Convention

. These matters are not, of course, for me to determine.

[6]In 2006 the Claimant made an asylum application. This was refused by the Defendant and in due course his appeal was dismissed. The Claimant became “appeal rights exhausted” on 19th October 2006, if not before.

[7]Save for one excusable default, between 2006 and 2011 the Claimant complied with the reporting conditions attached to his temporary admission.

[8]On 4th May 2011 the Claimant was arrested for possession with intent to supply quantities of class A and class B drugs. On 20th May, he said that he did not want to return to Zimbabwe. On 26th August 2011, on his guilty pleas earlier entered, he was sentenced to a total of 4 years’ imprisonment.

[9]The automatic deportation regime prescribed by the 2007 Act was activated before the Claimant’s custodial term came to an end on 5th May 2013. Upon his release from prison, the Claimant was immediately detained pursuant to powers conferred by section 36(1) of the 2007 Act. On 11th November 2013 the Defendant decided that the Claimant did not fall within any of the exceptions to that regime, and she served a deportation order requiring the Claimant to leave the UK. From that date the Claimant was detained pursuant to powers conferred by section 36(2) of the 2007 Act. On 26th February 2014 the First-tier Tribunal (“F-tT”) dismissed his appeal rejecting arguments that he was entitled to protection as a refugee or under

Article 3 of the Convention

. The Claimant became “appeal rights exhausted” on 10th March 2014.

[10]On 3rd June 2014 the Claimant was offered the opportunity of an assisted return to Zimbabwe under the Facilitated Returns Scheme, but he declined it.

[11]Given that the Claimant’s passport had expired, his deportation to Zimbabwe predicated the grant to him by the Embassy of an Extraordinary Travel Document (“ETD”). It has been the policy of the Zimbabwean Government since 2002 that it will not grant ETDs to its nationals who do not wish to return. I will examine the evidence bearing on this point in due course.

[12]The Defendant initiated the process of seeking to obtain an ETD for the Claimant. To that end, the Claimant needed to complete a bio-data form. As a preliminary step, on 1st October 2014 the Claimant was interviewed by immigration officers. He told them that he did not wish to return to Zimbabwe, and that he would not complete the bio-data form. According to the Defendant’s record:

“… the subject was polite and courteous throughout. … He declined to do so [provide the information to enable the form to be completed] – although after lengthy discussion he did state that he was getting close to making a decision about returning. I clearly explained to the subject that continued non-compliance could result in him being prosecuted.”

[13]On 3rd November 2014 the Claimant was served with formal notice of the requirement to comply with the ETD process pursuant to section 35 of the 2004 Act. The requirement specified was that he attend an interview with immigration officers and complete a bio-data form. On 10th November the Claimant attended an interview but otherwise refused to comply. On 15th December he was arrested for non-compliance, but he later changed his mind and was not charged with any offence.

[14]An application was made by the Defendant on the Claimant’s behalf to the Zimbabwean Embassy for an ETD. On 28th January 2015 the Claimant was provided with a disclaimer form in connection with the ETD process to confirm that he agreed to return to Zimbabwe. The Claimant ticked the box stating that he would now comply with the Zimbabwean ETD application. He left open the box which required him to “[s]tate that I will comply with the ETD progess [sic] as I am will [sic] to go home to Zimbabwe”.

[15]On 4th February the Claimant was served with a further s.35 notice requiring him to attend an interview at the Embassy and, amongst other things, “to give your consent to return to Zimbabwe if requested to do so by an Embassy official”.

[16]On 11th February the Claimant attended the Embassy. He was asked if he wanted to return to Zimbabwe and he replied that he did not. According to paragraph 17 of the Claimant’s witness statement, he explained that he did not want to go, but if they forced him, he would.

[17]On 21st April 2015 the Claimant was charged with an offence under section 35 of the 2004 Act. The particulars of the offence were that the Claimant had failed to consent to return to Zimbabwe when requested by an Embassy official. On the Claimant’s account, he was advised to plead guilty; and on 22nd May 2015 he did so, and was sentenced to 9 months’ imprisonment. During the currency of the Claimant’s sentence, he was no longer detained under immigration powers, and he was transferred to prison.

[18]On 13th August 2015 the Defendant wrote to the Claimant asking whether he could confirm that he would comply in attending the Zimbabwean Embassy for the purpose of a face-to-face interview. On 21st August the Claimant’s case was discussed at the “section 35 Tasking Board meeting” and the “prosecutions’ team” confirmed that they would prosecute “as many times as it takes before he complies”.

[19]On 6th September 2015 the custodial part of the Claimant’s sentence came to an end, and he was re-detained under immigration powers. The Claimant was made subject to licence conditions which required him to obtain the prior permission of the Probation service for any address at which he might live, until 6th September 2016.

[20]On 12th November 2015 the Claimant applied for a bail address pursuant to section 4(1)(c) of the Immigration and Asylum Act 1999.

[21]On 27th November 2015 the Claimant submitted a request to see “on-site immigration”. This stated, “I would like to give my consent to go to the Embassy”. On 8th December, however, the Claimant’s solicitors wrote to explain that their client was willing to go to the Embassy, although this would be pointless because he had always made clear that he did not wish to return to Zimbabwe.

[22]On 11th January 2016 the Defendant served on the Claimant a further notice under section 35 of the 2004 Act. The notice required him to attend the Zimbabwean Embassy for interview on 20th January, and amongst other things, “agree to return to Zimbabwe if asked as part of the requirements for re-documentation, by Embassy official”. The legality of this request was then challenged by the Claimant’s solicitors.

[23]On 19th January 2016 the Claim Form in these judicial review proceedings was filed. On the same day Walker J made an Order that, pending determination of the application to apply for judicial review or further Order, the Defendant could not take the Claimant to the Zimbabwean Embassy or in any other way to arrange for him to be interviewed by anyone acting for that Government. The Claimant relies on Walker J’s “initial impression” when deciding the issue of interim relief, but he clearly did have the benefit of detailed argument on the point.

[24]Following the handing down by Garnham J of his judgment in R (oao Babbage) v SSHD

[2016] EWHC 148 (Admin)

on 1st February 2016, the Claimant was given permission to amend his grounds. The Defendant did not file an Acknowledgement of Service or lodge Summary Grounds of Defence.

[25]On 16th March 2016 a meeting was held between the Defendant’s “Migration Delivery Officers” and officials from the Zimbabwean Government’s Ministry of Foreign Affairs. I will address the discussions at that meeting, and their upshot, below.

[26]On 21st March 2016 Ms Sara Cockerill QC sitting as a Deputy Judge granted permission. She directed that the Defendant, if she wished to contest the claim, must file and serve(i) an Acknowledgement of Service within 10 days, and

(ii) Detailed Grounds and any written evidence within 35 days.

[27]The Defendant did not comply with this Order. On 27th April she made a without notice application for an extension of time to file her Detailed Grounds. The point has fairly been made that the Defendant made no application for further time to file her Acknowledgement of Service or any written evidence, and did not provide either.

[28]On 30th March 2016 the Defendant accepted that the Claimant was entitled to accommodation under section 4(1)(c) of the 1999 Act. However, no address was identified, making any successful application to the F-tT for bail practically unattainable. On 4th May 2016 the Claimant’s solicitors applied for interim relief, permission to amend the Grounds to challenge the failure to provide a section 4 bail address, and directions leading to a bail hearing.

[29]On 16th May 2016 Sir Stephen Silber ordered that:(i) the Defendant provide, by 17th May 2016, a section 4 bail address or, if that was not possible, a witness statement explaining why that had not been possible and when she expected to be able to obtain such an address.

(ii) in the event that bail was contested, a Skeleton Argument be filed at least two working days before the expedited hearing (then listed for 23rd May, but later put back to 26th May).

[30]On 18th May 2016 the Defendant filed an Acknowledgment of Service and Detailed Grounds of Defence.

[31]On 19th May 2016 the Claimant’s solicitors wrote to the GLD itemising various breaches of court orders, the CPR and the Defendant’s duty of candour. I confine myself to listing those matters where in my view the Claimant’s criticisms are clearly made out:(i) the Defendant’s delay in relation to the Acknowledgement of Service, written evidence, and Detailed Grounds of Defence. (Written evidence has since been filed by the Defendant)

(ii) the Defendant’s failure to provide any disclosure, in particular the detention reviews and related materials, pursuant to the CPR and/or its duty of candour in judicial review proceedings.

(iii) The Defendant’s failure to comply with the Order of Sir Stephen Silber.

[32]On 24th May 2016 the Defendant indicated that she would release the Claimant in principle, but did not say when. The Defendant filed a witness statement from Asma Nazir which failed to comply with the Order of Sir Stephen Silber in relation to the length of time it would take to find a section 4 bail address.

[33]On 25th May 2016, with no prior notice to the Claimant’s representatives, the Defendant informed the Claimant that he would be released immediately. The Claimant furnished the address of a friend’s father, not realising that the latter had said that the Claimant could not stay with him. This information was transmitted by the Claimant’s solicitors to the Defendant. Regrettably, it was not acted upon because the Defendant issued paperwork releasing the Claimant without specifying any address. An internal file note records, “we had to release today as he had a hearing tomorrow”.

[34]There then followed a flurry of email activity between counsel and the court. On 26th May 2016, with the hearing having been put back to 2pm, the Claimant’s solicitors managed to reach a cousin of their client who agreed to allow him to stay in his room on a temporary basis, sharing his bed. Given the evidently unsatisfactory nature of this arrangement, the Claimant’s solicitors attempted to find a charity which might accommodate him. The hearing still took place, and no order was made. The Claimant then applied for accommodation under section 4(2) of the 1999 Act, and when this request was refused, an appeal was lodged.

[35]The Defendant provided disclosure in a sporadic fashion from 24th May 2016. On 13th June the Claimant’s solicitors applied for an unless order, and the court listed the hearing for 24th June. On 23rd June the Defendant disclosed a number of FCO emails, which had previously been withheld, and a witness statement from Rachel De Souza indicating that the Defendant was still looking for and/or collating documents. On 24th June the Defendant applied for an extension of time to file and serve its evidence. On the same day Lang J granted the extension of time sought by the Defendant and ordered that she pay the costs of the application. Directions were made for outstanding disclosure and Skeleton Arguments. This disclosure was provided on 27th and 28th June.

[36]On 28th June the F-tT allowed the Claimant’s appeal against the Defendant’s refusal to provide him with accommodation. I understand that it still has not been provided. The Claimant remains reliant on his cousin’s bed and charity.

[37]The Skeleton Argument prepared by Ms Julie Anderson and Mr Jack Anderson on behalf of the Defendant did not deign to address their client’s procedural failings in the litigation. I would characterise the latter as regrettable and the former as complacent. Insofar as this Skeleton Argument attempts, as it does in places, to occupy the moral high ground, I must record my considered view that it is aiming at the wrong place. I am not intending to encompass within this criticism anything that relates to the Defendant’s handling of the Claimant’s section 4 application. It is obvious that a department with limited resources will have to juggle its priorities. At the time he was seeking exceptional state support, as indeed remains the position, the Claimant was an “appeal rights exhausted” foreign national deportee who should have left the UK long ago. For him, too, there is no moral high ground to occupy.

THE EVIDENCE BEFORE ME

[38]The Claimant relies on his four witness statements and a witness statement from his instructing solicitor, Ms Kate Newman. The Defendant has filed evidence from Asma Nazir and Rachel De Souza. Ultimately, however, this case will turn principally on the mass of documentary material located within a number of trial bundles. In my judgment, there is far too much of it, and cases of this sort need not be weighed down by such a plethora.

[39]At the start of the hearing Mr Dunlop sought permission to rely on a second witness statement of Kate Newman dated 29th June 2016. I ruled that it contained evidence which was capable of being relevant to the issue of aggravation of any damages I might award, but was otherwise of no assistance. Given that this evidence could not assist me at this stage, I ordered that the Claimant should have permission to rely on this evidence at any quantum hearing, and that the Defendant should have permission to file any evidence in reply within 28 days of the handing down of this liability judgment.

THE EVIDENCE RELATING TO ENFORCED RETURNS TO ZIMBABWE

[40]According to paragraph 12 of the Claimant’s witness statement dated 20th January 2016, on 12th February 2015 (he is mistaken about the date: it was in fact 11th February) he was taken by immigration officers to the Zimbabwean Embassy and had a meeting with Mr Moyo. Paragraphs 17 and 19 state:

“I remember him asking me if I wanted to return to Zimbabwe. I don’t remember him showing me a disclaimer to sign. I just remember him asking me if I wanted to go back. I said that I didn’t want to go back but if they forced me I would. … I then remember Mr Moyo explaining to Mr Barraclough [an immigration officer] that I could not go back if I was not willing to go voluntarily and was looking into an appeal. Mr Barraclough then explained that I was appeal rights exhausted. But Mr Moyo explained again that it was a voluntary returns system.”

[41]This evidence has not been contradicted by the Defendant, and (for example) no witness statement from Mr Barraclough has been served. In my judgment, the Claimant’s evidence is entirely plausible and I accept it. His evidence is also consistent with other available material.

[42]Mr Dunlop referred me to the decision of Singh J in R (oao Mhlanga) v SSHD

[2012] EWHC 1587 (Admin)

where the court received evidence from Ms Anne Scruton, a member of the UK Border Agency’s Country Returns Operations and Strategy Team. Singh J summarised the state of the evidence before him. The position then was that the Defendant was unable to remove persons to Zimbabwe who did not have valid passports without their consent. This was because the Zimbabwean authorities would not agree to issues ETDs to persons returning involuntarily. The authorities had agreed to participate in a documentary pilot scheme, but “this pilot scheme is contingent upon the ongoing co-operation of the Zimbabwean government, with discussions due to be resumed in early December [2012]”.

[43]According to the witness statement of Rachel De Souza, who is the Migration Delivery Officer for Southern and Central Africa, at present – and indeed since Restrictive Measures were installed in 2002 – Zimbabwe requires the returnee’s consent before issuing an ETD in relation to enforced returns. There was some thawing in the relationship between the UK and Zimbabwe in February 2016, and on 16th March a high-level meeting took place at the British Embassy in Harare. Ms De Souza describes that meeting as “more positive than expected”. There was a discussion about the Defendant’s list of 20 undocumented returnees, including the Claimant, and scans of their expired passports were provided. On 12th May the Ministry of Foreign Affairs was content to confirm that 18 of the 20 were Zimbabweans, but the Claimant’s name was not included. There may have been an issuing with spelling. The current position is that the Defendant has put the Claimant’s case on hold for the time being, and that the 18 names remain with the Deputy Foreign Minister for his approval of the production of ETDs. Approval, if given, will be a political decision for Zimbabwe and no time-frame can be given.

THE CLAIMANT’S RISK OF ABSCONDING/REOFFENDING

[44]Mr Dunlop referred to a number of documents bearing on the Claimant’s absconding and/or reoffending risk. He was critical of the Defendant’s approach to this question.

[45]On 31st May 2013 the Claimant was assessed by NOMS as being at low risk of causing serious harm and at a low risk of reconviction. On the “Offender Group Reconviction Scale”, the risk of reconviction in the first and second years was 4% and 8% respectively. I interpret these as being cumulative scores.

[46]In the Detention Review dated 3rd June 2013, the HEO/Case Owner concluded:

“[the Claimant] has been convicted of serious offences and, in the absence of a completed NOMs assessment, on this basis has been Home Office assessed as a risk of harm and of reoffending and a high risk of absconding, he has no fixed release address, he is liable to deportation.”

Unfortunately, the adjective “medium” has been missed out before “risk of harm”. Given other parts of this review, I can notionally insert it. This assessment was agreed by the Case Owner’s senior. I infer that the NOMS assessment dated 31st May 2013 had not been made available to them.

[47]On 28th June 2013 the Case Owner within the Defendant’s Criminal Casework Directorate recommended that he be released to section 4 accommodation, on the following basis:

“In light of removal to Zimbabwe is not currently enforced and there will be positive trace of his movement from section 4 address and from his medical record as he is receiving medication for treatment of HIV I therefore propose temporary release of subject under rigorous contact management.”

This recommendation was not accepted by the Authorising Officer, an Assistant Director. Her or his conclusion was as follows:

“Based on the presumption to release [in Chapter 55 of the EIG], I have considered whether the continued detention of [the Claimant] is justified. [The Claimant] is considered to pose a low risk of harm to the public and a low risk of re-offending by his Offender Manager. The case owner has assessed him as posing a risk of absconding, however on the basis that he is suffering from HIV and receiving treatment for this in the UK, it seems likely that his risk is likely to be low. Therefore, on the basis of the seriousness of [the Claimant’s] offence, it is proportionate to maintain detention for a further 28 days, however if the asylum decision is not reviewed urgently we should consider release before the end of the review period.”

I accept Mr Dunlop’s submission that the Assistant Director’s reasoning is opaque. The use of the conjunction “therefore” is inapt, and no attempt appears to have been made to balance the seriousness of the Claimant’s conviction against the (low) absconding and reoffending risk. Instead, a decision was taken to temporise, on the footing that the asylum decision might be reviewed. In fact, it was not, and there is no evidence that any consideration was given to the possibility of release before the 28 days expired.

[48]On 25th July the Reviewing Officer concluded that the risk of absconding was “medium” (on my interpretation of the documents, this was the Case Owner’s assessment on 28th June, although – as we have seen – it was not the Assistant Director’s) and the asylum claim was suffering a lack of progress. In short:

“… I find at this stage it is proportionate to consider whether this case can be managed on a non-detained basis. Overall presumption in favour of release is outweighed by the risks indicated above and it has been found proportionate to maintain detention whilst the above action is considered. Case owner please attempt to secure NASS accommodation and complete a release referral.”

[49]The Case Owner did complete a release referral which was emailed to the Assistant Director for his initial consideration. However, “in view of the progress in Asylum Team and a case owner was appointed on 2nd August 2013, [Assistant Director] advised that release consideration be put on hold”. Accordingly, on 21st August 2013 the HEO Team Leader decided that it was proportionate to maintain detention “whilst the above action is considered”. I draw the inference that between 5th May and 2nd August 2013 the Claimant’s case was in limbo because no Case Owner had been appointed to deal with it.

[50]It is unnecessary to refer to all the Detention Reviews, and I will confine my subsequent explicit examination to the following limited number.

[51]On 9th January 2014, which was after the Defendant’s deportation order had been served on the Claimant, the Case Owner noted that the Claimant had refused to comply with the ETD process – “on 28th November 2012 at a surgery [the Claimant] inform [sic] an officer that he would be fighting deport and that he does not want to go home”. S/he recommended that there were substantial grounds for believing that the Claimant would not surrender to custody if he were released into the community. The Assistant Director’s view is illuminating:

“[The Claimant] is considered to pose a low risk of harm to the public and of reoffending by his Offender Manager. However, he is assessed as posing a high risk of absconding having failed to leave the UK after his application for indefinite leave to remain was refused on appeal. It is noted that his case management review is scheduled for February 2014, his hearing date has not yet been scheduled. There is a suggestion that his health is deteriorating as a result of his HIV. The case owner should obtain up to date medical information. However, it seems unlikely that removal will take place within a reasonable time scale, considering his ill health and low risk of harm and reoffending it is becoming more difficult to justify ongoing detention. Therefore, although I authorise detention for a further 28 days, I recommend that a release referral should be drafted once suitable release arrangements have been put in place.”

Thus, the Assistant Director expressly recognised that removal within a reasonable time was unlikely. The basis on which the absconding risk could now be classed as “high” in the first paragraph of the above citation is unclear, nor is it consistent with the third paragraph. The appeals referred to took place in 2005 and 2006, and previous officials looking at the Claimant’s case had not drawn the conclusion that he has constituted a high risk since then. Presumably, it is not the Defendant’s position that every unsuccessful appellant who refuses to leave the country constitutes a high absconding risk. In any event, it seems clear that the Assistant Director was leaning towards release, provided that suitable arrangements were put in place.

[52]In subsequent detention reviews conducted on a monthly basis throughout 2014, it is clear that the decisions to maintain the Claimant’s detention were taken on the footing that this was necessary “to secure compliance with the documentation process”, in particular the grant of an ETD. It is also clear that the Defendant considered that the impasse might be broken by prosecuting the Claimant under section 35 of the 2004 Act. It was for this reason, in particular, that removal was considered to be “realistic”. Throughout this period the risk of absconding was assessed as “medium”.

[53]On 27th January 2015 the reviewing officer assessed the absconding risk as “high”, although I agree with Mr Dunlop that it is unclear why. The fact that he was subject to a deportation order and was “appeal rights exhausted” is a relevant factor, but in my judgment I cannot, at least without more, justify the attribution of a high absconding risk. The reviewing officer noted that the Claimant had partially completed the documentation process, and that if he signed the disclaimer an ETD interview would be arranged. In such circumstances, removal within a reasonable timescale “remains realistic”. The Assistant Director was more robust:

“Whilst I applaud [the Claimant’s] efforts to legitimise his stay in the UK, when served with a notice of removal he refused, once ARE, to go, staying on and committing crimes in the UK. This shows a total disregard for authority and is indicative of a person who will unlikely comply with any reporting condition asked of him, therefore presenting a significant risk of absconding. [The Claimant] has committed a very serious offence that, if repeated, would inevitably bring harm to a member of the UK public.”

[54]In my judgment, this is a hyperbolic assessment. The “notice of removal” referred to was served as long ago as February 2006. Thereafter, the Claimant obeyed his reporting conditions, although he committed serious crimes in 2011. In 2013, he was assessed as being a low reoffending risk, and previous detention reviews characterised the absconding risk as “medium”. I note that throughout the rest of 2015, and the relevant part of 2016, the Claimant’s absconding risk apparently remained “high”.

[55]On 17th February 2016, which was after interim relief was granted by Walker J, the Authorising Officer opined:

“I note the position of this case. ETD remains the barrier to removal and a JR has been received with regard to attending the ZBH and taking forward section 35 prosecution. The case owner needs to establish a timeframe with the JR and ensure CC Investigation Team provide an update. Onward detention will need to be reviewed following the next 28 days to ensure that the case is being progressed.”

By this stage, it was not merely the case that ETD created a barrier to removal, but this court had ordered that the Defendant could take no steps to enforce compliance by the Claimant in the ETD process.

[56]In my judgment, these detention reviews are relevant in two separate respects. First, they throw light on Hardial Singh principles (iii) and (iv) (more fully discussed below), to the extent that concerns were being expressed about the delays and inferences may be drawn about how realistic was deportation within a reasonable time. I will be bearing this documentation in mind when I come to address these issues. Secondly, they are relevant to the absconding risk, which always falls to be placed in the balance against other considerations. In my judgment, there was no proper basis for concluding that the absconding risk in the Claimant’s case was “high”. For the reasons given below, I would assess it as being “medium”. Overall, I consider that some of the Defendant’s reasoning as betrayed in this documentation, although no doubt given in good faith, is scanty, circular and exaggerated.

FORMULATION OF THE ISSUES

[57]As previously stated, the Claimant seeks declaratory relief. In his Claim Form, the relief is sought in these alternative formulations:(i) that the Defendant may not lawfully require the Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agrees to return voluntarily; and/or

(ii) the Claimant may not be prosecuted, under section 35(3) of the 2004 Act, if he tells Zimbabwean officials that he does not agree to return voluntarily. The Claimant also seeks a declaration that his immigration detention is, and has been from the outset, unlawful. In my judgment, this issue may better be addressed under the rubric of the claim for damages.

[58]The claim for damages is brought at common law, in the tort of false imprisonment, and under

Article 5 of the Convention

. The parties have agreed that at this stage I should determine issues of liability and whether the Claimant can, at least in principle, establish a claim for substantial rather than nominal damages. Issues of quantum may be determined subsequently.

[59]I should say a little more about the claims for declaratory relief. In their Skeleton Arguments both parties’ counsel have allowed themselves more than an acceptable modicum of rhetoric. Mr Dunlop characterises the issue as being whether his client should be prosecuted for telling the truth. Ms Anderson says that the issue is whether the claim for declaratory relief aims in the circumstances “to stifle the use of section 35”. I would prefer the adoption of formulations which throw more light than heat.

[60]I have serious reservations about a claim for declaratory relief in these circumstances which is designed to clarify the criminal law. One objection is that the DPP is not a party. Another is that the courts are slow to advise those responsible for bringing criminal prosecutions. However, if the focus is limited to the Defendant’s notice given on 11th January 2016, and the Claimant’s first declaration, the substantive issue is properly addressed. I do not understand Ms Anderson to be contending that this court should not in the exercise of its discretion consider the lawfulness of that notice. In any event, there is an obvious connection between the legality of the Defendant’s position on section 35 and the claim for damages at common law and under section 8 of the Human Rights Act 1998. The nature and extent of that nexus does, however, merit close examination.

THE STATUTORY FRAMEWORK

[61]The parties agree that at all material times the Defendant was not merely empowered to detain the Claimant on account of his status as a “foreign criminal” within the meaning of section 32 of the 2007 Act, but that, once a deportation order was made under section 32(5) on 11th November 2013, the Defendant was required to detain the Claimant “unless in the circumstances the Secretary of State thinks it inappropriate”. Nonetheless, the exercise of this presumptive statutory discretion remains subject to the implied constraints imposed by the common law.

[62]Section 35 of the 2004 Act provides, in material part:

“35 Deportation or removal: cooperation (1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that— (a) the action will or may enable a travel document to be obtained by or for the person, and (b) possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom. (2) In particular, the Secretary of State may require a person to— (a) provide information or documents to the Secretary of State or to any other person; (b) obtain information or documents; (c) provide biometric information (within the meaning of section 15 of the UK Borders Act 2007), or submit to a process by means of which such information is obtained or recorded; (d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom; (e) cooperate with a process designed to enable determination of an application; (f) complete a form accurately and completely; (g) attend an interview and answer questions accurately and completely; (h) make an appointment. (3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1).”

[63]Section 35(2)(c) originally provided:

“(c) provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye)”

. It was amended by paragraph 5, Schedule 2 of the Immigration Act 2014, with effect from 28th July 2014. Further, section 12 of the Immigration Act 2014 amends the definition of “biometric information” in section 15 of the UK Borders Act 2007, as follows:

“(3) After subsection (1) insert – ‘(1A) For the purposes of section 5 ‘biometric information’ means – (a) information about a person’s external physical characteristics (including in particular fingerprints and features of the iris), and (b) any other information about a person’s physical characteristics specified in an order made by the Secretary of State.” (a) information about a person’s external physical characteristics (including in particular fingerprints and features of the iris), and (b) any other information about a person’s physical characteristics specified in an order made by the Secretary of State.” (c). may specify only information that can be obtained or recorded by an external examination of a person; (d). must not specify information about a person’s DNA.’”

ANALYSIS OF THE CLAIM FOR DECLARATORY RELIEF

[64]Mr Dunlop submitted that section 35 does not permit the Defendant to require the Claimant to say to Embassy officials that he is willing to return when that is not true. In any event, the Claimant has a “reasonable excuse” under section 35(3).

[65]In relation to his first, and primary, submission, Mr Dunlop raised five headline points. First, he contended that it is a well-established principle of statutory construction that a statute imposing a criminal sanction should be strictly construed in favour of the accused, and that a criminal liability may only be predicated on clear and unambiguous language. Secondly, none of the sub-section (2) matters includes a requirement to “agree” or “consent” to return, still less express a willingness to return. Thirdly, and relatedly, section 35(2) contains an exhaustive list of the types of action the Defendant can lawfully require under sub-section (1). Fourthly, even if that is wrong, any further requirement can only arise on a eiusdem generis approach, all the sub-section (2) requirements are procedural in nature, and to insist on agreeing to return is both substantive in nature and compelling a mendacious utterance. Fifthly, there is an important distinction between, on the one hand, refusal to co-operate with a procedural requirement and, on the other hand, refusal to return voluntarily. Not merely is the former less blameworthy, the latter requires the telling of a lie.

[66]There is an evident inter-relationship between many of these submissions. Mr Dunlop would have to accept that if the Defendant’s notice fell within the express terms of section 35(2), his case could not be sustained. His real point, therefore, was that it did not, and that the reach of the sub-section cannot be expanded to cover requirements of this sort.

[67]Mr Dunlop’s alternative submission was that the Claimant has a “reasonable excuse” under sub-section (3) because the law cannot require him to lie, and “the fact that return means likely death is a reasonable excuse not to agree to return”.

[68]Ms Anderson for the Defendant submitted that the offence is created by section 35(1), and not section 35(2). Subsection (1) refers to “specified action”, not “the specified action” or “the action specified in subsection (2) below”. Accordingly, “specified action” is any action which the Secretary of State specifies, providing that she thinks that it might achieve either or both of the objectives set forth in sub-paragraphs (a) and (b), which is not in issue. It follows that the Defendant does not need to show that the case falls within section 35(2), because the core provision is section 35(1), and in any event subsection (2) opens with the adverbial phrase, “in particular”: it is not exhaustive. In the alternative, Ms Anderson submitted that the instant case does fall within section 35(2)(d). In the further alternative, she submitted that I should construe section 35(2)(d) in a manner which serves to accommodate action which is close in nature and character to its express language.

[69]Counsel referred me to two authorities. In R (oao FR (Iran)) v SSHD

[2009] EWHC 2094 (Admin)

Foskett J touched on section 35 of the 2004 Act but in the context of a case where the Claimant, having refused to complete a travel document, was clearly in breach of section 35(2)(d) and (f). In R (oao Babbage) v SSHD

[2016] EWHC 148 (Admin)

Garnham J said this, at paragraph 75:

“In any event, I have the gravest doubt whether a breach of section 35 could be made out against the Claimant. The Claimant was being asked to sign a document indicating that he intended to leave the United Kingdom. If, in truth, he did not intend to leave the United Kingdom, he could not properly be required to sign the disclaimer; or, put another way, he would have a reasonable excuse for not doing so.”

Babbage was another Zimbabwean unlawful detention case where the Defendant was confronted by the same practical difficulty, namely the attitude of the authorities to enforced returnees. However, the section 35 point was not argued, and I must respectfully point out that Garnham J’s reasoning in relation to subsection (3) cannot be reconciled with the decision of the Court of Appeal in R v Tabnak

[2007] EWCA Crim 380

where, at paragraph 20 of his judgment, Lord Phillips CJ stated, “as a matter of law, reasons why a defendant is unwilling to comply with a section 35 requirement with which he is perfectly able to comply cannot constitute a reasonable excuse for non-compliance”. Put another way, section 35(3) cannot be concerned with a person’s motives and subjective wishes, however strongly held. Thus, if the case under consideration falls within section 35(2), and the Secretary of State could properly demand of someone in this Claimant’s position that he must answer an official’s question in a certain way, a defendant cannot be heard to say that he does not want to.

[70]My point of departure to this issue of statutory construction is to mention the familiar approach to criminal statutes recently expounded (or, rather, re-expounded) by the Court of Appeal in R v Dowds

[2012] 1 WLR 2576

. In that case, Hughes LJ, as he was then, referred to the canon of statutory construction usually labelled the principle against doubtful criminality or doubtful penalisation, and that if a statute is reasonably capable of bearing two interpretations, that more favourable to an accused must be adopted. However, Hughes LJ also made clear that this is a canon of last resort, and that other principles of interpretation may be in play, including “the clear mischief which the Act was designed to remedy” (paragraph 37). Hughes LJ refrained from offering a definitive analysis of the position in that case, because it was unnecessary.

[71]I am content to approach the exercise on the traditional basis that primacy must be given to the statutory language against the backdrop of the purposes, policies and objects of the subsection. Those last matters are to be found in sub-paragraphs (a) and (b) of section 35(1). In the event of any ambiguity, but only as a last resort, the principle against doubtful criminality will be applied.

[72]A helpful way of framing the issue, it seems to me, is to ask whether “specified action” means “action which the Secretary of State reasonably thinks will or may achieve the objects and purposes of sub-paragraphs (a) and (b) of subsection (1)”, or whether it means, “such action as may be specified by the Secretary of State, and which in her view may achieve these objects and purposes, subject to it being action of a nature and type set out in sub-section (2)”. I would reject a formulation which holds that “specified action” means “such action as is specified in sub-section (2)”, because on that basis there would be two specified actions: first, that specified in subsection (2); and, secondly, that specified by the Secretary of State. Further, section 35(3) links the requirement, and by implication the specified action, to subsection (1). To my mind, the “specified action” mentioned in subsection (1) must be a reference to the action the Secretary of State requires the individual to take. Accordingly, I agree with Ms Anderson that subsection (1) does not provide, “the specified action” or “the action as specified in sub-section (2) below”. Having said that, it seems to me that she was seeking to knock down a straw man, because Mr Dunlop’s third submission (on my numbering) is premised on her approach.

[73]Thus, the real point is whether the term “specified action” is solely constrained by sub-paragraphs (a) and (b) of subsection (1), or whether subsection (2) supplies an additional layer of constraint. On this former approach, “in particular” means “by way of example” or something synonymous with “especially” (one of its dictionary definitions). On this latter approach, “in particular” means “specifically” (another of its dictionary definitions).

[74]Ms Anderson submitted that “in particular” should bear its natural and ordinary meaning, but in my view that submission does not assist. There are two natural and ordinary meanings of the term. Similar problems arise with prepositions such as “including”. In my judgment, the real question which always arises in this sort of case is as to how the term at issue should be construed in its particular context.

[75]An examination of the subsection (2) categories throws light on this exercise. Some of these are broad (e.g. sub-paragraph (b), “obtain information and documents”), and would be open to misuse without subsection (1); others are much narrower and more specific. The draftsperson has not included a catch-all category, “such other action as the Secretary of State may reasonably require, in order to fulfil the objects of subsection (1)”. In my judgment, subsection (2) has every appearance of being an attempt by Parliament to lay down a list of the types of action which the Secretary of State could properly require to be undertaken, and moreover that this list was intended to be comprehensive. The inference I draw, approaching the exercise of statutory construction on an objective and traditional basis, is that Parliament intended to cover every angle and all possibilities.

[76]Parliament has made clear that the Secretary of State’s requirements must be intended, at least in her opinion, to achieve one or both of two stated purposes. Had subsection (2) not been enacted, the concern would have been that these purposes are simply too wide and potentially all-embracing in the context of a criminal statute. Thus, Parliament has seen fit to introduce a further layer of regulation, namely the itemisation of categories into which the Secretary of State’s requirements must fall. Not merely does the enactment of subsection (2) cut across the submission that it was unnecessary, because subsection (1) would have been sufficient on its own, its presence lends very considerable support to Mr Dunlop’s argument that one way or another, it must be fulfilled. If subsection (2) were merely indicative or exemplary, such that it is sufficient for the ingredients of a criminal offence to be made out that the case may be just accommodated within the broad net of subsection (1), the second layer of regulation I have mentioned would be in danger of being undermined.

[77]Further, I accept Mr Dunlop’s submission that the 2014 amendments to sub-paragraph (c) support his approach to section 35(2) being exhaustive and not illustrative because the type of requirements were incrementally broadened, subject to strict limitations. Not merely would these amendments have been unnecessary on the Defendant’s analysis of these provisions, they tend to rebut the proposition that “in particular” introduces a series of illustrations. I appreciate that amendments are sometimes introduced on an avoidance of doubt basis, but in this context more dubiety is created (from the Defendant’s perspective) than benefit, if the proposition being tested is the correctness of Ms Anderson’s submission. Indeed, on her primary argument, the supremacy of section 35(1), the Secretary of State could lawfully require an individual to provide a sample of DNA notwithstanding that the recent amendments expressly prohibit this.

[78]In my judgment, the instant case cannot be brought within sub-paragraph (d), “make or consent to or co-operate with the making of, an application [etc.]”. The Claimant did not oppose the making of an application for an ETD (on these facts, it was made by the Defendant on his behalf), and he participated in it to the extent required by agreeing to be interviewed by a Zimbabwean official. At the moment his interview started, he was consenting to the application. The Defendant’s real complaint is that he did not say at interview that he was willing to return to Zimbabwe. The Claimant’s actions did not amount to refusing to give consent to the application, particularly in circumstances where the requirement in sub-paragraph (g) is to attend an interview and “answer questions accurately and completely”. The Claimant would not be answering the Zimbabwean official’s question accurately if he had said that he was willing to return there. Thus, sub-paragraph (g), which precisely fits the circumstances of this case and the Defendant’s real complaint, has been complied with by the Claimant. It would be anomalous, in my view, if an individual who is wholly compliant with one provision could be said to be non-compliant with another, in circumstances where the first provision achieves this perfect fit. Put another way, if there were any doubt about the meaning of sub-paragraph (d), (g) is capable of throwing light on the correct construction of the verb “consent to” in that sub-paragraph.

[79]Ms Anderson’s final alternative submission was that the instant case is sufficiently proximate to sub-paragraph (d) that it may be accommodated within it on standard principles of statutory construction. Here, it is necessary to identify the relevant principle. Mr Dunlop mentioned eiusdem generis, only to reject its application to this subsection; but in my view it has no conceivable application in any event: there is no relevant genus. If anything, the correct principle is noscitur a sociis (“it is known by its friends”), mentioned by me in the course of oral argument and gratefully accepted by Ms Anderson as a potential lifeline.

[80]The difficulty with this submission is that, if Ms Anderson needs it, we have reached the stage in the analysis that subsection (1) is governed by subsection (2), that the latter makes provision for an exhaustive list, and that the instant case cannot be located within that list. The subsection (2) categories are disparate in nature, and the notional “friends” are, in my view, simply too heterogeneous, to permit the application of a principle of this type, particularly in a criminal statute. In any event, this principle of statutory construction is usually deployed to govern the meaning of a particular word or phrase, enabling the court to broaden or narrow it according to the context in which it is found (see, for example, Peart v Stewart

[1983] 2 AC 109

). My textual analysis of sub-paragraphs (d) and (g) must lead to the conclusion that the meaning of “consent to” cannot be expanded, on any putative kindred basis, to suit Ms Anderson’s forensic needs.

[81]Parliament could, if it had wanted to, have introduced a specific category of requirement which would cater for the instant case, even if that requirement compelled the individual to lie. I see the force of Ms Anderson’s submission that an individual served with a deportation order has no choice in the matter; he is required to leave the United Kingdom (and, I would add, in remaining here beyond his limited leave he commits a continuing offence under section 24(1)(b)(i) of the Immigration Act 1971), and his personal wishes are irrelevant. However, these matters are all too remote from the scope and reach of section 35 of the 2004 Act, and cannot guide its true construction.

[82]I would also point out that a stipulation which in substance required an individual to lie to an embassy or consular official would have to be covered by clear statutory wording. But if there were a further sub-paragraph which read something along the lines of, “if asked by an official whether you are willing to return, you must answer in the affirmative”, sub-paragraph (g) would have to be dis-applied in relation to that part of the interview alone. This would entail a form of verbal contortion which would likely confound the most adept of Parliamentary draft-persons.

[83]Finally, I should touch on Ms Anderson’s arguments from analogy based on the Road Traffic Act 1988. A person suspected of drink-driving must comply with the constable’s requirement to supply a sample of breath or blood. It is an offence if he fails or refuses to do so. He cannot be heard to say, either in the context of the offence, or the defence (reasonable excuse) that he does not wish to comply. This is because the statute has made it clear that he must comply. The analogy is incomplete.

[84]Accordingly, and substantially for the reasons advanced by Mr Dunlop, I would hold that the Defendant may not lawfully require the Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agrees to return voluntarily.

[85]This holding is not dispositive of the claim for false imprisonment, but it bears upon it. The extent to which it does so will require careful examination. THE CLAIM AT COMMON LAW: FALSE IMPRISONMENT Relevant Legal Principles

THE CLAIM AT COMMON LAW: FALSE IMPRISONMENT

[86]Recently, I reviewed relevant Court of Appeal, House of Lords and Supreme Court authority in paragraphs 172-191 of my judgment in AXD v Home Office

[2016] EWHC 1133 (QB)

. I also covered relevant Home Office policy and guidance. I am tempted to say that this review is comprehensive, and that – given that I have not changed my mind in the light of any submissions advanced by Mr Dunlop and Ms Anderson – it is unnecessary to do more than adopt that judgment by reference. However, in deference to counsels’ submissions, I propose to focus on a few core matters. These may be read in conjunction with my previous analysis.

[87]The four Hardial Singh principles were listed by Lord Dyson JSC at paragraph 22 of his judgment in R (Lumba) v SSHD

[2012] 1 AC 245

. These are:(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

(ii) the deportee may only be detained for a period that is reasonable in all the circumstances.

(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.

(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

[88]In my view, these principles are conceptually discrete, but may well overlap in their practical application (in particular, principles (iii) and (iv), although Mr Dunlop has referred me to Court of Appeal authority which might suggest that the overlap is between (ii) and (iii)) depending on the facts and circumstances of individual cases. I would add that these are principles not rules, and are also no more, and no less, than expressions of the application of standard principles of public law, in particular Wednesbury and Padfield, to this domain.

[89]In Lumba, at paragraphs 122-128 of his judgment, Lord Dyson also addressed the issue of the extent to which non co-operation with return may impact on the absconding risk. Lord Dyson suggested a cautionary approach against drawing inferences adverse to the detainee in every case. He rejected the proposition that a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful, favouring his own analysis in R (oao I) v SSHD [2003] INLR 196, paragraphs 50-54, and disfavouring the contrary approach articulated by Toulson LJ in R (oao A) v SSHD

[2007] EWCA Civ 804

, at paragraph 54. At paragraph 128 Lord Dyson said this:

“What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a “trump card” which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at paragraph 51 of my judgment in I’s case, ‘the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation’. If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon LJ in I’s case and Keene LJ in A’s case and I agree with them.”

[90]Mr Dunlop submitted on the back of paragraph 122 of Lumba that the refusal to return voluntarily should always carry limited weight. But that is not what Lord Dyson has said. In a case where a risk of absconding cannot be inferred from the refusal, that refusal – without more – must carry little weight. In a case where adverse inferences may be drawn, the weight to be given to the risk of absconding, as distinct from the refusal to return voluntarily simpliciter, must depend on all the circumstances. And the court must in any event exercise caution before such inferences are drawn.

[91]In any event, I will need, aside from the question of inferences, to consider whether the instant case is one of deliberate obstruction rather than of refusal to return voluntarily, as Ms Anderson submitted that it was.

[92]The absconding risk is not decisive either way. The authorities show, and I do not understand this to be disputed, that the higher the absconding risk, the easier it may be for the Defendant to justify detention and its length of time. This is a balancing exercise. However, the saliency of the absconding risk diminishes, in my view, as one notionally proceeds, down a pathway of judicial analysis, from Hardial Singh (ii) to (iii) to (iv); by which I mean that it is more relevant to (ii) than it is to (iv). Further, the absence of an absconding risk does not of itself render detention unlawful: see paragraph 53 of Lord Dyson in Lumba.

[93]The ascertainment of breach of any of the Hardial Singh principles warrants a careful and objective judicial assessment (see paragraph 33 of the judgment of Lord Thomas CJ in Fardous v SSHD

[2015] EWCA Civ 931

), deferring to some extent to the views of the Defendant’s officials in their areas of expertise, rather than applying any strict burden and standard of proof (see paragraph 45 of the judgment of Macfarlane LJ in R (JS (Sudan)) v SSHD

[2013] EWCA Civ 1378

). In a case of unaccountable delay, which requires explanation, inferences adverse to the Defendant may be drawn from her failure to file explanatory evidence; but there is no requirement to account for every single day or week of detention (see JS (Sudan), paragraph 60). Although there is no burden of proof, there is a “burden of persuasion” inasmuch as it is for the Secretary of State to justify compliance with the Hardial Singh principles (see R (oao ZA (Iraq)) v SSHD

[2015] EWCA Civ 168

, paragraph 17; JS (Sudan), paragraph 45).

[94]To my mind, Hardial Singh (iii) lies at the heart of this case, although Mr Dunlop’s submissions were broader. Ms Anderson placed particular reliance on the judgment of Richards LJ in R (oao Mohammed Muqtaar) v SSHD

[2012] EWCA Civ 1270

, where he said this at paragraph 36:

“… At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR’s final decision would be such as to prevent the appellant’s removal. I stress “apparent”, because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.”

At paragraph 37 Richards LJ emphasised that, although the Secretary of State was not required to be in a position to specify or predict the date by which removal could reasonably be expected to occur, the test was: “there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors” (citing from paragraph 65 of his own judgment in R (A), where Toulson LJ had taken the same approach).

[95]Although Ms Anderson is entitled to draw some comfort from paragraph 36 of R (Mohammed Muqtaar), it is important not to overlook the final sentence from the foregoing citation. If removal within a reasonable time is “merely uncertain”, Hardial Singh (iii) will not have been satisfied.

[96]Ms Anderson also submitted, on the basis of the decision of Sales J in R (oao MH) v SSHD

[2009] EWHC 2506 (Admin)

, which was upheld by the Court of Appeal (

[2010] EWCA Civ 1112

), that the test was “some prospect” rather than “sufficient prospect”. However, that submission entailed a misreading of paragraphs 64 and 66 of the judgment of Richards LJ. The final sentence of paragraph 64 makes clear that Richards LJ was continuing to prefer “sufficient prospect” (“what is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case”). At paragraph 66 Richards LJ held that Sales J had not erred in formulating the issues as “some prospect”, because he had clearly considered whether in all the circumstances there was a realistic prospect.

[97]I need to address the two Zimbabwean cases which are directly on point. Both are first instance decisions, so strictly speaking are persuasive only. In Mhlanga, Singh J said this, at paragraphs 25 and 26:

“The claimant’s primary submission was that his detention was unlawful under the third principle in Hardial Singh to which I have referred. In other words it was submitted that the period of detention since October 2006 in this case is already so long that, given the uncertainty as to when, or even if, a return to Zimbabwe will be possible, the Court should now hold that the Secretary of State may no longer lawfully detain this claimant pending deportation. I accept that submission. In view of the factual state of affairs on the evidence before the Court as at 20th December 2011, which I have summarised earlier, I was of the clear view that the Claimant’s detention as unlawful under the third principle in Hardial Singh.”

Singh J did not identify exactly when the Defendant was in breach of Hardial Singh (iii). This was because the case was adjourned in order that settlement negotiations might take place; and ultimately these bore fruit.

[98]In Babbage, the issue for the court was whether, as at the date of the hearing, there was a realistic prospect of returning the Zimbabwean national to his homeland in circumstances where the authorities would only accept voluntary returnees. Garnham J held that there was not, in particular because (see paragraph 95):

“The Zimbabwean authorities’ position has been made clear over a prolonged period: they will not accept the return of those who do not hold a current passport other than from those willing to go back. There is nothing to suggest that stance is likely to change in the foreseeable future. In my judgment, in all the circumstances, it cannot be said that there is any realistic, foreseeable prospect of returning the Claimant to Zimbabwe.”

[99]Garnham J did not have to decide when the Defendant started to be in breach of Hardial Singh (iii) in this case, although the final sentence of paragraph 91 of his judgment, and paragraph 92, rather hint that this was before the date of the hearing. He had grave doubts whether “some vague hope of a change of mind on the part of the Claimant at some unidentified time of the future would be sufficient to justify continued detention” (see paragraph 94). One might add that the position is exactly the same mutatis mutandis as regards the collective mind of the Zimbabwean authorities.

The Rival Contentions

(i) The Rival Contentions

[100]Mr Dunlop submitted that the Defendant was in breach of Hardial Singh(i) because – although he did not give a commencement date – detention cannot be used for the purpose of putting pressure on a detainee to leave voluntarily, and in particular the pursuit of a section 35 prosecution amounted to improper pressure and/or an uncovenanted exercise of the power to detain. In relation to Hardial Singh (iii), his case was that, given that it was always clear that the Zimbabwean authorities would not issue an ETD to someone who was not a voluntary returnee, there never was a sufficient prospect of deportation within a reasonable time. In relation to Hardial Singh (iv), Mr Dunlop submitted that the Defendant clearly failed to progress the Claimant’s case with reasonable expedition and diligence, in five specific respects. These were: (i) the Defendant should have commenced the process of deportation whilst the Claimant was serving his criminal sentence;

(ii) it took over one year for the Defendant to ask the Claimant whether he wished to take advantage of the Facilitated Returns Scheme, and (during that period) four months after the appeal process concluded before making that offer;

(iii) delaying for four months between June and October 2014 (on which date he was interviewed by immigration officers);

(iv) delaying for two further months between October and December 2014; and

(v) dragging her heels throughout the judicial review proceedings which began on 19th January 2016.

[101]Mr Dunlop advanced a number of other submissions in writing, which in my view it is unnecessary to record.

[102]Ms Anderson submitted that the starting point must be that the Claimant was disobeying a deportation order which required him to leave the UK, and that he was in substance and practical reality wilfully obstructing the process of deportation by refusing to facilitate the obtention of an ETD from the Zimbabwean authorities. She reminded me at least twice that I must eschew a personal or subjective approach and be loyal to the Lord Chief Justice’s “careful and objective” criterion. (I must record that I did not need that elementary guidance.) At one stage in her oral argument she submitted that section 35 of the 2004 Act was somewhat of a distraction, and that I should focus on the panoply of considerations which indicated that there was some prospect of removal within a reasonable time. These were: the risk of absconding; the Claimant’s deliberate obstruction; the seriousness of his criminal offending; his clear failure voluntarily to repatriate; and, the fact that the attitude of the Zimbabwean authorities was changing, and that I should not second-guess delicate matters of international and diplomatic relations. Towards the end of her oral argument Ms Anderson, although firmly adhering to all of the foregoing points, appeared to accept that the lawfulness of the Defendant’s position on section 35 of the 2004 Act could be relevant to Hardial Singh (iii).

[103]Ms Anderson advanced other detailed submissions on the application of the Hardial Singh principles to this case, which in my view I need to bear in mind but not specifically record.

Analysis and Conclusions

[104]I have found as a fact that the Claimant presented a medium risk of absconding. At all material times, he was (and is) remaining unlawfully in this country without leave, which expired in 2006; and after February 2014 he was an “appeal rights exhausted” subject of a deportation order requiring him to leave. He has no clear personal ties to the UK, and no fixed address. On the other hand, he complied with the conditions of his temporary admission between 2006 and 2011, and immigration officers have noted his courtesy. His HIV positive status means that he must remain in proximity to known sources of medical assistance. Balancing all these factors, and contrary to some of the views of the Defendant, which are not consistent, he was a medium risk of absconding.

[105]It has been the settled, some would say intransigent, position of the Zimbabwean authorities since 2002 that they will only accept voluntary returnees. Whether that is helpful, or reasonable, or consistent with Zimbabwe’s obligations under international law to accept their own citizens, is nothing to the point; and I make no ruling one way or the other. It was and is part and parcel of this position, as the Defendant well knew, that returnees will be asked if they wish to return; and, indeed, the Claimant was asked. It does not follow that everyone in the Claimant’s position (putting aside his health issues) would not be willing to return, and the Defendant may be entitled to say that the Claimant might have had his own personal reasons for wanting to do so, however unlikely that might seem on paper. It does follow, in my view, that anyone who told the Zimbabwean authorities, in answer to their question, that he was unwilling to return would, in practice, be irremovable. This, on analysis, flows from the stance of the Zimbabwean authorities, and not from that of any returnee. It would be artificial, and incorrect, to hold that the Claimant is simply coming out with a “party line” knowing full well that, were he to utter it, he will or might get what he wants. The reality here is that the Claimant never has been willing to return to Zimbabwe, and that he is not trimming his sails in any way. It is not for me to comment on the morality of the Claimant’s behaviour.

[106]It follows that I must reject Ms Anderson’s submission that the Claimant has been deliberately obstructive. He falls into the category of voluntary refusenik. Examining the disclaimer which the Claimant was asked to sign, he stated that he would now comply with the Zimbabwean ETD application, but that he was not willing to go home to Zimbabwe. The instant case is covered by paragraphs 122-128 of Lumba as applied by Garnham J in Babbage, and I agree with the latter’s analysis.

[107]The question arises whether there was any realistic prospect, during the whole of the period under consideration, of the Zimbabwean authorities changing their policy on this issue. During the hearing there was some speculation about a range of possibilities, including the demise of the Zimbabwean President. That will happen one day, but it goes without saying that the temporal framework is uncertain. It almost goes without saying that when he dies no one, including the Defendant, really has any idea whether Zimbabwe’s policy will change, and when. I have carefully examined Ms De Souza’s evidence. It was not until February 2016 that there was even the remotest prospect of a possible change of political heart. The court has been informed that the Defendant is awaiting a political decision in relation to 18 cases, not including this Claimant’s, which decision may never come. I entirely agree with Garnham J, who admittedly did not have the benefit of this evidence of such limited value, that there was no realistic prospect of a change of policy on the part of the Zimbabweans during any part of the period germane to these proceedings. This, to me, seems apparent; and in my view the Defendant cannot cling to threads of speculation and hope.

[108]The Detention Reviews make clear that there were “no enforced returns to Zimbabwe”. The question arises as to when the Defendant was aware, or ought to have been aware (had, for example, she not been acting in breach of Hardial Singh (iv)) that the Claimant was not a voluntary returnee in the precise sense that he would not answer the Zimbabwean official’s question in a way which would avail the Secretary of State. In my judgment, there is a difference between(i) the Defendant inferring that the Claimant would probably say that he was unwilling (this would apply to all Zimbabwean putative deportees), and

(ii) the Defendant knowing that this Claimant would say that he was unwilling. I am prepared to hold, in the Defendant’s favour, not that the point was pressed by Ms Anderson, that the critical question for present purposes is (ii) and not (i). However, I would also hold that the court must examine not merely what did happen but what ought to have happened had the Defendant acted with reasonable diligence and expedition. Hardial Singh (iv) intersects Hardial Singh

(iii) at this point.

[109]The Claimant’s likely stance vis-à-vis the Zimbabwean authorities was not examined by the Defendant until he was interviewed by immigration officers on 1st October 2014. He told immigration officers that he was not willing to return to Zimbabwe, and at that stage was also unwilling to provide bio-data. On 3rd November 2014 he said that he was “on the fence right now” and “still thinking about it”. On 10th November he refused to provide bio-data. On 15th December he was arrested, and then completed the bio-data form. On 28th January 2015 he signed the disclaimer to which I have already referred. On 11th February he was physically taken to the Zimbabwean Embassy and there he had the exchange with Mr Moyo mentioned under paragraph 40 above.

[110]In my judgment, it was of course crystal-clear on 11th February 2015 that the Claimant was not a voluntary returnee, and applying a probabilistic test to the issue the Defendant knew or ought to have known of this by 28th January 2015, at the latest. I am not prepared to hold that it was reasonable for the Defendant to wait and see what happens at the Embassy, but in the circumstances of this case only 14 days are at issue.

[111]The relevance of my ruling on the section 35 issue enters the equation at this juncture. The Claimant was prosecuted, pleaded guilty, and was imprisoned on 21st April 2015. He remained in prison until 6th September. Putting to one side for the time being difficult questions of whether section 35 could in any event extend the period of reasonable detention, my decision that it cannot be legitimately deployed in these circumstances means that these difficult questions do not arise. Section 35 falls out of account altogether. At best, from the Secretary of State’s perspective, it is theoretically a neutral factor; and it certainly cannot avail her. In practice, to the extent that the Defendant was detaining the Claimant on the basis that he might or could be rendered compliant by the force of section 35, that must be an unlawful consideration.

[112]At the hearing I raised with counsel the point that a combination of the application of two principles might well have the consequence that the Claimant cannot claim damages for false imprisonment in relation to the period he was serving the sentence of the criminal court. Those principles are(i) no collateral attack on a finding of a court of competent jurisdiction, and

(ii) ex turpi causa. Given that Ms Anderson had overlooked the point, I ruled that the parties should file short written submissions upon it. I have now had the opportunity to consider these.

[113]I refuse Mr Dunlop’s application for an adjournment to enable his client to apply to the Criminal Cases Review Commission in the light of my ruling on section 35. This would not be proportionate. Nor would it be proportionate or sensible, in my view, to adjourn the issue to the quantum hearing. This is a point of principle which can be addressed now.

[114]In my judgment, the Claimant cannot be heard to say that the Defendant acted wrongly in specifying this particular requirement under section 35(1). He had every opportunity to challenge that requirement at the time, but instead chose to plead guilty. The Claimant cannot be returned by this court to the position he would have been in had(a) the section 35 requirement never been made, and/or

(b) he taken different, and better, legal advice. The section 35 requirement was valid until challenged by the Claimant and set aside or rendered legally nugatory by a court of competent jurisdiction, which would of course include a criminal court. Ex turpi causa applies, and to hold that it does not would be tantamount to permitting the Claimant to assail or abrogate his own guilty plea by a side-wind.

[115]Further, the instant case does not fall within the type of exceptions adumbrated by Lord Sumption JSC in Les Laboratoires Servier v Apotex Inc

[2015] AC 430

, at paragraph 29. There, he was contemplating criminal offences of a minor character.

[116]It follows that the Claimant is barred by public policy from advancing a claim in relation to the period 21st April to 6th September 2015.

[117]It must be clear from the foregoing that, subject to the ex turpi causa point, I have rejected Ms Anderson’s submissions. Her contention that the starting point must be that the Claimant is disobeying a deportation order requiring him to leave the country only carries her a certain distance, because it cannot in my view be deployed as a trump card against the Hardial Singh principles. Thus, her submission proves too much. I have found that the Claimant was not being deliberately obstructive. I have found that the Claimant was a medium absconding risk, but the proper weight to be accorded to that had long since expired. Finally, I have found that there was no realistic, or sufficient, prospect of a volte face by the Zimbabweans during any part of the period under scrutiny.

[118]Thus far, I have found a breach of Hardial Singh (iii) as from 28th January 2015, but the question now arises whether the operation of Hardial Singh (iv) serves to advance that date to the benefit of the Claimant.

[119]In AXD I addressed the issue of whether the Defendant should have initiated deportation action before the expiry of a prison sentence. In the circumstances of the present case, although Mr Dunlop asserted that the Defendant should have done, I would only be prepared to infer that she might have done. This is insufficient for the Claimant’s purposes.

[120]The Claimant left prison and moved across into immigration detention on 5th May 2013. It was not until 11th November that the Defendant reached a decision on the Claimant’s asylum, humanitarian protection, Article 8 and other claims to remain in the UK. I was not taken to the Defendant’s decision letter, but after the hearing concluded I have taken time to examine this lengthy and impressive document. I draw the inference that it must have taken considerable time to prepare. According to paragraphs 6(xii) and (xiii), on 26th April 2013 the Claimant was informed that section 72 of the NIAA 2002, including its presumption, applied to him. The Defendant then received what is described as “an undated response”, but she does not say when. On 20th September 2013 the Claimant was sent a letter asking him to provide any information or changes in circumstances he wished to be considered. However, I have also noted that a Case Owner responsible for determining the Claimant’s various claims to remain here was not appointed until 2nd August 2013.

[121]I accept that on the face of things the Defendant took some considerable time to prepare this letter, and I am obviously concerned about that. However, the parties did not really direct any cogent submissions to this issue, preferring to focus on what, in my view, were peripheral points, including the attempts made to persuade the Claimant to enter the FRS. The delay between 5th May and 2nd August 2013 appears long, but Mr Dunlop did not complain about it – at least, on the basis that I have identified. On balance, I have concluded that it would be wrong for me to hold that the Defendant failed to act with reasonable diligence and expedition between May and 11th November 2013.

[122]The period between 11th November 2013 and 26th February 2014 is explained by the appeal process. Thereafter, there was a period of unexplained delay between February and 1st October 2014, when the Claimant was interviewed by immigration officers. The Defendant should have filed a witness statement dealing with this period, and in my judgment it is inexplicable. I am not particularly troubled by the chronology between October 2014 and February 2015, and part of that period may be accounted for by the Claimant’s refusal to provide bio-data.

[123]Overall, the focus must be on the period between February and October 2014, when in effect nothing happened. I find that the Defendant was in breach of Hardial Singh (iv) in relation to that period. As the Detention Reviews make clear, one of the purposes (possibly the main purpose) underlying the Claimant’s continued detention at this stage was to secure his compliance with the ETD process. I do not hold that this was an improper purpose, but it certainly accentuated the need to proceed with good speed. Had the Defendant acted with reasonable expedition and diligence, an interview with immigration officers should have taken place by 1st April 2014, and the Claimant should have been taken to the Zimbabwean Embassy by 1st August. There was no evidence before me as to how long it takes to arrange embassy visits of this sort, but I can draw the inference that it is not entirely straightforward. Furthermore, I am notionally allowing the Defendant some additional time to reflect the Claimant’s relatively short-lived intransigence. Working backwards from the known chronology, the Claimant’s position should have been made clear by the disclaimer document which he should have been asked to complete by 15th July 2014.

[124]I therefore find that the Claimant was unlawfully detained between 15th July 2014 and 26th May 2016, a period of 1 year 10 months and 11 days. From this must be deducted the 126 days referable to his criminal sentence served between 21st April and 4th September 2015.

[125]It is unnecessary for me to rule on Mr Dunlop’s Hardial Singh (i) and (ii) submissions, or on other facets of his Hardial Singh (iv) case, including his strictures of the Defendant’s delay after 19th January 2016. In the circumstances of this case, I abstain from addressing the Claimant’s Article 5 claim because, although the test under the Convention may be slightly more stringent, I do not consider that any different result would be attained by applying it here.

[126]In the event that this case may go further, I should address the hypothesis that my decision on the section 35 is incorrect, and that the Claimant may legitimately be required to tell the Zimbabwean authorities that he is willing to return there. I note Garnham J’s strong dicta in Babbage that the Defendant could not lawfully deploy this provision to secure compliance, but in my view the issue is complex.

[127]Putting to one side the difficult facts of the instant case, and the obvious complication introduced by the attitude of the Zimbabwean authorities, may section 35 be legitimately used by the Secretary of State both to secure compliance and to justify detention? Its purpose is to secure the obtaining of necessary travel documents to facilitate the deportation of individuals from the UK who do not have them. Such individuals may be detained under immigration powers, although many will not be. In relation to those who are detained, who are refusing to comply voluntarily, and who then commit a criminal offence under section 35 by disobeying the Secretary of State’s requirement to take specified action, it may properly be said that it is the policy of the law that they are now to be treated as deliberately obstructive, assuming that they did not already merit that label. In principle, this is a factor which must be relevant to Hardial Singh (ii) – (iv), to be weighed in the balance.

[128]In most cases, there will be a realistic prospect of removal within a reasonable time, and the sole or principal impediment to removal is the detainee’s wilful obstructiveness. In such cases, the detention is being maintained for a legitimate purpose, and it would be incorrect to characterise what is happening as being detention for the purpose of prosecuting under section 35. Of course, Garnham J’s dicta were not being directed to this state of affairs at all. In my judgment, the Secretary of State would be entitled to deploy section 35 in these circumstances. She is doing so not for the purpose of maintaining or legitimating detention, but for the purpose of facilitating the detainee’s deportation from the UK. I abstain from deciding in this context whether the Secretary of State can use section 35 serially, “for as many times as it takes”. However, I do have serious doubts about whether she may do so in relation to a person subject to immigration detention, having regard in particular to Hardial Singh (ii), if not (iii).

[129]Moving now to the circumstances of the instant case, and hypothesising that I am incorrect about the meaning and effect of section 35, I still have conceptual difficulty with the point that it may legitimately deployed to justify immigration detention on these special facts. If such detention may otherwise be justified, the conceptual difficulty does not arise; but in the event that the Defendant would otherwise be in breach of one or more of the Hardial Singh principles, I continue to struggle.

[130]Ex hypothesi, the problem created by the attitude of the Zimbabwean authorities remains. Unless the Claimant says that he is willing to return, deportation within a reasonable time will not happen. Section 35 cannot physically compel the Claimant to say that he is willing to return; all that it can do is to make him guilty of a criminal offence if he disobeys that requirement. Arguably, it may be more likely that someone in the Claimant’s position would not wish to commit a criminal offence, but I have to say that in most cases (and here I am still focussing on Zimbabwean cases) it would probably make no difference to the outcome. We know that this Claimant was prepared to commit the offence and to take the consequences, and there is nothing to suggest that he is particularly strong-willed. Further, all deportees in this Claimant’s position commit a continuing offence by remaining here beyond the period of their limited leave, and – regardless of the policy of the Defendant in relation to prosecutions – that would appear to make no difference.

[131]The position is not improved from the Secretary of State’s perspective by the observation that those in breach of section 35 are wilful obstructers. I agree that they are, and that this is a relevant factor. However, it cannot begin to justify indefinite detention or the multiple use of section 35.

[132]There may be cases where, on the particular facts, it would or could appear to the Secretary of State (adopting the formulation of Richards LJ) that the threat of a section 35 prosecution might secure a practical result. The detainee might have said something to immigration officers which indicates a potential weakening in resolve. In my view, such cases will fall in the minority.

[133]In my judgment, the issue is not binary or dichotomous. I would agree with Garnham J that section 35 cannot be used to justify detention which would otherwise be unlawful. However, there may be circumstances, in Zimbabwean cases, where it would/could appear to the Secretary of State that the use of section 35 might secure a practical result, namely a change of heart or mind, making deportation within a reasonable time a realistic prospect. That said, this is very much a fact-sensitive exercise, and I would reiterate that any notion that section 35 could be used “as many times as it takes” is so Kafkaesque as to be inimical to the rule of law.

[134]It is unnecessary for me to make any specific findings of fact on this alternative hypothesis. In the event that my ruling on section 35 is overturned, it would not be difficult for others to make these findings, extrapolating slightly from those that I have already made.

CONCLUSION

[135]The Defendant was in breach of Hardial Singh (iii) and (iv), viewed in combination, between 15th July 2014 and 25th May 2016 (save in relation to the period 21st April to 6th September 2015, when the Claimant was serving his criminal sentence), and he was unlawfully detained during that period. Plainly, in my judgment, this is a case which warrants an award of substantial rather than nominal damages. If damages cannot be agreed, the case should be listed for hearing on the issue of quantum.

[136]The Claimant is entitled to a declaration that the Defendant may not lawfully require the Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agrees to return voluntarily. However, if counsel wish to advance any submissions as to the precise formulation of declaratory relief in the light of my judgment, I will receive those in writing.

[137]Nothing in my judgment should be interpreted as condoning the Claimant’s continued unlawful presence in the UK, at public expense.