Abid, R (on the application of) v The Secretary of State for the Home Department [2017] EWHC 1962 (Admin)

Case No CO/5842/2015[2017] EWHC 1962 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2017
Before
HELEN MOUNTFIELD QC(Sitting as a Deputy Judge of the High Court)
Between
THE QUEENClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Philip Nathan (instructed by Duncan Lewis) for ClaimantMr Rory Dunlop (instructed by the Government Legal Department) for DefendantHearing Hearing date: 26 June 2017
JudgmentHelen Mountfield QC :Introduction
[1]This application for judicial review has a long history. It started life as a claim about high principle: when it started, it appeared to concern the ongoing wrongful detention of the Claimant, ostensibly for immigration purposes, but without any steps at all being taken to progress his removal from the jurisdiction. The matter was listed for an urgent rolled-up hearing on 10 March 2016. But by the time of that hearing, the Claimant had been removed from the jurisdiction (without opposition from him); the Defendant had responded to the Claimant’s pre-action letter in terms which appeared to suggest new grounds of challenge; moreover, extensive disclosure shortly before the hearing made, it clear that this was not a case where no steps at all had been taken to effect removal: at least some steps had been taken in relation to removal of which the Claimant had been unaware when the claim was commenced. So the claim was then about whether the steps taken were adequate to meet the requirements of law in the circumstances; about whether the Defendant was liable to pay damages; and costs. The 10 March 2016 hearing had initially been listed as an expedited rolled up hearing, but in the light of late disclosure a full hearing could not take place and it became a permission hearing and application to amend the grounds in the light of disclosure to plead new errors of law in the approach to ongoing detention thereafter.[2]I granted permission on the Hardial Singh ground concerning the allegation that the Claimant had been wrongly detained without adequate steps being taken towards removal (see paragraph 6 below), and ordered a ‘rolled up’ hearing on an amended ground concerning failure by the Defendant to follow her policies: a ground which appeared to emerge from the recent disclosure. Having heard a very lengthy permission application, I reserved matters to myself as this seemed an efficient way to deal with the application on the basis that the matter would soon return to court. Unfortunately, the case did not come back to the High Court for another fifteen months. Moreover, by the time the claim eventually came to be heard in June 2017, the issues had moved on again, as a result of further consideration by the Claimant’s lawyers of the late disclosure which had been made shortly before the 10 March 2016 hearing.[3]A new ground was now pleaded on the basis of errors in the way the Claimant had been described in various documents considering whether he ought to be detained, and – it was said on the basis of the further disclosure now made – a different unjustified delay in processing the Claimant’s removal from that originally pleaded. It was now said that the Defendant had erred in law by waiting unnecessarily for feedback from the United Nations High Commission for Refugees (“UNHCR”) and in delaying on the basis of an erroneous belief – expressed in the Defendant’s response to the pre-action protocol letter from the Claimant - that it was they, not the Defendant, who cancelled refugee status.[4]So the claim was no longer about whether the Claimant had been detained and then forgotten altogether for the whole period of his detention from 18 June 2015 and the issue of the claim on 27 November 2015 (as it had understandably first appeared, and been alleged in the original claim form). It was now about whether there had been a three month period of unlawful detention caused by policy failures and failures to act with adequate expedition for a much shorter period, between July and September 2015; and, if that period of detention was vitiated by errors of law, whether the claim was in any event academic because, as the Defendant claims, the Claimant would inevitably have been detained during that period in any event, as an abscond risk.[5]This procedural history illustrates that the Secretary of State’s failure to get an early grip on proceedings and to give the Government Legal Department sufficient instructions to enable them to make complete and accurate disclosure of all relevant matters in a timely way has made dealing with this case far more complex and costly than it would have been if there had been proper record keeping, and consequently full and accurate disclosure at an earlier date, and a properly informed (and factually accurate) response to the pre-action letter.

The overarching principles

[6]The overarching principle is that, whatever the context in which it occurs, where the state removes a person’s liberty, it is for the jailer to justify the legality of doing so: Khawaja v Secretary of State for the Home Department [1984] 1 AC 74. R(Hardial Singh) v Governor of Durham Prison [1983] EWHC 1, [1984] 1 WLR 704 sets out the principles as to lawful use of the power to detain someone for immigration purposes, and these have been endorsed by the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12, [2012] AC 245. The Hardial Singh principles are that: i) The Secretary of State can only detain if she intends to deport the person detained, and is using the power to detain for that purpose; ii) The deportee may only be detained for a period which is reasonable in all the circumstances; iii) If, before expiry of what would otherwise be such a reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, she should not seek to continue to exercise the power of detention; and iv) The Secretary of State should act with all diligence and expedition to effect removal.[7]Lumba also establishes that it is unlawful for a public authority to act inconsistently with a published policy in the absence of convincing reasons for declining to do so.[8]As to the fourth Hardial Singh principle, this was elaborated by the Court of Appeal in Krasniqi v Secretary of State for the Home Department [2011] EWCA 1549 at [12], where the Court of Appeal held that ‘mere’ administrative failings are insufficient to found a claim on the basis of the fourth Hardial Singh principle. The Court of Appeal deprecated the idea of judicial micro-management of the efficiency of the removal process, and held that there is “a high hurdle” to cross to establish a failure to act with reasonable diligence and expedition amounts to illegality. It also held that even if the hurdle is crossed, no cause of action is established unless the Claimant can show that the delay was causative of his detention, and that he would have spent less time in detention if the Defendant had acted lawfully. Krasniqi is binding on this court.

The issues in this case

[9]The present case now concerns two allegations: i) That the Secretary of State acted unlawfully in failing to follow her own published policies as to detention and removal; and ii) That in the circumstances, there was a breach of the fourth Hardial Singh principle.[10]The Secretary of State acknowledges that some mistakes were made in the course of detaining the Claimant, and in particular, that it wrongly recorded that he was a detainee who posed a particular danger to the public when this was not in fact supported by the evidence; but she says that this makes no difference because, in proper application of her policies, she would have detained the Claimant in any event; and because there was no lack of diligence and expedition, taking a reasonable view of the situation. In effect, she says that the errors which were made were not relevant to the decision to detain, which would have been made in any event, and so the detention should not be declared unlawful, for the reasons set out by the Supreme Court in Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, that is, because any such declaration would have no practical effect.

The facts

[11]The facts are as follows. The claimant, named Omed Abid in the claim form, is actually someone called Regir Abed Naamat. He is an Iraqi national from the Kurdish Autonomous Zone of Iraq (“the KAZ”).[12]The Claimant arrived in the UK clandestinely, on the back of a lorry, on 21 November 2007, when he was still a minor. He claimed asylum on 8 January 2008, claiming to be from the village of Raas Al-Ein in Syria, and to be a Kurdish rights demonstrator in Syria who would therefore be in danger on return. The Defendant accepted the Claimant’s claim to be Syrian, and although she refused his application for asylum on 15 April 2008, she granted him discretionary leave to remain (because he was a minor) until 3 October 2008.[13]On 16 October 2008, the Claimant submitted an application for further leave to remain in the UK, which was refused on 19 January 2009. However, on appeal, the tribunal accepted the Claimant’s claims that he was Syrian; that he had been arrested filming a Kurdish demonstration; and that he would face a well–founded fear of persecution in Syria. In fact, each of those claims was false.[14]On the basis of the tribunal’s findings of fact, however, the Defendant then accepted that the Claimant was a refugee and granted him leave to remain for five years, until 19 March 2014.[15]On 11 March 2014, the Claimant made an application for Indefinite Leave to Remain (“ILR”). It is quite likely that, but for supervening criminal conduct, the Claimant’s false claim to be a refugee would not have been exposed, and that his application for ILR would have been accepted.[16]However, later in 2014, he was convicted of two separate offences of attempted robbery in swift succession. On 12 May 2014, he was convicted of attempted burglary at North Cheshire Magistrates Court, and made subject to a community order (as well as being deprived of a crowbar, screwdriver and gloves). On 10 September 2014, he was convicted at Wolverhampton Crown Court of attempted robbery and, on 21 November 2014, sentenced to 15 months’ imprisonment. (His appeal against this conviction was refused by the Court of Appeal Criminal Division on 15 December 2015).[17]On 17 December 2014, the Claimant was notified that the Defendant considered he was no longer eligible for refugee status, on the basis of his serious criminal offending, and so was liable to automatic deportation to Syria under section 32(5) of the UK Borders Act 2007 unless he fell within one of the exceptions set out in section 33 of that Act.[18]The Claimant’s response, in a letter dated 26 December 2014, was to argue that he was not guilty of any crime (he had appealed against the second of his convictions), and that deportation would breach his Article 8 rights to respect for his private and family life.[19]On 24 April 2015, the Claimant was seen by an Immigration Enforcement officer in prison. On that date he revealed, for the first time, that was not in fact from Syria as he had previously maintained, but from the KAZ. This meant, of course, that the whole seven year period in which he had been in the UK as a Syrian asylum seeker was based on a fiction of a nationality, and a history of political activity, convincingly portrayed to the first tier tribunal.[20]The officer informed the Claimant that he could not be returned to the KAZ, but that he could be returned to Baghdad, and that he could then use funds which he would be provided with under the Financial Returns Scheme (“FRS”) to return to Erbil in the KAZ. The Claimant said he could not go to Baghdad, and would stay in detention for ‘as long as it takes’.[21]However, on 12 May 2015, the Claimant decided that he would return to Baghdad if necessary, and made a first application for FRS assistance. He also provided some biographical data to assist in processing his return, and undertook to provide more.[22]FRS assistance can only be granted if a person has withdrawn any claims for a right to remain in the UK. On 14 May 2015, the Defendant rejected the Claimant’s FRS application because he had not yet formally withdrawn his application for ILR.[23]The Defendant wrote to the Claimant on 1 June 2015 asking him to show cause why his refugee status should not be cancelled by reason of his serious criminal offending, pursuant to section 72 of the Nationality Immigration and Asylum Act 2002. He did not respond.[24]Once the Claimant’s custodial sentence ended on 18 June 2015, the Claimant was detained under immigration powers. The Defendant received identification documentation from the Claimant the next day, but the copies of his parents’ passports which he provided were blurry and not easy to translate. So on 7 July 2015, the caseworker faxed a letter to the Claimant at Dover Immigration Removal Centre (“Dover IRC”), notifying him of cancellation of his refugee status. For whatever reason, it seems unlikely the Claimant received this letter, and a further copy was faxed to Dover IRC on 27 July 2015 to be served on the Claimant. However, when the Defendant received no response, on enquiry, Dover IRC said they had not received this letter, so it was resent for a third time on 7 August 2015. On that day, confirmation was received from Dover IRC that the Claimant had been served with the notice.[25]There was clearly an unfortunate administrative delay between (at least) 27 July and 7 August 2015, and possibly between 7 July and 7 August 2015. At the hearing, I recorded that both parties agree that, on the basis of Krasniqi, this was not a long enough or egregious enough delay to render that detention a breach of Hardial Singh principles, since steps were being taken to effect removal, though it is right to record that on receipt of the draft of this judgment, Mr Nathan indicated that he did not recall making such a concession.[26]Once he had received notification of cancellation of his refugee status on 7 August 2015, the Claimant had ten working days to respond.[27]On 28 August 2015, a second FRS application was completed by the Claimant, and on 3 September 2015, he signed a disclaimer of any rights to remain in the UK, which was placed on the Defendant’s General Central Information Database (“GCID”) (though marked as being on hold pending withdrawal of his refugee status and clearance of the nationality issue).[28]The next stage was for the Defendant to seek the advice of the UNHCR, which has a right to be consulted though not – as at some stages the Defendant wrongly suggested – to determine the Claimant’s right to refugee status.[29]In accordance with the Defendant’s policy, the UNHCR was given 15 working days to respond. On 9 September 2015, the UNHCR questioned whether it would be safe to return the Claimant to Iraq. (The Defendant considered this view and decided that it was: there is no challenge to that decision).[30]Meanwhile, on 4 September 2015, the Defendant sent the Claimant’s identity documentation to the British consulate general in Erbil, in the KAZ, in order for them to liaise with the KAZ government and to seek their agreement to accepting the Claimant back.[31]The Claimant’s identity documentation was delivered by hand on 16 September 2015 to the Nationality Passport and Residence Office in Erbil, which was the relevant department of the KAZ Government.[32]On 19 October 2015, a representative of the Foreign & Commonwealth Office (“FCO”) met with the KAZ government to discuss cases where clearance was outstanding, including the Claimant’s. On 10 November 2015, the Defendant made further enquiries of the FCO contact in Erbil as to progress on the Claimant’s case. There was another FCO meeting with the KAZ government on 23 November 2015 to discuss cases where clearance was outstanding, including the Claimant’s.[33]The Claimant remained in immigration detention, and does not appear to have been aware of these diplomatic steps which were being taken to progress his return. It is therefore quite understandable and proper that, on 30 October 2015, the Claimant’s solicitors threatened judicial review in a pre-action letter. Part of the claim (based on what they knew at that stage) was an allegation of unacceptable delay by the Defendant, by reason of her failure to take steps to contact the Iraqi authorities to obtain a European Travel Document (“ETD”).[34]The Defendant responded to the pre-action protocol letter in a letter dated 16 November 2015. It is very unfortunate that this letter contained a number of material errors of fact, based on apparent mistakes in the Defendant’s records. This is not trivial, nor is it meaningless bureaucracy: for the state to be able to say why it has acted in a particular way, and to be accountable to a court for what it has done on the basis of true facts is an essential aspect of the rule of law and a safeguard against arbitrary action. So when the state detains someone, it is important that its officers keep proper records to justify their decision-making so that, if asked, they are able to justify the detention; so that, if required, they can give factually accurate instructions to the Government Legal Department as to the basis upon which they have deprived someone of their liberty; and so that if challenged, they can give a correct account of themselves to the court.[35]The errors in the 16 November 2015 response to the pre-action letter were as follows. First, it wrongly alleged that the Claimant had not been fully compliant in an interview on 2 September 2015. This error (which was repeated in the Summary Grounds of Resistance) is not borne out by the file note of the 2 September meeting, and is rightly no longer maintained.[36]Secondly, the letter wrongly stated that an ETD application could not be made “until UNHCR have cancelled your client’s refugee status …” (emphasis added), and claimed that according to the Defendant’s Asylum and Nationality Policy, an application for the ETD could not be made to the Iraqi authorities until cessation of refugee status had been completed. These statements too were erroneous: it is the Defendant, not the UNHCR, which confers and cancels refugee status, and in fact an application for ETD status both could be, and was in fact being, progressed before that letter was written.[37]Finally, the 16 November letter said that removal could not yet have been effected because further investigations (prior to removal of refugee status) were necessary in the light of the UNHCR’s comments. This was incorrect because in fact the UNHCR’s concerns had actually already been received on 9 September 2015, and considered and rejected by the Defendant a matter of days later. So the whole basis upon which the Defendant indicated that she intended to defend the claim was flawed.[38]This application for judicial review was made on 27 November 2015, and on the same day, Laing J ordered expedition of the claim. She noted the contradiction between the Defendant’s claim that no removal or even an ETD application could proceed pending a decision by the UNHCR, and the Claimant’s case – which is now accepted to be correct – that the decision as to whether or not to remove refugee status was one for the Defendant herself, having merely consulted the UNHCR. Neither she nor the Claimant knew on that date that the UNHCR’s comments had in fact been received, and a decision made not to act on the basis of them. Nor, having not had disclosure, did the Claimant know about the various other erroneous statements about him in the Defendant’s records, upon which he later relied.[39]On the same day as Laing J granted leave, whether coincidentally or not, there was further FCO chasing of the KAZ government as to progress in relation to travel documents.[40]On 7 December 2015, the Defendant applied for an extension of time to file her Acknowledgment of Service. By 8 December 2015, the Defendant seems to have decided that it was not for the UNHCR to determine refugee status, and that she did after all have authority to remove refugee status herself. On that day, she granted authority for removal of the Claimant’s refugee status, having considered the UNHCR’s observations.[41]On 9 December 2015, Laing J varied directions to allow this extension of time. On 14 December 2015, the FCO met with the KAZ government to discuss cases where clearance for return was outstanding, including the Claimant’s, and on 18 December 2015, she filed her Acknowledgment of Service.[42]On the same day, she served the Claimant with a decision to cancel his refugee status and with a deportation order. The Claimant was afforded a right of appeal, which he did not exercise. Indeed, he filed a disclaimer of any right to appeal on 22December 2015. On 23 December 2015, the Claimant was accepted onto the FRS.[43]The Defendant’s notice accepting the Claimant onto the FRS said that with the supporting evidence provided by the Claimant, his acceptance into Iraq would not take long, and the usual timescale for obtaining an ETD was usually about 3 weeks, after which travel arrangements would be made in a matter of days.[44]On 7 January 2016, the Claimant’s solicitors filed a reply to the Acknowledgement of Service, claiming that there had already been a six month period of detention which was not Hardial Singh compliant, and challenging the assertion that it was reasonable to assert that it would take ‘about 3 weeks’ to obtain an ETD.[45]On 8 January 2016, Cheema-Grubb J ordered a stay of the claim pending a further update from the Defendant to be filed by 3 February 2016. On what she had before her at that point (which of course included the material errors in the response to the pre-action letter), she suggested that the detention had been Hardial Singh compliant up until that point.[46]Matters moved on again. On 14 January 2016, the FCO chased the KAZ government again on the Claimant’s case, saying he was ‘desperate to return’. The Defendant chased the FCO on this by telephone on 2 February 2016, and on 3 February 2016, both the Government Legal Department and the Claimant’s representatives filed further representations with the court.[47]On 10 February 2016, Sweeney J ordered a rolled up hearing, and observed that while the Defendant’s processing of the deportation had been ‘less than perfect’ he was inclined to agree (on the basis of the disclosure to date) that there had been no breach of Hardial Singh principles.[48]Finally, on 11 February 2016, the KAZ government agreed to take the Claimant back. The defendant issued an ETD, bought tickets for the Claimant’s removal and removed the Claimant to Erbil on 5 March 2016. He received an FRS payment of £750.[49]On 1 March 2016, on the basis of his imminent return, the Government Legal Department invited the Claimant to withdraw this claim for judicial review, by consent, with costs to be decided after submissions in writing.[50]The Claimant refused. It is fair to say that because of the mistakes in the Defendant’s response to the pre-action letter and imperfect disclosure, the factual position was somewhat confused. The Defendant’s actions up until that date were not in a form which he or his lawyers could have been expected to accept were Hardial Singh compliant and worthy only of nominal damages[51]On 10 March 2016, the Defendant filed a skeleton argument for the ‘rolled up’ hearing that day. On the same day, the Claimant filed a Reply to the Acknowledgment of Service, and an application for permission to amend, alleging that the ongoing detention had been vitiated by different errors of law. In particular, the records by then recently disclosed showed errors in the Defendant’s approach to the risk of re-offending, as she had incorrectly identified the Claimant as a ‘MAPPA nominal’: that is, a person who has committed such serious offences that there are Multi-Agency Public Protection Arrangements in place and identified this as a basis upon which he ought to be detained. The Claimant therefore understandably (and correctly) said that, the Defendant had misinterpreted and misunderstood the OASys records from prison, and treated the Defendant as a person serving an extended sentence for public protection (and indeed a ‘MAPPA nominal’), and said that if she had not done so, she would not have detained the Claimant pending his removal from the jurisdiction.[52]At the hearing on 10 March 2016, because of the confused factual position, the very recent disclosure (and absence of evidence on events in recent months), I considered that there might be merit in the Hardial Singh ground, and granted permission on that. I could not determine the arguability of the Claimant’s proposed new ground, but on the basis of the confusion thus far, and what did appear (and is now accepted) to be a misreading by the Defendant’s officers of the OASys records and her consequent assessment of risk, I considered permission to amend ought to be granted, and that the merits of that ground should be considered on a rolled-up basis at the full hearing.[53]Matters have moved on considerably since that time, and the ‘essential reading’ I was invited by the Defendant to consider for the full hearing on 24 June 2017 included witness statements from two of the Defendant’s officials, Mr Ghulam Farooq and Mr Declan O’Neill, both of which came into existence after the 10 March 2016 permission hearing.

The parties’ competing submissions

[54]The ground between the parties has narrowed considerably. As I have already indicated, this started as a claim for wrongfully refusing the Claimant access to the FRS, failure to apply for an ETD, failure to return copies of the Claimant’s Iraqi identity documents and for wrongful detention between 18 June 2015 and 5 March 2016.[55]In my view, the bringing of a claim in relation to an error of approach to the FRS was entirely understandable based on the Defendant’s case as set out in her response to the pre-action letter; and the claim that the Defendant had failed to take proper steps to obtain an ETD was also a reasonable one to bring, since, on the basis of what the Defendant had said in that letter, the Claimant understandably but wrongly believed the Defendant was taking no steps at all to obtain an ETD pending “a decision” by the UNHCR as to whether or not it would cancel the Claimant’s refugee status.[56]By the time of the substantive hearing, and his lawyers having had a chance to consider the full disclosure by the Defendant, the Claimant no longer seeks to pursue the first three grounds of review – save to says that it had been reasonable for him to pursue them on the information before his solicitors when they were pleaded, and he ought to have his costs of doing so.[57]However, Mr Nathan on behalf of the Claimant did pursue his new ground of review, added on 10 March 2016. He said that there were the following failures by the Secretary of State to follow his policy in paragraph 55.3.2.5 of the Enforcement Instructions & Guidelines for the Defendant’s officials (“the EIG”): i) As shown in the Claimant’s monthly progress report of 27 July 2015, his detention was maintained on the basis of three errors of fact: first, that he was obstructing the removal process by failing to give his correct identity; second, that posed a high risk of harm; and third, that he was likely to abscond because he had no personal ties. All of these are factors in the Secretary of State’s exercise of discretion as to whether to detain or to release on bail, and all were held against the Claimant. ii) In fact, as the Secretary of State now accepts, the Claimant was not failing to co-operat with his removal, had provided satisfactory evidence of his identity and nationality, and had complied with earlier (criminal) bail requirements. iii) The Claimant did not pose a high risk of harm to the public: the first detention review was wrong to describe him as a “MAPPA nominal”; iv) The Claimant had provided convincing evidence over a period of time that he had been living with his girlfriend, and submitted therefore that it was wrong to suggest that he did not have close enough personal ties to limit his abscond risk. v) It was irrational to suggest – as Mr Farooq did in his witness statement – that even if he was not too dangerous to release, the Claimant could not have been released on tag because this would have been too expensive. It is cheaper to tag someone than to keep them in immigration detention.[58]It is right to point out that the last two points were not pleaded and were only developed in the skeleton argument and orally.[59]Mr Nathan also continues to pursue his Hardial Singh ground, which in a sense is tied up with the new ground on error of law in the detention reviews which the Defendant used to justify his continued detention pending removal. In short, Mr Nathan says that the Defendant’s argument that she had many procedural hoops to jump through before she could return the Defendant to KAZ is a misleading one. Once the Claimant had signed a disclaimer of his appeal rights, it was fully open to the Defendant simply to return him, and there was no justification for the ongoing detention after that.[60]He submitted that Immigration Rule 358C did not require the Defendant to consult the UNHCR as a step which had to be undertaken before the Claimant could be returned. The language of Rule 358C was actually that the UNHCR could have access to the Claimant’s records if he agreed. In this case, the Defendant had simply contacted UNHCR without the Claimant’s consent, which was unnecessary and led to a lengthening of his period of detention.[61]In those circumstances, Mr Nathan’s submission was that the Secretary of State had failed to act with sufficient expedition (or in compliance with the EIG) because her officials had not started the process of redocumentation when they first made contact with the Claimant. The Defendant’s officials had been to see the Claimant before he entered immigration detention, that is, on 24 April 2015, and returned to see him on 12 May 2015 when he provided a disclaimer and necessary biodata. The Claimant and his parents’ identity cards were received by the Defendant on 19 June 2015.[62]On Mr Nathan’s account, the detention was lawful until 19 June, but then the process of redocumentation simply came to a halt, and nothing happened until 11 September 2015. It was only when the Claimant made a bail application that the presenting officers saw what was happening, and took steps to get things moving again. Documents were sent to Iraq on 11 September 2015. So detention for that period of (nearly) three months was not Hardial Singh compliant.[63]The Defendant says that on the facts as they now appear, she acted at all times with reasonable expedition in seeking to effect removal, and so the Hardial Singh ground should be dismissed. She relies on Krasniqi to say that any administrative failings between 19 June and 11 September 2015 were not such as to amount to illegal want of prosecution.[64]She also submits that in any event the Claimant cannot show that the delay was causative of his detention, since he would not have spent less time in detention if the Defendant had acted lawfully. She was taking steps to remove the Claimant to the KAZ, and the ‘hard cases’ were not processed in order of receipt, so even if there had been no errors he would not have been removed any earlier.[65]While she accepts that errors of fact were made in the detention reviews and (implicitly) that she thereby erred in law in her decisions to detain, by making an erroneous assessment of risk on the basis of a wrong reading of the OASys reports, she says that permission should be refused on this ground because these errors were not causative of the Claimant’s ongoing detention either.[66]Paragraph 55.3.2.5 of the EIG which provide that if removal is not imminent, a case worker should consider the risk of absconding: the greater the risk of absconding, the more likely it is that continued detention would be appropriate. The Defendant relies on the following words:
“An assessment of risk of absconding will also include consideration of previous failures to comply with temporary release or bail. Individuals with a long history of failing to comply with immigration control or who have made a determined attempt to breach the UK’s immigration laws would normally be assessed as being unlikely to comply with the terms of release on restrictions …”
[67]She says that the Claimant did have such a long history of failure to comply with immigration control, and had indeed made such determined attempts to breach the UK’s immigration laws: by entering clandestinely, and by lying over a period of many years to the Home Office and an immigration judge about his name, his nationality, and why he would face persecution in Iraq. Indeed, he initially lied to this court too about his name. She says he could not be trusted to act honestly, not least because he had been convicted of two offences of attempted dishonesty (burglary and robbery), and had continued to protest his innocence even after conviction.[68]She points out also that in the absence of family ties, and facing the risk of deportation, the Claimant had nothing to induce him to remain at a bail address, and had experience of evading immigration control. The high likelihood of his removal to KAZ meant that he had no incentive to remaining in contact with the authorities. This was not the same as answering to bail when he had refugee status and no risk (as he saw it) of being removed from the UK.[69]Relying on the evidence of Mr Ghulam Farooq, the Defendant says that the Claimant would have been detained in any event on account of a high risk of absconding. She suggests that the Defendant’s assessment of risk of absconding should be accepted unless it was irrational.[70]Accordingly, she relies on sections 31(3C)-(3E) of the Senior Courts Act 1981, which provide that the High Court must refuse permission if it appears to the High Court to be ‘highly likely that the outcome would not have been substantially different’ in the absence of any exceptional public interest which would justify the grant of permission in any event. She draws my attention to the recent Supreme Court decision of R (O) v SSHD [2016] UKSC 19 at [50], in which the Supreme Court declined to reverse a refusal of permission, even though they considered that O had been unlawfully detained, because the Claimant could only have obtained a declaration and nominal damages which were ‘of no practical benefit’. She seeks to persuade me that this is such a case.

My conclusion on the Hardial Singh issue

[71]Even though it is for the state to justify depriving someone of his liberty, I am bound by Krasniqi to hold that mere administrative failings will not render detention unlawful, unless they reach the ‘high threshold’ of unreasonableness such as to amount to illegality. In my view, what Carnwarth LJ meant in that passage was that the Hardial Singh fourth principle cannot be a counsel of perfection, so that any departure from strict best practice in pursuing deportation renders ongoing detention unlawful. Nonetheless, it remains for the state, which is depriving the person of his liberty, to justify the steps that were taken, and to show that they were reasonably expeditious ones in the circumstances.[72]I do not need to wrestle with the detail of what this might mean in these circumstances, because I am satisfied that on the facts which finally emerged, the Secretary of State did act with reasonable expedition.[73]It was not until 19 June 2015 that she obtained the Claimant’s biographical data. It took until 7 July 2015 to draft a notice of intention to cancel the Claimant’s refugee status. I am satisfied that between July and September 2015, she took appropriate steps to draft and serve letters to the Claimant and the UNHCR giving notification of her intention to cancel the Claimant’s refugee status, and giving reasonable (but not unduly lengthy) periods for them to submit their views.[74]I am not at all persuaded that it was unreasonable for the Secretary of State to seek the views of the UNHCR and to wait for them before processing the FRS application. By consulting the UNHCR, she was acting as she understood the Procedures Directive, the Immigration Rules and her own policies at the relevant time required, and indeed, the UNHCR may well have had relevant up to date information as to safety of return to Iraq which was outside the Claimant’s own knowledge, and possibly also the Defendant’s.[75]Article 38 of the Procedures Directive requires the state to inform someone with refugee status, in writing, of its intention to cancel refugee status, and to obtain up to date information from UNHCR, and to give a decision in writing unless the relevant member state has derogated from this obligation. The power to derogate in Article 38(4) is a power, not a duty, and at the relevant time, the UK had not exercised it. Although they were later changed, the Immigration Rules at the relevant time required the Secretary of State to consult the UNHCR. In any event, it was not irrational for her to do so, given the volatile situation in Iraq.[76]There was no duty upon the Secretary of State to take actions to effect removal simultaneously rather than sequentially (see R (HE) v SSHD [2012] EWHC 3628 (Admin) at [5], R(Krawetskiy) v SSHD [2013] at [25]). For my own part, I would not take these cases as authority that the Defendant can simply decide to act sequentially where simultaneous action would be reasonably possible, and where failure to take steps as soon as possible will cause unnecessary delays. Indefinite immigration detention is a serious matter and should not be unduly prolonged: it remains for the Defendant to act diligently to effect removal of an immigration detainee. But on the facts of this case, it was reasonable for the Defendant to wait until she knew that the Claimant’s refugee status could be cancelled, because it would be safe to return the Claimant to the KAZ, before asking the authorities in the KAZ to verify his biographical data. It is clear from the steps that were taken to chase the ‘outstanding cases’, including the Claimant’s, that doing so takes a lot of diplomatic time and goodwill. It made sense not to waste that time and goodwill if it turned out that the Claimant could not be returned to the KAZ in any event.[77]I am satisfied that it was reasonable for it to take between 19 June and 7 July 2015 to draft a notice of intention to cancel the Claimant’s refugee status.[78]I am less satisfied that the period of four weeks to fax the letter to the Claimant’s IRC is a reasonable period. When a person’s liberty is at stake, and faxes are faulty, and known to be faulty, then it is a requirement of diligence that other means of transmission should also be considered: for example, first class post. So I consider that this period of detention was not Hardial Singh compliant.[79]I do consider that three weeks was a reasonable amount of time to enable the Claimant and then the UNHCR to comment on the letter.[80]In summary, on the Hardial Singh ground, I find that in the four week period after 7 July 2015, there was a failure of due diligence in seeking to ensure that the documents reached the Immigration Removal Centre where the Claimant was held.[81]However, the Claimant can receive no more than nominal damages (which have already been offered) for this period of detention, because I am persuaded on my review of the diplomatic contact between FCO officials and the KAZ authorities that ‘outstanding case’ applications were not reviewed on a chronological basis of when they were received; and that it would probably have made no difference to the length of the Claimant’s detention if that four week delay had not happened. That is a context-specific decision: if the facts were otherwise, I would have been prepared to hold that there should be an award of damages for that four week period of detention.

My conclusion on the allegation of material public law error

[82]The Defendant rightly concedes that her officials’ reading of the OASys records was wrong, so that her records wrongly recorded that the Claimant posed a high risk of harm, and she acted on the basis of that error.[83]The Claimant does not have permission to argue that the Defendant also erred in holding that there was no evidence of any stable ties in the UK, but as it happens, he is right to point out that there were long records before the Defendant to show that he was living with a girlfriend and had informed various authorities and utility companies etc of their shared address.[84]Again, the issue here is one of discretion. I am not prepared to grant relief on this ground because I am satisfied that, even if the risk assessment had been correct (and even if the Defendant had appreciated that the Claimant was living with a partner), he could rationally and would in fact have been detained under the policy of paragraph 55.3.2.5 of the EIG.[85]The Claimant had made determined attempts to breach the UK’s immigration laws, including a sustained lie over many years about his nationality. He had been convicted of two offences of dishonesty. He had originally said that he could not be returned to Baghdad and would stay in detention ‘for as long as it takes’, before signing up for the voluntary returns scheme. I am satisfied that the Defendant was entitled to believe that the Claimant was unlikely to comply with the terms of release on restrictions even on the basis of his immigration history alone. That means that the error in relation to his risk of harm was not causative of his ongoing detention, which would have happened in any event.[86]Had I not formed that view, I would have been unimpressed by the suggestion – in Mr Farooq’s statement - that the Claimant should have remained in detention because tagging is expensive and consequently reserved for the highest risk prisoners. Tagging is self-evidently cheaper than detention, and a person who is released must, by definition, be a lower risk than a person detained.

Relief and costs

[87]The Defendant invites me to refuse any substantive relief on the Hardial Singh ground, and to refuse permission on the new ground, because the errors of law did not result in any more lengthy a period of detention. A court should be very slow to decide what a decision-maker would have done if she had not erred in law. It is the proper constitutional role of a judge to supervise the exercise of administrative discretion, not to second-guess how a judge might have exercised it herself had she had been called upon to do so. So in order for a judge to refuse relief under sections 31(3C)-(3D) of the Senior Courts Act 1981, on the basis that it is ‘highly likely’ that the outcome would not have been substantially different if the conduct complained of had not occurred, she must in effect be satisfied that if the error of law was removed, the decision-maker could rationally have made the same decision without that factor having been taken into account and that it is highly likely that she would have done so. If the decision is one that the decision-maker only might have made the same way, then, as a matter of constitutional principle, the judge should quash the decision and invite the decision maker herself to re-make it.[88]That said, given the immigration and criminal history in this case, I consider that the criteria for refusing to grant permission in sections 31(3C)-(3D) of the Senior Courts Act 1981 are made out. The Claimant had made determined and sustained efforts to evade immigration control by lying about his nationality and immigration history over many years. He even lied about his name to this court. Moreover, the offences of which he was convicted were offences of dishonesty. I consider that it would not only have been rational for the Secretary of State to detain on the basis of those factors alone, but that it is overwhelmingly likely that she would have done in the circumstances.[89]However, I do not refuse permission on the new ground under the terms of section 31(3C)-(3D) of the Senior Courts Act 1981. Although it seems to me highly likely that the outcome would not have been substantially different if the errors complained of had not occurred, this is a case where in my judgment section 31(3E) is in play. As I stated earlier in this judgment, there is a great public interest in the state detaining people indefinitely for the purposes of effecting removal from the jurisdiction only where the conditions for doing so are clearly made out. That was not the case here. It is wrong for casual and careless risk assessments to form the basis for detention. It is wrong for simple steps (such as transmission of documents) to take four weeks because of technology failures. A few days’ delay may be justified by a broken fax. Four weeks are not. It is wrong for pre-action responses and indeed Summary Grounds of Resistance to be drafted on the basis of seriously misleading facts because due care has not been taken to instruct the Government Legal Department what the facts are, or to read OASys records with sufficient care. Where, as here, there have been errors of law in administrative detention, there is an exceptional public interest in the court saying so and disapplying section 31(3D) of the Senior Courts Act 1981.[90]In exercise of my discretion, I therefore grant permission to apply for permission on the new public law ground, and declare that the Defendant erred in law by wrongly considering the question of detention on the erroneous basis that the Claimant posed a high risk of harm to the public. However, I refuse substantive relief on the basis that it is almost certain in the circumstances that, on proper application of the policy, he would have been detained in any event.[91]On the Hardial Singh point, I would grant a declaration that there was an unlawful failure of due diligence by the Defendant in the period between 7 July and 11 September 2015 when her officials took no alternative steps to transmit documents which were untransmitted because of an apparent fax failure.[92]Since neither of these errors extended the length of time during which the Claimant was detained, he is entitled to no substantive relief other than these declarations. He would be entitled to only nominal damages of £1, which were offered (but refused) soon after the permission hearing on 10 March 2016.[93]I heard submissions on costs at the substantive hearing. It was reasonable for the application for judicial review to be commenced, given the confusions and delays about documents, and in particular, the Defendant’s failure to give the Government Legal Department instructions so as to enable it to comply properly with the pre-action protocol for judicial review; but I have given no relief of any practical benefit. In those circumstances, the fair outcome is to make no order for costs.

Cited in 1 later judgment