Mohammed, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 406 (Admin)

Case No CO/2692/2014[2016] EWHC 406 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/03/2016
Before
HIS HONOUR JUDGE BLAIR QCsitting as a Deputy Judge of the High Court
Between
REGINA (on the application of MUSA MOHAMMED)ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Gordon Lee (instructed by Duncan Lewis Solicitors) for ClaimantJohn-Paul Waite (instructed by the Government Legal Department) for DefendantHearing Hearing dates: 10 June 2015
JUDGMENTHHJ BLAIR QC :Introduction
[1]The Claimant lodged an application for Judicial Review on 10th June 2014. Permission was initially refused on the papers (28th July 2014), but later granted on appeal on 6th January 2015. I heard the oral representations of counsel at a substantive hearing on 10th June 2015, but my judgment was reserved. This was partly because the parties agreed that there was a need for some additional disclosure by the Defendant which might need to be drawn to my attention and commented upon in additional written submissions. An agreed Order was made to ensure disclosure of that additional material and further written submissions from counsel for each of the parties was provided to me dated 10 July 2015.

The Claimant’s situation

[2]The Claimant is now aged 27. In 1992, when he was 5 years old, he arrived with his parents in the UK. His father successfully sought asylum and, being a dependent, he was afforded refugee status and granted indefinite leave to remain. He did not apply for British citizenship. In his witness statement dated 25th April 2014 he says he was born in a refugee camp in Ethiopia and has never been to Somalia. The Defendant considers, however, that he was born in Hargesa, Somaliland, Somalia, because of evidence supplied to her by his father.[3]The Claimant has a very serious criminal record – some 15 offences over 11 court disposals. Before he reached the age of 16 he was convicted 4 times for offences of robbery, attracting sentences ranging from a Supervision Order to an 8 month Detention and Training Order.[4]He was again before the criminal courts on 23rd May 2008 when he was sentenced to 4 years in a Young Offenders Institute. This time it was in respect of drugs offences, including the supply of Class A drugs (heroin and crack cocaine). As the end of the immediate custodial element of that sentence approached in March 2010 he was considered for deportation, but he was still a refugee and there were concerns expressed by an asylum caseworker about the risks to him if he were to be returned to Somalia. Therefore he was not detained by the Defendant for more than a few days in immigration detention. Nonetheless the Defendant did not concede that he wasn’t someone who should be deported.[5]The Defendant proposed:(i) revoking his refugee status,(ii) revoking his indefinite leave to remain, and(iii) instead granting 6 months discretionary leave to remain. However, it would seem that none of this was actually put into effect at that stage.[6]Custodial sentences did not have the effect of bringing about significant changes in his lifestyle. In August 2010 he was arrested on suspicion of an aggravated burglary and then again in respect of supplying Class A drugs. His licence was revoked and he was returned to custody to serve a further part of his 4 year sentence. Meanwhile he contested the new drugs allegations and in the autumn of 2010 was convicted of a conspiracy to supply Class A drugs and sentenced to 5½ years imprisonment. He was to remain as a serving prisoner until the date of his release on prison licence, which was 29th August 2013.[7]The Defendant’s Case Record sheets appear to disclose that there was some confusion or misunderstandings between her departments as to his location, custodial status and asylum status for a while. The Claimant’s counsel also draws my attention to a reference within them on 10th October 2012 which reads: “Somaliland case so removal possible. Can the caseworker who does the decision request the approved caller list at all as this may assist with removal.” (The meaning of latter sentence was impenetrable to anyone in court.)[8]Next, a note from the Defendant’s records dated 30th July 2013 (a month before his anticipated release) was disclosed to the Claimant at the hearing. It states that the author was conducting a sifting exercise to consider the cessation of the refugee status of certain foreign national prisoners where the situations in their countries-of-origin had changed. It acknowledges that ‘revocation’ of the Claimant’s refugee status because of his criminality cannot be achieved in the light of case law (the case of Dang) but ‘cessation’ or ‘cancellation’ will have to be considered. It states that a submission must be prepared to note he cannot be deported/removed to Somalia because of Article 3 ECHR issues, but that consideration will be given to revoking his indefinite leave to remain with its replacement by a period of discretionary leave.[9]On the same day (30/7/13) a person from the Defendant’s Criminal Casework Directorate drafted the wording of a proposed ‘Minute of a Decision to Detain a Person in Accordance with Section 36(1) of the UK Borders Act 2007’. The ‘consideration’ section observed that as he was aware deportation was being considered he may not have an incentive to keep in touch with officials. In addressing the second/third of the Hardial Singh principles ([1984] 1 WLR 704) it read:
“Likelihood of removal within a reasonable time scale…Case has been referred to the asylum team. Pending the outcome from the asylum team regarding his refugee status and then a signed deportation order can be obtained within a reasonable timescale and he is removable on EUL (‘European Union Letter’). There are barriers, such as asylum, deportation order and/or potential appeal and likely time is therefore needed to resolve issues.”
The proposal was for the Defendant to detain him in immigration detention pending his removal. A Higher Executive Officer agreed and provided the written authority to detain him on 28 August 2013, with a review 28 days later.[10]The Defendant continued to detain him in immigration detention from 28th August 2013 until mid-April 2015, when a judge of the First Tier Tribunal granted him bail - a period in immigration detention of 19½ months. He seeks from me a declaration that he was unlawfully imprisoned, following which the parties would seek to settle the quantum of damages.

Counsel’s submissions on the law

[11]There was no significant difference between the parties as to the law applicable in this case.[12]There is no challenge by the Claimant to the establishment on the facts of his case of the 1st of the Hardial Singh principles as they have come to be conveniently summarised and numbered by Lord Dyson in his judgment in R (Lumba) v SSHD [2011] UKSC 12.[13]The Claimant’s counsel maintained that applying the 2nd, 3rd and 4th of the Hardial Singh principles (with the slight adaptations of the 3rd and 4th for cases such as this, identified by Nicol, J. at paragraph 44 of R (Hussein) v SSHD [2009] EWHC 2492 (Admin)) I should conclude that:(a) the reasonable period for which the claimant could be detained in the circumstances of his case was far exceeded;(b) even before the expiry of that reasonable period there came a point when it became obvious that the Claimant’s removal wouldn’t be able to take place; and(c) the Defendant did not act with reasonable diligence and due expedition to effect his removal.[14]The slight adaptation of the 3rdHardial Singh principle in the Hussein case concerns the time taken to decide the additional issues of whether there is a legal bar to the otherwise automatic deportation obligation of a prisoner who received a sentence of more than 12 months on grounds of breaches of the Refugee Convention or the ECHR.[15]The Claimant’s counsel avoided answering the direct question from me as to when he says the Claimant’s detention became unlawful. In relation to the time limits for bringing a claim for judicial review he urged me not to restrict myself to making a declaration from a date no earlier than 3 months before the lodging of the claim because:(i) the Human Rights Act provides a longer 12 month limitation period,(ii) the Defendant has not taken the point, and(iii) relevant information was not disclosed/known to the Claimant until after the claim was initiated.[16]As well as the primary case law in this area, counsel for the Defendant drew my attention to 3 further authorities which he submitted were of particular assistance – R (on application of A) v SSHD [2007] EWCA Civ 804; R (Muqtaar) v SSHD [2013] 1 WLR 649 (CA); and R (Krasniqi) v SSHD [2011] EWCA Civ 1549. I have given them due attention in coming to my conclusions in this case.

The Defendant’s handling of the Claimant’s case

[17]I was taken through the case papers by the Claimant’s counsel to show what he submitted was little, if any, reasonable diligence/due expedition being applied to the Claimant’s case for long periods, and little progress being made.[18]He comments that the monthly progress reports provided to the Claimant reflect significant periods of inaction by the Defendant’s staff, the occasional sending of a chaser email, a failure to engage with or record the real ‘returnability’ problems to Somalia at that time, and inaccurate statements that there were no barriers to removal. He argues that they show no change in reasoning from September 2013 to June 2014.[19]Reviewing the Defendant’s internal documents he had to concede that more action was revealed, but he argued that they are still not of a quality which could be described as diligent or expeditious and the Defendant’s removability assessments do not engage with the country situation at those times. Moreover there is inconsistency as to whether it is Somaliland or Somalia which was the target of the Defendant’s intended removal.[20]The Defendant’s counsel submitted quite the contrary. He drew my attention to the breadth of work and its complexity that must plainly have lain behind the Defendant’s detailed letters of: 7th May 2014 - notifying the Claimant of her intention to cease his refugee status; the 16th July 2014 - ceasing his refugee status, and; her Deportation Decision of 15th September 2014. This involved a detailed examination of his case history and research into his family’s case histories, it required consideration of a substantial amount of national and international case law and objective recent material about the country situation. He also argued that the fact that the Defendant’s internal papers on one occasion reflected a difference of opinion reveals that far from inaction on the Defendant’s part it discloses that there was a healthy debate going on about the Claimant’s case.[21]The Claimant’s counsel makes much of an unusual feature of this case. It is his submission that the Defendant has acted inconsistently and unfairly in her approach to the Claimant so as to result in much wasted time in reaching her decisions. He says it reveals changes of tack so as to suit her objectives at different stages of the removal process; in that process she was consequently less than diligent; and it resulted in his detention for a quite unreasonable length of time in the circumstances of the facts of his case. This feature of the case concerns the destination to which the Defendant was intending to remove the Claimant and the focus of her attention at any one time: Somaliland or Somalia.[22]It is argued on behalf of the Defendant that these complaints about her direction of travel are ones which need to be considered in the context of the known circumstances at the time of each stage of the process. Also some of the confusion may be due to the rather awkward terminology used for the geography in the horn of Africa. In international law the State is referred to as Somalia. However, because of the particular problems which there have been from time to time in the part of that State around its capital – Mogadishu, differences have emerged as to the Article 3 ECHR suitability of enforced returns to that area at certain times, as contrasted with a different part of that State known as Somaliland and its principle city – Hargesa, where enforced returns have been achievable for a greater time period. Sometimes the name Somalia has been used in the sense of the entire State, but at other times it has been used to describe a subset of the State so as to distinguish it from other subsets such as Somaliland.

Conclusions

[23]What was a reasonable period of immigration detention in the circumstances of this case? I have no hesitation in concluding that the period of time over which the Claimant was in immigration detention was within what was reasonable for the circumstances of his case.[24]His detention was undoubtedly so as to achieve the statutory purpose of his removal. It was entirely reasonable to detain him whilst undertaking the necessary steps to achieve that objective because otherwise he presented a very substantial risk of frustrating it through re-offending and being subjected to yet more imprisonment when the statutory priority was to remove him. Moreover I conclude that there was a very high risk that he would abscond. In my view the Defendant initially underestimated that risk before his refugee status ceased. The Claimant had well known for a long time beforehand (during his first long prison sentence) that the Defendant was intending to bring his refugee status to an end with a view to his deportation and thus the risk that he would abscond was very high.[25]I reject the proposition that there was no reasonable prospect of the Claimant being removed. There was certainly a lot for the Defendant to undertake in order to achieve the fulfilment of the statutory purpose and many potential obstacles to overcome - this was acknowledged in the Minute which preceded his period of immigration detention. However, given his absconding risk and his re-offending risk, his detention under Immigration Act powers for a substantial period so as to achieve the statutory purpose of his deportation was justifiable. Specifying a finite period cannot be done, as stated in the Muqtaar case, but in my opinion when he was granted bail the reasonable period for his detention had not yet expired.[26]Did there come a point during his detention when it became obvious that the Claimant’s removal couldn’t take place before the expiry of what would be a reasonable period of immigration detention? The answer is “no”. The evidence presented to me clearly shows that there was a realistic prospect of deportation being effected within a period of immigration detention which would have been reasonable in all the circumstances. Subsequent events support the contention that timely progress has continued to be made towards the objective of deportation, with the area of Somaliland being the part of Somalia to which he can be forcibly removed and there not even being Article 3 ECHR objections now for the part of the State of Somalia around Mogadishu (viz. the most recent decision of the First Tier Tribunal in his case).[27]Did the Defendant act with reasonable diligence and due expedition to effect his removal? I find that she did. It is easy in retrospect to complain about some part of a complex process and suggest that the Defendant could and should have acted more swiftly. We do not know of all the constraints upon her, or what may have frustrated the endeavours of her officers when delays were occasioned. However, I adopt the words of Carnwath, L.J. in the Krasniqi case when he said at paragraph 12:
“To found a claim in damages for wrongful detention, it is not enough 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.”
[28]The Claimant has not satisfied me that there was unreasonableness amounting to illegality. Even if he had so satisfied me, I have been completely unpersuaded that his detention would have ended earlier had there not been any such failure to act with expedition and diligence.[29]Accordingly, the Claimant’s application for a declaration is refused and this judicial review claim is dismissed.

Cited in 1 later judgment