Taskiran v The Secretary of State for the Home Department [2017] EWHC 2679 (Admin)

Case No CO/1092/2017

[2017] EWHC 2679 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

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

Date 30/10/2017

Before

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

MRS JUSTICE ELISABETH LAING

Between

TASKIRANClaimant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

GRAHAM DENHOLM (instructed by DUNCAN LEWIS) for CLAIMANT

RICHARD EVANS (instructed by GLD) for DEFENDANT

Hearing Hearing dates: 11 October 2017

Judgment

Introduction

[1]This is the judgment of the court. The Claimant (‘C’) challenges his detention by the Defendant (‘the Secretary of State’) pending his deportation. He has been detained since 16 December 2016 (when the custodial term of his most recent sentence came to an end). He is still detained. According to a pre-action protocol letter sent by his solicitors on 18 April 2016, he had previously been held in immigration detention during four different periods, between 2006-2011, for a total of about 34 months. During those periods, the Secretary of State was attempting, unsuccessfully, to remove him pursuant to a decision to deport C made in 2007, and a deportation order signed in 2009. She has, since then, made a further deportation order, as we explain below.

[2]C argues that the Secretary of State had no prospect of removing him within a reasonable time when she first detained him, and that she has had no such prospect at any time since then. He asks for a mandatory order requiring his release from detention, on such conditions as the Court considers appropriate (having regard to the conditions of his licence), a declaration that his detention was and is unlawful, and damages for false imprisonment, including aggravated and exemplary damages.

[3]Permission to apply for judicial review was given by Singh J (as he then was) after an oral hearing. Singh J refused bail, but ordered expedition. At the hearing of the application for judicial review, C was represented by Mr Denholm and the Secretary of State by Mr Evans. We are grateful to both counsel for their helpful written and oral submissions. We pay particular tribute to Mr Denholm for preparing, with great speed (in response to very late disclosure by the Secretary of State of relevant emails), a very helpful amended skeleton argument and chronology.

The facts

[4]We have put this narrative together mainly from the internal Home Office documents disclosed by the Secretary of State to C, consisting of GCID notes, the detention reviews, and the recently disclosed emails. The emails are not easy to decipher, or convenient to identify, as their authors and addressees have, in most cases, been redacted. There are also five witness statements from Ms Susan Hunter, which are of some limited help. They are not very detailed, and lack dates in many places. They do not explain many of the disclosed documents. Ms Hunter is an Assistant Country Manager in the Return Logistics section of Immigration Enforcement (‘RL’).

[5]C was born in Turkey on 1 February 1977. He came to the United Kingdom with his mother and siblings on 20 June 1990. His father had been recognised as a refugee. C and his family were in due course given leave to remain until 21 January 1994. On 8 March 1994 C and his family were given indefinite leave to remain (‘ILR’). He was granted no time limit on 24 September 1994.

[6]On 6 February 2002, C’s Turkish nationality was withdrawn, apparently by Turkish Cabinet Ministers. He applied to be naturalised as a British Citizen on 21 March 2002. This application was refused on character grounds.

[7]Between 4 August 1994 and January 2014, C had 27 convictions for 54 offences. Most of those were for theft, and burglary. Others included assaulting a police officer, assault, possession of an offensive weapon, failing to surrender, breach of a suspended sentence order, and three, possession of Class A drugs. Many resulted in prison sentences of varying lengths. His longest prison sentence was two years’ imprisonment for burglary, imposed in 2000. His account to the Secretary of State in his asylum interview suggests that he was addicted to crack cocaine and that this had a powerful influence on his offending.

[8]The Secretary of State tried to deport C during 2007. She served notice of an intention to make a deportation order on 17 January 2007. C appealed against that decision. His appeal was dismissed on 7 June 2007. It was tolerably clear at that stage that the Turkish authorities might issue an emergency travel document (‘ETD’) if C went to the Turkish Consulate, paid a fee, and was willing to return to Turkey to do his military service. C refused to co-operate with the Secretary of State’s attempts to get an ETD for him, by refusing to go to the Consulate.

[9]An undated minute (bundle, page 73) refers to meetings between Home Office officials and the Turkish authorities in 2008, culminating in a meeting which led to advice from the British Embassy in Ankara that the Home Office ‘give up on the ability to remove’ C.

[10]Nonetheless, a deportation order was served on C on 26 August 2009 after further convictions. On 16 September 2010 he was told that an ETD could be got if he agreed to do national service. He refused. He was convicted of assault and sentenced to 6 weeks’ imprisonment on 22 September 2010.

[11]On 25 January 2012, the Secretary of State was considering giving C discretionary leave to remain (‘DLR’) on the basis that she could not remove him. The Secretary of State recognised that though an ETD could be obtained if C promised to do his national service, he was very unlikely to do that. A recommendation to that effect was made on 22 May 2012. It was not until 12 July 2012 that the Secretary of State decided to cease deportation action against C and to grant him DLR until 2 July 2015. He was sent a warning letter which told him that if circumstances changed, his deportation would be pursued. It seems that the existing deportation order had not at that stage been revoked, however, with the consequence that the grant of DLR in 2012 was ineffective, as we explain below.

[12]There seems to have been a gap in C’s convictions between 22 September 2010 and 29 January 2014. For at least some of that time he was in immigration detention. On 29 January 2014 C was sentenced, having pleaded guilty, to 6 years and 9 months’ imprisonment, for counts of rape and of sexual assault. We infer that he must have spent some time in custody on remand before the hearing at which he was sentenced. We have read the Judge’s sentencing remarks, which make clear that he considered the offences to be serious, involving, as they did, a period of detention, two distinct incidents, and severe psychological harm to the victim. The Judge’s starting point, before giving 25% credit for C’s plea of guilty, was a sentence of 9 years’ imprisonment. When C was sentenced, the Secretary of State knew that C’s custodial term would end on 16 December 2016.

[13]An undated minute (p 73) records that, pursuant to section 47 of the Mental Health Act 1983, the Secretary of State directed C’s transfer to hospital in June 2014 and that C was in hospital until October 2014, when he was returned to prison.

[14]The GCID notes for 19 June 2015 recited the history and contain a passage copied from the CID notes. We infer that the passage from the CID notes is of some age, as it refers to C’s ILR and the existence of a signed deportation order. The author of the GCID notes prefaces the extract from the CID notes by saying, ‘The same scenario has popped up again following the subject’s most recent conviction for rape’. In sum, the passage from the CID notes makes clear that, while its author does not consider that if C were stateless, that would in theory bar his removal, in practice the Turkish authorities would not document him until he agreed to do his national service and ‘this is extremely unlikely to happen’.

[15]The CID extract concluded:

“It appears, then that [C] is technically stateless and we cannot remove him as he cannot be documented. You will note that this has been the case for a number of years although no formal decision has been taken on how this case should now be dealt with to bring it to a resolution. The FNO has been convicted of several and serious offences and it is my view that conceding the case would not be appropriate. However, the reality is that we will not be able to remove this man and a decision needs to be made to resolve this case. He had ILR but has since become the subject of a signed DO [deportation order] and is ARE [appeal rights exhausted] thus has no valid leave.”

The conclusion of the GCID note is ‘As the subject has committed a further offence, a decision will need to be made on whether deportation will be a possibility or not’.

[16]The ‘SCW’ [senior caseworker]’s response to that GCID note was that after consultation with the SCW and SEO [senior executive officer] SCW:

“the case owner has been advised to conduct some further checks prior to making a referral for release on the same basis as before. I have made contact with the Turkish consulate today in order to re-acquaint them with the case since our last correspondence from them was in 2007/8.”

Its author hoped to refer back to ‘SCW Leena’ the next day for further instructions. The GCID note records that emails were sent to the Turkish Consulate on 22 June and that its author was waiting for an up-to-date response. She had also contacted ‘CST (Teresa Patrick)’ and RL for some advice on ‘progressing this complex case’. On 6 July 2015. Teresa Patrick replied. She would make further enquiries, to ensure that she had not missed anything, but as things stood, believed that C was ‘not removable to Turkey’. She suggested that his nationality on the CID notes should be updated to ‘stateless’.

[17]On 14 January 2016, RL sent an email to an addressee whose name has been redacted about an invitation to attend the second meeting of the EU-Turkey Joint Re-admission Committee on 19 January 2016. RL said it could be timely for the addressee to go to the meeting as, although RL had not updated its processes since the implementation of EURA, RL had come across one case where RL needed to use EURA but the Consulate would not co-operate. This was person whom RL wanted to remove but who had lost his Turkish citizenship because he had refused to do national service. The Consulate refused to issue an ETD because he was no longer a Turkish citizen. RL quoted article 3 of EURA, which made it quite clear that the Turks ‘should document for return’. The Consulate had no authority to issue ETDs for people who were not Turkish citizens, and did not know about EURA. RL asked if it was possible for this to be raised at the meeting, and for information about the process, should it be agreed that such cases could be re-admitted. We do not consider that this person was C: see paragraph 31, below. It seems from the emails that there were at least two people in this position.

[18]There are no further entries in the GCID notes until a data protection request from C’s solicitors, and a note on 17 February 2016 saying that C had been seen that day in prison and was asking for an up-date about whether he would be detained at the end of his sentence later that year. ‘He kept asking again and again’, and kept saying that ‘he is looking at unlawful detention’.

[19]A note on 29 February 2016 records a discussion about the case. Nothing had been received in response to the enquiries made of CST in 2015. The caseworker was asked to follow this up. A submission to concede had been done when C had been convicted previously. The author of this note had asked the caseworker to get the information necessary in order to draft a submission to concede ‘which will need to be approved if the reply from CST is negative’. The author of the note had asked for the submission to be drafted by 11 April 2016 in case SMT asked for further information when the submission was made.

[20]A pre-action protocol letter was received in April 2016. That led to a ‘barrier’ being put on the ‘removals screen’. A submission not to deport was fully drafted by 21 April 2016, and emailed to the SCW. On 15 April 2016, the caseworker recorded that the case had been discussed ‘at length’. It had been ‘generally agree’ that C should be treated as stateless and it had been agreed following a number of checks, ‘which you recommended, that a referral should be made with a recommendation not pursue deportation’. Those checks had been made and there had been no further information from CST, RL or the Turkish Embassy about this case, ‘Therefore please see recommendation/release referral (aside)’.

[21]On 21 April 2016, a submission was made recommending that C should not be deported because he could not be returned to Turkey. A senior caseworker decided to make further inquiries. These established that C needed to make a formal application to be treated as stateless before he could be treated as stateless. Also on 21 April 2016, the caseworker emailed RL. She said she was preparing a submission not to pursue deportation action against C, but thought she would have ‘one last stab at trying to get some advice about this complicated case’. She asked whether the Turkish authorities could be approached again. She had tried, but all the contacts seemed to be old ones. She was preparing the submission on the basis that C was statelessness, but was not sure that she had covered every angle. Her email was in due course forwarded to the right person. RL replied that on the assumption C lost his nationality because he had not done military service, they had recently discovered that there might be provision for the Turks accepting such cases under the terms of the EU Readmission Agreement (‘the EURA’). RL were working on this with colleagues in Ankara and would let the caseworker know of any developments. Ms Hunter explained in paragraph 5 of her third witness statement that in April 2016 the old ETD process was still being used. Although EURA was in force, the Turkish Consulate were still keen to continue with the old system, which was working well at that point. Given the unusual nature of C’s case, RL were not aware that they could use EURA to re-document C until about April 2016.

[22]On 26 April 2016 an HEO SCW recorded emails to Criminal Policy Guidance about ‘our policy on stateless cases’ and to RL Complex Cases and RL Country Liaison and Documentation Team 8 for further guidance. A note by the same HEO SCW on 13 May 2016 recorded CPT’s advice about the process for recognition of statelessness pursuant to Part 14 of the Immigration Rules HC 395 as amended (‘the Rules’). Until such an application was granted, the Secretary of State would continue to treat C as a Turkish national. If the reason for his statelessness was refusal to do national service, he would have to explain why, and make a protection or human rights claim on that basis. He would need to provide documents to confirm why he was stateless, as the Turkish authorities had not been able to ‘due to data protection laws’. It was appropriate in that situation to send out a letter asking C to make a formal application under Part 14 of the Rules. ‘We have evidence that his Turkish nationality has been revoked but the reasons have not been provided within the letter’. The HEO SCW had also liaised with RL Country Liaison and Documentation Team 8, ‘who are looking into the matter regarding [C’s] nationality and we should continue to liaise with them to ensure that this case is progressed’.

[23]On 23 June 2016 there was a meeting at the Turkish Consulate between a consular officer and representatives of RL to discuss EURA. The consular officer had very little information from Turkey which was why they still accepted requests under the existing process. The Vice Consul would write to their ministry to get information about EURA. In one of the emails preceding this meeting, RL said it was being recommended from both the Turkish and EU sides that ‘we follow the process in EURA more closely’.

[24]An amended stage 1 letter was served on C in prison on 12 September 2016. On 13 September 2016, the Secretary of State served on C a notice of her intention to deport him. On 16 September 2016 the file was scanned and sent to GLD.

[25]On 18 October 2016, C made representations in response, some of which, the Secretary of State was later to accept, amounted to a claim for asylum. Asylum interviews were duly arranged for him.

[26]On 3 November 2016, the caseworker emailed RL again. In an exchange of emails, RL said this was a bit more complicated than a ‘Category B’ case as it involved national service and that she would ‘chase’.

[27]On 4 November 2016 there was an OASyS report on C. He was said to be at a medium risk of re-offending and to pose a high risk to the public (especially to female strangers).

[28]A Multi-Agency Public Protection Arrangements (‘MAPPA’) form was completed and sent to the MAPPA team: this was concerned with the position which would arise after C’s release. RL were contacted. ‘Phil’ said he would speak to his senior managers. RL had raised similar cases with the Turkish Consulate before. This case had been raised with them, ‘albeit some time ago. Whilst there is scope for Turkey to accept those who refuse national service under the European Union Readmission Agreement, they have not agreed/replied to our previous requests for readmission/an ETD. It’s likely we will raise this case with the FCO’. Phil promised to provide an up-date ‘shortly’. On 4 November 2016, the caseworker recorded that an asylum referral had been completed and that she would arrange an interview once an SCW had considered the asylum referral. The HEO SCW did so on 7 November 2016 and agreed that C’s representations should be treated as an asylum claim.

[29]On 7 November 2016, the caseworker noticed that the previous deportation order needed to be revoked. She said that ‘we will need to consider whether to proceed with an RR [release referral] in the light of possible removal barriers/pursue ETD’.

[30]There was a MAPPA meeting on 8 November 2016. This noted that C’s representatives had indicated that they were going to make an application on statelessness grounds. ‘Ongoing policy issues with the Turkish authorities’ were noted. There was liaison with RL about these. Paragraph 5 includes, ‘(We need to know whether there are any developments with this); This will inform our decision to make a release referral/detain’. Paragraph 6 says, ‘The possibility of pursuing an ETD (if 5 is resolved) and also because one of the brother’s [sic] has been successfully removed previously – confirmed with OP Jigsaw’. If there was a release referral, C’s father’s address was not considered suitable because of previous incidents there.

[31]Ms Hunter at RL was copied into emails dated 4 November and 8 November 2016, dealing with the case of a person who claimed to be stateless because of refusing to do national service. The Turkish Consulate was said to have advised that it was possible, without going into specifics. EURA was raised. RL chased the Consulate in April and again more recently. The addressee of the email was asked if Ankara could advise the Consulate about this. The author of the email said that the C’s was a similar case, which had not yet been raised with the Consulate. Both were ‘criminals and subject to an extant deportation order’. The email of 8 November from a Foreign and Commonwealth Office (‘FCO’) email address reported that the ‘Turkish DG’ had said at an accession meeting that ‘this was not a problem and cases like this were covered’. She would talk to [name redacted] and see what ‘we can do from this end’.

[32]The Secretary of State served notice of her intention to make a further deportation order against C on 13 November 2016. C’s response to the notice of his liability to deportation had been to say that he was stateless, and that she should not waste time trying to deport him (letter of 10 October 2014). On 21 November 2016, a caseworker made a request for the 2009 deportation order to be revoked. A note on 22 November 2016 recorded that the previous decision to grant DLR in in December 2012 might not have been valid because the deportation order had not been revoked (as we explain below). It was noted that C had claimed asylum on the basis of his liability to do military service. This is compulsory between the ages of 20 and 41. He was 39 but it would be necessary to consider whether his previous treatment for mental health issues would make him exempt. The revocation of the deportation order dated 26 August 2009 was noted.

[33]On 17 November 2016 the caseworker emailed RL for an update, as she was considering submitting a release referral but would need to show that removal was unlikely to be imminent. RL replied on 18 November to say that RL had raised the case with the FCO in Ankara, who were liaising with the Turkish authorities. RL would chase next week to see if there had been more progress.

[34]By 5 December, a release referral was drafted and ready for checking. It was sent to the SEO inbox that day. The caseworker asked RL if there was any more up-to-date information she could take into account. RL replied the next day that they were still waiting to hear from the FCO in Ankara. A further email dated 7 December 2016 which Susan Hunter was copied into said ‘Might not be the easiest of conversations as a starter for you [redacted] another similar case and they have dragged on a little’.

[35]On 8 December 2016 the release referral was to be ‘escalated’ to ‘AD’ (that is, Assistant Director). A minute described as a ‘Referral of case suitable for contact management’ which is undated, but from internal evidence, must have been prepared in early December, recommended that C be released at the end of his custodial term (bundle, page 70).

[36]This minute records that C had claimed asylum on 18 October 2016 and was due to be interviewed about that claim on 10 December 2016. That claim, if refused, would attract an in-country right of appeal. RL were ‘currently liaising with the FCO in Ankara’ who, in turn, were liaising with the Turkish authorities. There was then ‘no timescale for the conclusion of their investigations’. C was at that stage considered to be at Risk Level 2. Historic concerns with his mental health were noted. There had been a transfer direction on 10 June 2014. He had also had such issues in 2010-11. The case had been referred to RL which is ‘assisting with enquiries to the Turkish Authorities’.

[37]The minute continued that C’s removal was ‘not considered to be imminent, nor is it likely to be in a reasonable timeframe’. He had made an asylum claim, which needed to be considered, and it was necessary to establish his Turkish nationality. RL were liaising with Ankara, but there was no timescale for the conclusion of their enquiries. A stage 2 decision would then need to be made, and it was likely that C would have an in-country right of appeal. The risks of release were considered to be high. The minute dealt with proposed conditions of release. The minute noted that C’s custodial release date was 16 December 2016, and recorded that the pre-verification panels held between 3 and 5 October 2016 had recommended C’s release.

[38]C had a screening interview on 8 December and a full asylum interview on 10 December 2016. Also on 8 December 2016, the caseworker emailed RL to enquire why exactly C lost his Turkish nationality. There was an exchange of emails about this time between RL and the FCO about Category C referrals to Turkey. RL had been having difficulties with these, and also with Category A/B responses. RL were hoping to have a meeting with the Consulate to discuss this. Category C referrals concern people who have no documents and refuse to be interviewed (see email replying to an email from the FCO of 12 December 2016). On 13 December 2016 the FCO said that they would be in touch with the MFA (that is, the Turkish Ministry of Foreign Affairs) to find out what was happening.

[39]On 12 December 2016 an AD, David Hervey, sent an email to various addressees. He said that the referral for release had come to him very close to the release date. He said that what was in doubt was:

“… our ability to document him for return to Turkey on the basis that he claims to be stateless…I note that RL are liaising with Ankara over the documentation issue so at present there is still hope that a document will be issued. This is clearly a finely balanced case, but I feel the risks of harm and re-offending currently outweigh the presumption of liberty. We will of course need to liaise closely with RL over the document position because that is the key to the whole case.”

He wanted to know who was dealing with the case so that he could discuss it with them. ‘On the back of this email’ he asked for a ‘3079’ to be submitted to ‘the Gatekeeper’. The email also said, ‘Please also attach the draft release referral in case they decide that detention is not appropriate’. On 12 December 2017 the case owner recorded that ‘RR has been refused by the AD today and therefore I will prepare the detention paperwork’.

[40]Another document suggests that the referral for release was refused by the Strategic Director (‘SD’) on 12 December 2016 (bundle, page 202). There is no copy of any such decision in the bundle. We consider from the documents as a whole that it is likely that the decision was in fact made by the AD (see bundle, pages 513-514, the GCID notes for 12 December 2016, to which the decision of the AD was copied). A note from the Detention Gatekeeper on 13 December 2017 says that a 3079 was to be received from TL Paul Read that day. Once a DGK (presumably detention gatekeeper) decision had been made, Kerry Gaunt should be copied in to any response. The detention paperwork should be sent to directly to her or to Simon Rudd (if the case was accepted). On 13 December 2016, Joan Mitchell, described as the Detention Gatekeeper, asked for the IS91R to be served on C. The file minute which precedes the note of the minute of the decision to detain says, ‘Progress should be made to obtain a document for the subject if the asylum case is refused and further detention be assessed should the documentation process fail again’. C’s mental health issues were noted. If detention was detrimental to his health, ‘this decision must be reconsidered in the light of that fact’.

[41]There is a minute of a decision to detain dated 13 December 2016. The risks of absconding and of harm were high, and the risk of re-offending medium. The minute listed four outstanding barriers to deportation. The first was that C’s Turkish nationality was rescinded by the Turkish authorities on 6 February 2002, and he maintained that he was stateless and could not be returned to Turkey. RL were said to have become involved and were currently liaising with the FCO in Ankara, who were, in turn liaising with the Turkish authorities. An underlined passage says, ‘There is no current timescale for the conclusion of their investigations’. His case would need to be considered by the asylum team. A stage 2 deportation decision needed to be made (if the asylum claim was refused and deportation maintained).

[42]The minute set out the immigration history, including the meeting in 2008 when the FCO advised the deputy head of UKBA to ‘give up on’ their ability to remove C, the decision to cease deportation action in 2012 and to issue a warning letter, followed by a grant of DLR, C’s 2014 conviction, and his asylum claim and interviews. The index offence was described and C’s offending history was summarised. Section 6 is headed ‘current barriers to removal (including documentation and compliance)’. Under the question, ‘When do we expect a travel document…to be issued?) there are three boxes. The third is ‘6+ months’ and there is an x in that box. The assessments of risk of absconding, re-offending and of harm to the public are explained. C is said to be an adult at risk, Level 2.

[43]Section 11 sets out a detailed action plan for the first 28 days of detention. One bullet point is ‘Liaise with colleagues in [RL] with regards to their contacts in Ankara’. Under the heading, in section 12, ‘Recommendation…’, the Secretary of State’s detention policy is referred to. C is said to be fully aware of the intention to deport him. It is considered unlikely that he would comply with any conditions imposed on release or present himself to be deported. He was considered to present a high risk of absconding. The ‘high’ risk of re-offending, absconding and causing harm to the public outweighed the presumption in favour of release. The caseworker proposed that C be detained in order to effect his removal. An ICD.3079 had been ‘quality assured and is now forwarded on to the gate keepers for them to either authorise detention or submit a release referral’. The box on p 94 is headed ‘Authorising officer’s comments, including response to recommendation’ says that ‘A RR was submitted to the AD but he refused this so and requested initial detention papers be completed and submitted’. The signature is illegible. It appears from this document that no decision was made by the ‘authorising officer’, but that he simply transmitted the minute to the AD (presumably, an Assistant Director). The grade of the authorising officer is ‘HEO T/L’.

[44]However, it appears from a further document dated 13 December 2016 (bundle, pp 192-198), that a recommendation to detain was made by the caseworker, Eva Alaneme, and approved by Joan Mitchell from the DGK team. This further document is in the same template as all the subsequent detention reviews. We describe that template in paragraph 50, below.

[45]This document lists, in section 3, the current barriers to removal as ‘Asylum case and documentation’, explained as follows,  ‘Asylum claim,  Turkey has not agreed to issue a travel document as in the past they claimed that his nationality had been rescinded’. Against ‘Travel Documentation Status’, the form continues, ‘Issues surrounding Turkey claiming subject lost his nationality in 2002. He is not compliant with the documentation process’ and, against ‘Overall assessment to removability and any other factors not previously accounted for including country situation and estimated timescale to resolution’, the form says ‘There is currently no timescale for removal due to difficulties securing a travel document. However enquiries are ongoing and ‘RL’ are liaising with Turkish authorities in an effort to secure the required documentation’. This section is repeated, word for word, in all the subsequent detention reviews.

[46]In section 1, under the heading, ‘Recommendation…’, the text appearing in section 12 of the detention minute is repeated. The authorising officer’s comments ‘including response to recommendation’ list C’s historic convictions, and his two recent convictions. C had previously been issued with a deportation order, but ‘this was revoked as it was decided that he be granted DL. But now we are considering deportation after his latest conviction’. His asylum claim is referred to and the fact that the asylum interviews had taken place. ‘A RR was submitted to the AD but he refused this and requested Initial Detention papers be completed and submitted’. The authorising officer records no response to the case owner’s recommendation.

[47]The notice to detainee dated 13 December 2016 says that it had been decided that C should stay in detention because ‘There is insufficient reliable information to decide on whether to grant you temporary admission or release’ (box c). Box 7 is also ticked as the basis for that decision, ‘Your unacceptable character, conduct or associations’.

[48]On 20 December 2016 RL emailed the FCO to ask if they had found out anything about Category C referrals. RL wondered if the inbox was being monitored. RL were meeting the Turkish Consul the following afternoon and would raise Category C referrals then. On 21 December, the FCO said that they had spoken to MFA and they would like to see the pending cases ‘so that they can check where the process got stuck’. The FCO said they would send the lists of Category C referrals to the MFA on 21 December 2016. The inboxes were correct, but there had been ‘many changes at these institutions since the summer time due to events in Turkey. This is probably the reason why our referrals got stuck’. This is a reference to the attempted coup in Turkey in summer of 2016 and to the disruption caused by the Turkish Government’s reaction to it (see further, paragraph 7 of the witness statement of Susan Hunter dated 8 May 2017).

[49]On 22 December 2016 Susan Hunter was copied in to an email from a Home Office email address. This referred to a meeting at the Consulate the previous day. It was a helpful meeting. The Consulate said that they had received responses to some Category C cases. The author of a further email of 22 December 2016, from RL to the FCO, copied to Susan Hunter, said she had raised C’s case at the meeting, but ‘didn’t really get anywhere’. The Consulate thought such cases were for Ankara to deal with and that the case was too old for EURA. She would comply with an instruction from Ankara to issue an ETD, but thought a much higher-level decision needed to be made in Ankara. ‘She mentioned, however, that the policy on has now changed on taking away citizenship of those refusing military service and Turkey now wish to return such individuals asap. But not this one.’ RL asked the FCO whether they could make enquiries in Ankara about how this case should be handled in view of the information from the Consulate. Also on 22 December an internal FCO email was copied to Susan Hunter. This said that its author and the MFA did not have any idea about these cases. The MFA would look into them and report back. Its author was waiting for a current MFA email address.

[50]C’s detention was reviewed on 16 January, 10 February, 13 March, 7 April, 8 May, 1 June, 29 June, 26 July, 23 August and 23 September 2017. The reviews are all on the same template, which begins with sections on biodata and the referral (Sections 1 and 2). Section 3 is headed ‘Barriers’, section 4 ‘Case Progression Current Action owner to progress and remove barriers’, and section 5 ‘Detention and Compliance’. This rehearses the history of the case, with the most recent developments at the end. The next, un-numbered section contains assessments under the Secretary of State’s Adults at Risk Policy, and of breaching bail conditions, of harm and of re-offending. Section 6 is headed ‘Decision to Detain’, refers to section 55 of the UK Borders Act 2007 (‘the 2007 Act’), and contains the caseworker’s recommendation ‘including what is required next for this Removal/Deportation?’. The recommendation in this section in all the reviews is in the same terms as the recommendation in the detention minute of 13 December 2016. There is also space in section 6 for the authorising officer’s comments, and for ‘Detention Gatekeeper’s comment’ and ‘Sign Off’. Section 7 is headed ‘Case Progression’ and Section 8 ‘Detention Review and Sign-Off’. This has space for the comments of the previous authorising officer (which, in each review, are simply copied from the previous template), of the caseworker (which are in the same terms as the recommendation in section 6, for the first two reviews), and of the current authorising officer.

[51]A GCID note for 11 January records that C would not fully comply with his induction and was very argumentative and rude:

‘Does not want to return’

. On 16 January 2017, the FCO sent an email which was copied to Susan Hunter. Its author had had to make a few phone calls to ‘explain this to the MFA’. They had checked their files and EURA. There was a letter of intent from 2012 about the United Kingdom taking part in EURA, which they would ‘share’. This was to ‘figure out’ how the return process would work. The details were vague and the author of the email would check with DGMM [the Directorate General of Migration Management] who are the implementing authority for EURA. The FCO would talk to DGMM to clarify the process.

[52]In the January review, the caseworker’s comments are recorded in section 8, in terms very similar, but not identical, to section 12 of the detention minute. A significant difference is that she refers expressly to the presumption in favour of release in the Adults at Risk Policy and in the Enforcement Instructions and Guidance, and had ‘weighed this against the imperative to protect the public from harm, the risk of re-offending and of absconding and based on the evidence and factors set out above propose that detention is maintained in this case’. Also in section 8, against the question, ‘28 day Authorising Officer Maintain detention?’, on 16 January 2017 the authorising officer said that C had been convicted of rape, ‘a serious offence which outweighs any presumption of liberty’. The officer noted C’s ‘prolific and serious history of offences’, many committed while he was subject to court orders. He had a clear propensity to offend and to re-offend. He had been warned many times that he could be deported and seemed to have ignored those warnings. ‘I note the difficulties around documentation and the ongoing work with RL and the FCO’. The asylum claim should be prioritised with the deportation decision. ‘Due to the seriousness and regularity of his offences, [C] has been assessed as posing’ a high risk of absconding, re-offending and subsequent harm. ‘In the light of this, I agree with the assessment and proposal. The presumption of liberty is outweighed’ by those risks.

[53]A GCID note for 31 January 2017 records ‘issues to address going forward’. Those include ‘RL needs to be contacted for an update on removals to Turkey (where statelessness has been claimed)’. The case owner had asked for a medical report from the prison. C’s representatives had said he was suffering from unstable personality disorder. She was sceptical about a claim that C’s family provided him with support, as there was no evidence of that. There were no representations from members of his family. There was no evidence, either, that he was ‘drug rehabilitated’ and therefore not at a high risk of re-offending. She had arranged for C’s asylum claim to be considered ‘in-house’. A further note of that date records that the case owner contacted RL ‘for an update on their investigations and enquiries with the Turkish authorities’.

[54]The caseworker emailed RL on 9 February 2017 to see if there was any update and whether ‘we can state that [C] is removable within a reasonable timescale’. She wanted to provide an update on what progress, if any, had been made with the FCO, Ankara (or any other line of enquiry) and what developments if any there had been.

[55]In the February detention review, the authorising officer reported that C had “… an extremely poor and serious offending history and deportation action is clearly justified and proportionate. We need to deal with the further representations as quickly as possible and liaise with RL over documentation issues. Whilst this is being done and in the light of the risks highlighted above, I agree with the proposal. The presumption to liberty is outweighed by the risks…”

[56]On 13 February 2017, RL sent an email to the FCO about this case, asking for an up-date. RL were still waiting to hear from the FCO in Ankara about this case. They were in the process of drafting a release referral, and wondered if there was any new information they could take into account. They would need to show that his removal was not imminent. An up-date on bi-lateral or EU initiatives would be helpful. The FCO replied the next day. They had been chasing this up with the Turkish authorities. The cases used to be dealt with by the MFA, but they had been handed over to the DGMM, who seemed not to understand these cases, perhaps because they had not been prepared for the hand-over. They had finally received an email address from DGMM. They were meeting with the DG DGMM on Friday, ‘and we will be raising this with him then. Hopefully we will then start seeing progress’. RL then asked whether they should send the backlog (a minimum of 40-50 cases which had been going on for a year) to DGMM. The FCO said they should, and they could raise the cases with DG DGMM at the meeting.

[57]On 10 January 2017, C had made a formal statelessness application under the Rules. That application was refused, without a right of appeal, on 15 February 2017, on the grounds that he had an outstanding asylum claim, and his application under the Rules could not be considered until his asylum claim had been finally determined.

[58]In the March review, the officer authorising detention said that C had ‘been convicted of the very serious offence of rape, and as such, particularly substantial weight should be given to the issue of public protection’. Furthermore, C was a MAPPA Category 2 case, and subject to a SOPO. C was a prolific offender with a serious history of offences dating back to 1994 who ‘has shown a clear propensity to re-offend’. His offences were referred to. He had been warned that deportation could be pursued if he continued to offend. The officer noted the ‘difficulties around documentation and the ongoing work with RL and the FCO’, and that the asylum claim had been refused. The officer concluded that the risks meant that the presumption of liberty was outweighed and authorised detention for a further 28 days.

[59]In late March 2017 there was an exchange of emails about Category C applications. Caseworkers had been asked to resubmit such applications to a new inbox. There had been an influx of ‘Cat C chasers’ as applications had been sent months ago and there had been no reply. The author of an internal FCO email dated 24 March 2017 said that he thought that the Turkish authorities were ‘still in the process of establishing a proper system’. So far three different options had been provided and they were trying to learn ‘which path is the right one’. If they could not get enough clarification, they would have to raise it with ‘DG DGMM’. They would then brief the addressee.

[60]On 28 March 2017, RL sent an email asking for progress. They had just been copied into a memorandum of understanding agreed with Ankara ‘which suggests co-operation on returns’. There might be challenges but RL were ‘constantly being bombarded with requests for updates on ETDs submitted months ago to Ankara’. The FCO replied on the same day. A meeting was arranged the following week with the DGMM. The FCO asked for a list of cases to raise, and said ‘Any special note about a specific case would be welcome’. An email later that day to Susan Hunter said ‘We are now at the stage of escalating the Turkey issue’ and asking for ‘stats’.

[61]On 31 March 2017, a caseworker who was dealing with C’s application for judicial review emailed RL asking for an update on the status of the negotiations with the Turkish authorities about the issue of an ETD. This would indicate the likelihood of C’s removal. On 7 April RL sent an email saying that RL had chased the Turkish authorities requesting a quick response because of the urgency of the case. The caseworker was told to keep an eye on CID for an update.

[62]On 29 March 2017 the Turkish Embassy had emailed the Home Office. ‘As you know, through [EURA] UK has been returning some Turkish citizens. However, the forms that are currently being used by the UK are not the right ones’. The correct form was attached. A further email to similar effect was sent from an MFA address to a redacted address on 3 April 2017. The emails were forwarded to the Home Office by the FCO. The Home Office replied on 3 April 2017. They had been liaising with colleagues in Ankara for some time about the new process. They had sent two forms (the old form and the EURA form), and had been waiting for a response about which one to use. There had been no response, but they were meeting DG DGMM the following week about the process. The Home Office would contact MFA to say they would use the EURA form and to check whether to send it to DGMM or to MFA.

[63]In the April review, the caseworker’s comments in section 8 changed. She said C had been convicted of a very serious offence and that particularly substantial weight should be given to the public protection. She said that he was a MAPPA Category 2 case and was subject to a SOPO. He was a prolific offender with a serious history of offences going back to 1994. He had shown a clear propensity to re-offend. He had 27 convictions for 54 offences. Many had been committed while he was subject to court orders. He had been warned many times that deportation could be pursued if he continued to offend and appeared to have ignored those warnings. She noted the difficulties ‘around documentation and the ongoing work with RL and the FCO’. She noted that the asylum claim has been refused and was awaiting approval. She referred to the high risks he posed. The presumption of liberty was outweighed. She agreed with ‘the assessment and the proposal’.

[64]It looks as though this ‘case owner’s recommendation’ has in fact been copied and pasted from the comments of the officer who authorised continuing detention in the January review. This is copied again into the space for the case owner’s recommendation in section 8 of the subsequent reviews. The comments of the authorising officer are that C is a very serious offender. His sentence is mis-stated (7¾ years). His poor offending history is accurately described. ‘What is in doubt however is our ability to document him…on the basis that he claims to be stateless. I note that RL are currently liaising with the FCO in Ankara …so at present there is still hope that a document will be issued. I note that a release referral was rejected by the AD in December 2016’. The officer considered the presumption of release as stated in the relevant policy, and agreed the proposal. Some of these comments seem to have been copied from the AD’s decision of 12 December 2016.

[65]On 19 April 2017 a caseworker emailed RL, asking for an up-date, and RL emailed the FCO. RL sent the FCO an email on 19 April at 14.15 about C’s case. The email referred to Turkish citizens who had not done their military service, making them effectively stateless and irremovable. C’s case was attracting attention because he was suing for unlawful detention. The main reason for continuing detention was the lack of a document to return him on. RL said that the FCO might be aware of the changes in DGMM and MFA, and the use of EURA ‘which up to now has not been used’ which did provide for return in such cases. However, this had now been going on for a year, with no progress. RL’s contacts were hoping to meet MFA/DGMM the following week, although the meeting had been postponed many times to find out the position with EURA. ‘Once we go forward with this system there should be provision to return’.

[66]An email was sent to RL at 13.18 on 19 April 2017 (possibly from the FCO). Its author said that this was a long-standing issue. The case probably fell under EURA but ‘currently there are a number of problems regarding the implementation of this agreement due to newly established structures in Turkey and problems of division of work between [MFA] and [DGMM; part of the Ministry of the Interior]. We had been trying to sort this problem out for a while by meeting partners and trying to find out how the referral system should work’. The email said that there was a meeting with the MFA on 21 April ‘to finalise discussions’. They had asked for a full list of pending cases. RL would be updated on ‘the exact procedure for readmission requests’. A further email from the British Consulate General on the same day confirmed that they had no access to Turkish systems.

[67]On 20 April 2017, RL sent an email. This said that RL had had a reply from Home Office officials in Turkey about C’s case. Officials were having a meeting with the Turkish authorities on 21 April and would update RL as soon as possible. In the meantime, the author of the email was discussing other options with colleagues as he/she was ‘interested in solving this long standing issue’.

[68]On 21 April 2017, the FCO emailed RL. The author of the email had had a meeting with MFA about the readmission process. The meeting was very positive. It seemed that agreement had been reached on a common practice. The requests should be made to the Turkish Embassy in London. The requests would then be sent to MFA in Ankara, which would share them with DGMM. It might take a while to clear the backlog but they would act as quickly as possible. Some people might need to be interviewed at the Turkish Embassy in London for verification. The technicalities could be discussed in due course. Someone in the Home Office then emailed Ms Hunter:

‘Sounds good. Can you check the EURA form we are using is the correct one, please’

. On 24 April 2017 RL sent an email which said that there were ‘various Turkey meetings’ that week at which RL hoped to get a clear idea how this and other issues would be resolved. RL would keep the recipient updated.

[69]On 26 April 2017 the Home Office emailed the FCO, for confirmation whether C’s case and similar cases had been raised at the meeting with MFA. The matter was urgent, as the Home Office were being asked to provide a witness statement. The author of the email had a meeting that Friday with the Turkish Consulate to discuss the process for EURA and would also raise this. However, when the author of the email raised this with the Consulate at his/her ‘last – and only – meeting with them in December they were firmly of the view that MFA (or now DGMM?) only could deal.’

[70]On 28 April 2017, RL sent an email about C’s case. Its author asked the addressee to fill in, and return, the attached EURA form.

[71]RL emailed two MFA email addresses on 2 May 2017, referring to the previous Friday’s meeting. We infer that one of those addresses was that of the consular officer at the Consulate in London. The email had a list of what had been discussed at the meeting, and of what still needed to be done. RL would contact all caseworkers and send MFA an updated list of Category C cases. MFA were asked to provide the email address to which the applications should be sent. At the meeting, MFA had not been sure whether the Embassy or the Consulate would be dealing with the forms. RL would ask caseworkers to re-submit applications on EURA forms, even though the applications had already been submitted ‘years ago’ on the forms which had then been used.

[72]MFA had agreed to interview the applicants so that the applications did not need to be sent on to Ankara as Category C. RL attached lists of the cases RL, and MFA, believed to be outstanding. It seemed that the total was 56 cases. MFA would send future agreements by email rather than by fax (which was no longer possible for RL). The MFA contact would be on leave between 12 and 31 May and would give a contact for that period. RL looked forward to getting details about the Category C process, in particular the email address to which RL should send applications for consideration by Ankara.

[73]RL emailed various addressees on the same day, forwarding the email about the meeting. RL’s comment was ‘Unfortunately we seem to be no further forward on the process’. RL had expected to find out who at the Consulate to send the EURA forms to, as the Embassy had indicated the they would be handled by the Consulate, but the consular officer did not know. She ‘had no idea’ who they should be sent to in Ankara. She did agree to look at cases to see if any could be interviewed and not sent to Ankara. ‘…it wasn’t all bad, but not what we were expecting. We seem to be no further forward on any category of case and this has been going on for some time now. We are continually being chased by caseworkers as to why it takes so long for Turkish cases to be handled and we are starting to find it hard to explain’. The consular officer says that ‘she is too busy but I don’t think this is acceptable for much longer’.

[74]On 4 May 2017, the FCO sent an email, copied to Ms Hunter. The FCO had sent the ‘readout of your meeting’ to its contacts at MFA in Ankara. The FCO had asked them to set their internal structure and to tell their colleagues in London about the Ankara contact for requests. She had also asked about resources at the Consulate in London as the consular officer (?) was ‘busy’. They would have to sort it out and it was not ‘acceptable to us for much longer’. The FCO were waiting to hear from MFA in Ankara, and would call them if there was no response by the end of that day. MFA said that the process worked smoothly with other EU countries: ‘Hopefully we will sort this out’.

[75]In the 8 May 2017 review, which was given to us in the hearing, the authorising officer’s comment referred to C’s two recent convictions. Particularly substantial weight should be given to the issue of public protection. He had shown a propensity to offend and had been given many warnings. The officer noted ‘the difficulties surrounding [C’s] documentation, including non-compliance with the process, and ongoing work with RL and the FCO’. The stage 2 deportation decision had been done and should be served soon. In the light of that, he agreed with the assessment and proposal. The presumption of liberty was outweighed by the risks.

[76]On 12 May 2017 RL emailed, it seems, an MFA email address. RL wanted to know who to contact when the addressee went on leave and whether it had been decided which inbox the Category C EURA forms should be sent to. One such application was attached, C’s. The reply, from an MFA email address was ‘We are still gathering information about the new process’. An MFA email contact address was given. Someone in the Home Office sent an email to RL with this contact address, and said, ‘Still no email address for cat C EURA forms to be sent to so all we can do is collect them in the ‘new process’ folder initially checking whether they qualify for Cat A’.

[77]On 18 May 2017, C was served with a stage 2 decision, and given an in-country right of appeal. He lodged an appeal on 2 June 2017, which was listed for 27 June 2017.

[78]In the first June review, on 1 June 2017 (this is not entirely clear as the authorising officers’ comments are not dated; bundle, page 233) he said that C had been convicted of ‘serious offences. As such, particularly substantial weight should be given to the issue of public protection. He has shown a propensity to re-offend and received numerous warnings about his offending. Therefore there is a high risk of re-offending.’ A deportation order had been signed and served. His case had been referred via the DIA [detained immigration appeals] process. In the light of that, he agreed with the assessment and proposal. The presumption of liberty was outweighed by the risks.

[79]On 6 June, RL emailed the consular officer asking for an update on the email address for applications.

[80]On 7 June 2017, RL emailed the British Embassy in Ankara, saying that it was some time since they had been in touch. Their contact at the Consulate had been out of the office for 3 weeks, and they had not, in her absence, got details of the in-box to which EURA forms should be sent. RL had chased yesterday, with no response. RL asked whether the FCO had heard anything. RL was conscious, having had to prepare a witness statement, of the need to ‘demonstrate that we are pushing the authorities’. The Embassy replied that they had heard nothing since their discussions with MFA in early May. MFA had then agreed that they would contact the Embassy in London ‘to make sure that all the arrangements are in place and there is enough human resources. I thought the system was running smoothly as I haven’t heard from you for a while’. The author of the email would call ‘the team here’ to check what was happening. If that did not work, the DHM (Deputy Head of Mission) would be asked to speak to MFA.

[81]RL emailed another MFA address on 8 June 2017 about its attempted contact with the consular officer on 6 June. RL had also tried calling the consular officer. RL were a little concerned that they had heard nothing about the email address they should send applications to. The consular officer replied on 12 June. She had been unwell. She had spoken to MFA just before her annual leave. ‘They suggested a long procedure for All return cases. Before start that way, I do want to make sure that is the only way’. On 12 June 2017, RL emailed the FCO complaining about lack of progress. The email expressed anxiety about criticism and potential liability to pay compensation. RL had had no information for at least a month, during the absence of the consular officer. It was time to put pressure on ‘Embassy/DGMM/MFA to organise a process as this has been ongoing for months now’.

[82]On 16 June 2017, RL emailed an MFA address (we infer, the address of the consular officer) for an update, apparently about a Category B case. The reply was ‘We are waiting instruction from the Ministry..Meanwhile I am not able to complete cases. You will be informes as soon as possible’ [sic].

[83]On 18 June 2017, the Secretary of State refused C’s protection and human rights claim, decided that C did not fall in any of the exceptions in section 33 of the 2007 Act, and to maintain the decision to deport C. She also made a deportation order. The Secretary of State decided that C was not entitled to the protection of the Refugee Convention because he had committed a ‘particularly serious crime’ and constituted a ‘danger to the community of the United Kingdom’. The Secretary of State certified that the presumption in section 72(2) of the Nationality Immigration and Asylum Act 2002 applied to C. The Secretary of State then considered, and refused, C’s humanitarian protection claim.

[84]The decision letter recorded C’s account in his asylum interview that he had never worked, had got into drugs at an early age, had been smoking crack cocaine the whole time, and committed crimes to fund his habit. The only time he did not do drugs was when he was in prison. As soon as he smoked crack, he completely changed. His history was all shop lifting, theft, burglary, all stuff to get money for crack. Although he had been in the United Kingdom for 24 years, as a drug addict, he had either been high on drugs or in prison. His life had been a waste. He understood that the maximum age for military service in Turkey was 41, he was near that limit and his medical conditions would make him unsuitable for national service. The Secretary of State refused the protection claim on its merits, but also concluded, in any event, that C was excluded from humanitarian protection by paragraph 339D(iii) of the Rules, because he had committed a ‘serious’ crime. She refused DLR on medical grounds and C’s article 8 claim. The article 8 claim was based on C’s long residence in the United Kingdom, and on the presence of other adult members of his family. There was no supporting evidence from them. The Secretary of State noted that one of C’s siblings had already been deported from the United Kingdom.

[85]The decisions attracted an in-country right of appeal, and C duly appealed.

[86]On 19 June 2017, RL replied to the email of 16 June 2017. This was a Category B case, and so not subject to the new process. RL also asked for news about when the email address for the Category C cases would be agreed. RL described the apparent ‘stalemate’ about this. RL would again refer to Ankara that day, who would liaise with MFA and DGMM. RL would be grateful for any information as ‘…we really need to progress on these cases’. On 20 June, RL emailed the Home Office, attaching that exchange of emails. RL was being chased ‘weekly’ by caseworkers. There were two high profile potentially stateless cases, in one of which RL had had to write a witness statement explaining lack of action by the Turkish authorities. RL were still waiting for an email address for EURA applications, but it also seemed that other category applications, normally dealt with by the Consulate in London, were not being dealt with. RL wanted to know how the situation could be escalated.

[87]The Embassy in Ankara replied on 21 June 2017. They had asked for a meeting with MFA to escalate the situation. The DHM would do the meeting. MFA said that the manager responsible was out of the country but would be back the next day. They would provide a meeting day ‘asap’. It was suggested that RL write to the DHM at the Turkish Embassy in London about what was going on and to say that there was to be a meeting with MFA in Ankara.

[88]On 26 June, RL emailed an MFA email address to ask whether there was any update on the meeting between the Consul General and the Embassy the previous week. RL were under pressure to process applications. A reply the same day said, ‘I will inform you as soon as I receive update’. On 27 June 2017, RL emailed the Ankara Embassy to ask if the meeting had gone ahead. There had been a meeting at the Embassy in London and RL had asked for an update on that. RL suspected that nothing had been agreed.

[89]In the second June review, on 29 June 2017, the authorising officer noted that C’s appeal against the refusal of his asylum claim was scheduled to be heard on 27 June 2017 and that the outcome would ‘dictate how this case progresses’. In the light of that, ‘the risks highlighted above and his highly disruptive behaviour in detention,’ he agreed with the assessment and proposal. The presumption of liberty was outweighed by the risks.

[90]The British Embassy replied to RL on 3 July to say that the meeting was that day. On 4 July 2017 the Embassy sent a further email. They had met MFA the previous day, and explained their frustration. MFA had reassured them that they would ‘look at this very carefully’. The Head of the migration department at MFA said she would speak to the Embassy in London and ‘sort out the problem’. It seemed that ‘they are doing larger volumes with other EU countries and there is no problem’. The Ankara Embassy would chase them regularly, and asked RL to let them know when they sent a request to the London Embassy so that ‘we can push here and make sure it goes into the system. I think we will need to do that at least in the beginning of the process’. Also on 4 July 2017, an internal FCO email said that its author had never heard back formally from the Turkish DHM in London. ‘Happy to follow up with him again. He owes me a few favours’.

[91]RL emailed the Embassy again on 4 July 2017, to make clear that they could not send any applications to the Ankara Embassy as they had no email address to send them to. ‘The current process has stopped effectively. The consular officer said that the relevant email address was being discussed at a meeting between ‘CG and Embassy’ two weeks previously. RL had chased her last week but been told there was no progress. RL’s impression was that the Consular section did not want to handle these applications and the Embassy did not have resources to, so there was stalemate. RL had ‘a growing number of applications with nowhere to go’. In the light of a recent conversation with the consular officer, RL also asked for clarity about whether the EURA process would replace all categories of application, or just Category C.

[92]The FCO replied on 4 July 2017, also apologising for lack of clarity. MFA agreed to push their colleagues in London for a working process with responsible people in place and then to get in touch to inform. MFA would investigate the Embassy’s ‘hesitancy’ to handle applications. Then ‘hopefully we will have a process in place and we will chase MFA here once you start sending the applications. But they need to sort it out among themselves’. MFA had said all categories would be under the EURA process. The FCO would check whether MFA and the London Embassy had talked to each other.

[93]Also on 4 July 2017, RL emailed, we infer, its contacts at the Turkish Consulate in London, referring to the meeting in Ankara the previous day between MFA and the author’s colleagues in Ankara. It seemed that ‘the EURA process needs to be established by the Embassy/Consulate’. RL would be grateful for an update as a backlog of cases was building up and they needed to report progress.

[94]C’s appeal was allowed (on 7 July 2017) on a curious basis. The First-tier Tribunal (‘the FTT’) did not engage with the merits of C’s protection claim. Instead, it remitted the claim to the Secretary of State for her to reconsider it, on the basis that she had erred in law in not considering, in the context of the asylum decision, C’s claim to be stateless. Mr Denholm frankly accepted that it was doubtful whether the FTT had jurisdiction to allow the appeal on that basis. But the Secretary of State did not appeal against the decision of the FTT. She has accepted that she must reconsider C’s protection claim and his claim to be stateless. She also accepts that that reconsideration, if adverse to C, will generate a further in-country right of appeal. Mr Evans told us that, as in the case of the first recent appeal, any such appeal could be dealt with quickly under the DIA. We note that the first appeal was listed for hearing within 4 weeks of the date when it was lodged. The outstanding protection claim is a legal barrier to C’s removal, and any appeal against any adverse decision on that claim would also be such a barrier.

[95]On 10 July 2017 RL emailed the FCO to say that there had been no reply to an email last week to the Consulate/Embassy. It would be useful to know if there had been any response from the Turkish DHM in London. RL were getting requests for updates but were unable to respond because of the stalemate. RL sent a further email to the FCO on 18 July, chasing news, and repeating that the author of the email was going to have a meeting with his/her manager to discuss the stalemate.

[96]On 18 July 2017, RL re-sent its email of 4 July to the Turkish Consulate, expressing uncertainty about whether it had been received, as there had been no reply, and suggesting a meeting about the EURA process early the following week. Also on 18 July, RL sent an email to the FCO asking whether there had been any contact with the Deputy Ambassador in London or further contact with MFA about whether the Embassy or the Consulate would handle EURA applications. Its author was about to ask for a meeting to discuss the stalemate. The FCO replied that day. At the end of the previous week there had been no news. MFA had told the FCO a couple of weeks previously that they would press the Turkish Embassy to respond to RL. Pressing for direct contact would be a good idea. Further emails that day exchanged ideas for contacts on the subject. RL sent a further email to MFA on 19 July, asking for a meeting to discuss the EURA process. RL still did not have an email address to send applications to. There had been a meeting in May, but there was confusion about whether the Embassy or the Consulate would handle applications. RL had about 100 applications outstanding. The new process was introduced some months ago, but RL seemed to be no further forward. MFA replied, agreeing to a meeting on 26 July at the Consulate General.

[97]The meeting took place. RL sent an email dated 26 July 2017, summarising what had been agreed. ‘We now have a process for progressing Turkish ETD applications on the EURA form’. RL had a backlog of about 80 cases. The old system had taken 15 days to process applications. MFA/DGMM had not indicated how long the new process might take. The applications were to be sent to ‘your email address for onward transmission to MFA’. Some cases could be interviewed in London. MFA would send the applications to DGMM. RL would track progress with their colleagues in the Embassy in Ankara. The email recorded a concern expressed by ‘Fatih’ that RL would send ETD applications where all legal avenues had not been exhausted. RL confirmed that applications would be submitted when the applicant had no legal right to be in the United Kingdom ‘We acknowledged that an applicant may submit an appeal’ after an ETD application had been made ‘but this does not affect our decision to apply for an ETD’. RL asked to be told when the applications were sent on to MFA, and to be told which applications could be handled internally without being sent to MFA.

[98]In the July review, on 27 July 2017, the authorising officer agreed with the proposal and that the case owner had considered the presumption of liberty. She noted the panel recommendation (it is not clear what panel she is referring to) in favour of maintaining detention. She referred to C’s 2014 convictions. She said that on 5 July ‘the appeal was allowed for us to reconsider our decision on his Statelessness by the Asylum Caseworker as this was part of his Asylum claim’. She referred to a catalogue of disruptive behaviour in detention, his MAPPA Category and the fact that he was subject to a SOPO. The presumption of liberty was outweighed.

[99]Up until the July review, the assessment of risk of harm in Section 5.4 by the case owner was ‘High’ because he had ‘previously tried to self harm and has acted aggressively to others’ In the July review, there is a long entry, describing his recent behaviour in the Immigration Removal Centre (‘IRC’). He had been very abusive to staff on several occasions.

[100]There was a slightly testy exchange of emails on 7 August between RL and MFA about process issues such as whether applications should be sent by email or by post. RL told MFA that RL needed to know what the process was going to be, which was why they had a meeting a few weeks ago. RL explained various concerns, including the large volume of outstanding application on which no progress had been made for months. The MFA address replied, acknowledging his/her correspondent’s concern and said that he/she was not happy with the changes either. He/she was trying to do everything correctly as his/her correspondent knew. He/she had contacted colleagues in Germany to see what they do, and they interview all applicants. It was obvious how slow the process would be if that were done. Another meeting was possible. RL replied on 8 August 2017. RL were ‘very keen’ to make progress after their meeting and the previous day’s email exchange. RL raised three detailed questions about the process. C’s case was one of the 10 cases on EURA forms sent on 28 July 2017. The cases had been referred before, but it had never previously been said that C needed an interview. Why could his, and other cases, not simply be sent to Ankara? RL was keen to ensure that the EURA process worked as smoothly and quickly as it does in other countries, and to establish a timeframe for the handling of applications. It was therefore important to track all applications, in order to identify any blockages.

[101]RL emailed a Home Office email address on 8 August 2017. RL referred to the meeting on 26 July and to the lack of progress with the consular officer since then. She seemed to want to interview most applicants. It was all very frustrating as it was months since they had had a Turkish ETD agreed. RL were constantly being chased about progress on the two stateless cases. The FCO replied on 16 August that it looked as though there was a misunderstanding from the MFA Ankara side. The FCO understood the frustration about the ETDs; ‘we are pushing this so much at this end’. MFA seemed to understand the FCO’s aim in the latest meeting. ‘Will chase today…’. There were several emails on 16 August 2017 between RL, the FCO and MFA to arrange a meeting. A meeting was eventually arranged for 25 August 2017.

[102]RL asked the FCO for an update on 21 August 2017. The FCO emailed on the same day. They had talked to MFA that morning. She was very surprised that we were still struggling and would speak to the Embassy that day. She would make sure that x spoke to y. The only request Ankara had made to London was that there should be no barriers to removal. A statement from the Home Office to that effect would do. She said that the Post would decide who to interview. Posts were sensitive about interviews because they had had some false requests.

[103]Continued detention was authorised again on 23 August 2017. The officer authorising detention gave reasons why the presumption of liberty was outweighed. He referred to C’s offences and the risks he posed. He referred to C’s mental health problems and that he was classed by the Home Office as a Level 1 risk. His appeal had been allowed to a limited extent. The issue of statelessness must be considered as soon as possible. He was ‘satisfied that the Home Office have taken reasonable steps to remove [C] from the United Kingdom’. He suggested that the case be referred to ‘the next available Case Progression Panel for their input’. Mr Evans was not able to help us when we asked what that body was.

[104]On 25 August 2017 there was a meeting between RL and a consular officer to discuss ‘the lack of progress on EURA applications’ since the July meeting. There were 81 outstanding applications. One EURA application had been sent to Ankara since the July meeting, ‘recently’. Ankara’s response was that there was not enough information on the EURA form to enable them to consider the application. Ankara had also asked for a ‘no barriers’ letter on official Home Office paper saying that all appeal rights had been exhausted. It had been repeatedly said in the last meeting that the Turkish authorities should accept that all appeal rights had been exhausted if the Home Office submitted an application. The Turkish authorities were not prepared to accept this. The meeting in Ankara confirmed that applications should be submitted electronically, but the Consulate wanted to be sent hard copies. RL asked why, as the form is electronic, and is emailed to Ankara. This would slow things down, as they were planning to scan the forms in Ankara. The Consulate wanted the photographs sent in hard copy, because Ankara said that London would produce the ETD. They said that the ETD would have to be collected in person (that was impossible in detained cases) and that there would be a further interview on collection. ‘This had not been discussed previously and would seriously delay the whole process’ [original emphasis]. All other countries’ ETDs are currently collected by courier.

[105]C’s case was discussed. The consular officer had said she was not willing to discuss this case as ‘they were under the EURA process only’ and were for the Embassy/Ankara to consider. After the last meeting she had said she needed to interview C before she could submit a EURA. She said if RL could provide the contact details of the applicants and a ‘no barriers’ letter, she was willing to send them on to Ankara. Consular officers said more than once that the EURA process was not a welcome change. But it was agreed that by working together, they could ‘hopefully’ establish a straightforward process; applications could be progressed and decisions effectively made by Ankara. Nonetheless, as the one application sent so far to Ankara had been returned for further information, and new information had emerged (the Consulate, rather than RL, was to provide the ETD), RL needed to send a few more applications forward to get a fuller picture of ‘the further demands that may be made from Ankara’. For the time being, RL should agree to provide ‘no barriers’ letters for the three cases which had been discussed (including C’s). It would be helpful to know from the FCO whether in fact Ankara had specified that the Consulate produce the ETD as that could delay things considerably, and RL had got the impression that it might not be the case. The stipulation for hard copies of applications made no sense, but mattered much less than the question of who was to produce ETDs, RL or Turkish officials.

[106]On 25 August 2017, RL emailed an MFA address. The email referred to ‘our meeting’ and to ‘your/Ankara’s request for further information in the form of a ‘no barriers’ letter. It was unlikely that information could be provided that day ‘due to unforeseen circumstances’. As the addressee was about to go on leave, it would be sent by ‘COP’ if possible. On 29 August 2017, RL emailed an MFA address about this case. Following the meeting the previous week, RL ‘exceptionally provided a “no barrier” letter which confirms that there are no legal barriers to… removal’ in three cases (including C’s). There was a suggestion that an email address could be provided so that applications could be sent by email rather than by post. On 5 September 2017, an MFA address thanked RL.

[107]The GCID note for 29 August 2017, by R Otim, records that RL had rung and said that the Turkish authorities had asked for a ‘NO Barrier’ letter. ‘RL confirm with me if there are barriers to removal which was confirmed as none once we have reconsidered his asylum claim and statelessness’. RL, the note continued, were due to send a ‘No Barrier letter to the Turkish authority, but the warned that there is still no guarantee for an ETD as the Turkish authority are being very difficult but they will keep on chasing them’ [sic].

[108]On 29 August 2017, the Secretary of State wrote to the Consular Section at the Turkish Embassy about C’s case. The letter said, ‘I confirm that there are no outstanding applications or other barriers to removal…. Should any further application be submitted in the future, I can confirm that the Home Office will defer removal until any outstanding application or other barrier to removal has been properly considered and appropriately concluded’ (our emphasis). That letter was written by Ms Hunter.

[109]Contrary to the terms of that letter, there is a barrier to C’s removal, as Ms Hunter accepted in her fourth witness statement dated 9 October 2017. The letter was therefore misleading. She explained that she sought advice from ‘the Home Office caseworker’ to ensure there were no barriers to removal before she wrote the letter. C Otim appears from the notes to be a caseworker. She said that she was incorrectly told by the caseworker that there were no barriers to removal. Had she been ‘advised of this development’ she would not have sent the no barriers letter. She goes on to say that the Turkish authorities had accepted the 29 August letter with the caveat we have quoted above. ‘There is nothing’, she continued, ‘to say that this caveat will not apply in this case. Therefore given that [C] has a current outstanding decision to be made…removal will be deferred until then’. Mr Evans tried to persuade us that the ‘caveat’ applied to the current barrier to removal in this case, which had been incorrectly declared not to exist. We reject that submission: see the first part of the caveat, italicised above. Ms Hunter does not know whether the Turkish authorities will decline to progress the application until there are no barriers to C’s removal. The Turkish authorities had never asked for such a letter before.

[110]On 23 September 2017 C’s detention was again reviewed. The authorising officer said that detention was authorised and was appropriate and proportionate to the risks of further harm to the public of absconding. The asylum claim should be expedited.

[111]On 4 October 2017, the Consulate emailed the FCO to offer an interview with C at 4pm, according to Ms Hunter, on 10 October 2017 (although there is no date on the email). We were told at the hearing (and see Ms Hunter’s fifth witness statement, produced at the hearing) that the interview did not take place because the private contractor who was due to convey C from the IRC to the Consulate did not turn up, apparently because of ‘lack of resources’: it is not clear whose. Ms Hunter then expected that the Consulate would pass the application to the Turkish authorities. The interview, she said, has been re-arranged for 17 October 2017. Ms Hunter also said that the Turkish Consulate would be informed about the barrier to removal ‘which I was made aware of a few days ago’. She did not consider that it would affect the EURA process ‘considering that the letter sent out on 29 August 2017 which envisaged that other barriers to removal may arise and removal would be deferred until they have been addressed.’ The Law Administrative detention

The Law

[112]Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (‘the 1971 Act’) gives the Secretary of State power to detain a person to whom she has given notice of her intention to deport him, until she makes a deportation order. Paragraph 2(3) gives her power to detain a person in respect of whom a deportation order has been made. Section 36 of the 2007 Act applies to those foreign criminals who are subject to the automatic deportation regime created by sections 32-39 of the 2007 Act. C is such a foreign criminal. Section 36(1) gives the Secretary of State power to detain a person while she considers whether section 32(5) applies to him, and where she thinks that it applies, pending the making of a deportation order. Section 36(2) of the 2007 Act obliges the Secretary of State to exercise the power conferred by paragraph 2(3) of Schedule 3 to the 1971 Act (detention pending removal) ‘unless in the circumstances the Secretary of State thinks it inappropriate’.

[113]In Lumba v Secretary of State for the Home Department

[2011] UKSC 12

;

[2012] 1 AC 245

Lord Dyson SCJ (as he then was) re-stated the Hardial Singh principles (judgment, paragraph 22). These are implied limitations on the statutory power to detain, first stated by Woolf J (as he then was) in R v Governor of Durham Prison ex Hardial Singh

[1984] 1 WLR 704

. As re-stated by Lord Dyson (Lord Phillips dissented on this issue), they 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.

[114]It is for the Secretary of State to justify detention (ibid, paragraph 52). A convenient starting point is to decide whether, and if so, when, deportation will take place (ibid, paragraph 103). It is not possible to produce an exhaustive list of the factors which are relevant to the application of the Hardial Singh principles in deportation cases (ibid, paragraph 104). In paragraphs 104-128 of his judgment, Lord Dyson considered some of those factors: the risks of absconding, and of re-offending, the obstacles which stand in the way of removal (such as challenges to removal, and non-co-operation with removal), the diligence, speed and effectiveness of steps taken by the Secretary of State to overcome those obstacles and the effect of detention on the detained person.

[115]Risk of absconding is not a trump card, although it may justify a ‘very long period of detention’ (Fardous v Secretary of State for the Home Department

[2015] EWCA Civ 931

, paragraphs 44-46, per Lord Thomas CJ). In sum, in applying the four Hardial Singh principles to the facts of any case, the court takes a flexible, multi-factorial approach.

[116]It follows that tariffs cannot be laid down, as the weight to be given to relevant factors in each case will vary (Fardous at paragraphs 38 and 40). The court decides for itself whether the period of detention is reasonable. While the court’s role is not to review the Secretary of State’s approach (R (A) v Secretary of State for the Home Department

[2007] EWCA Civ 804

, paragraph 62, per Toulson LJ (as he then was)), there may be some issues, such the progress of diplomatic negotiations, or the risk of absconding, on which on which the court will defer to the assessment of the Secretary of State: see Youssef v Secretary of State for the Home Department

[2004] EWHC 1884 (QB)

and AXD v Secretary of State for the Home Department

[2016] EWHC 1133 (QB)

. The court makes that assessment not ex post facto, but on the basis of the facts that were known to the Secretary of State at the material times (Fardous, paragraph 42).

[117]Lumba makes clear that the Secretary of State errs in law if, without good reason, she departs from her published policy about detention. Mr Denholm did not argue that there was any relevant breach by the Secretary of State of her policy. It is clear to us from the detention reviews that those who authorised C’s initial, and continuing detention, applied the Secretary of State’s policy in making their decisions, so we need say no more on this subject.

The European Re-admission Agreement (‘EURA’)

[118]EURA is an agreement between the European Union (‘the EU’) and Turkey. The relevant provisions came into force on 1 October 2014. Article 3.1 applies to a person who does not fulfil or no longer fulfils the conditions in force under the law of a requesting Member State (‘RS’), or under EU law, for entry to, presence in, or residence on, territory of the RS. If the RS makes an application to Turkey (see further article 7(2)), Turkey is obliged to readmit that person, provided that person is a Turkish national, without further formalities, other than those provided for in EURA.

[119]Article 3.3 also obliges Turkey to re-admit people who, in accordance with Turkish legislation, have been deprived of, or who have renounced, their Turkish nationality since entering the territory of the RS, as long as they have not been promised naturalisation by the RS.

[120]Where Turkey has given a positive reply, or where appropriate, after the expiry of the time limits provided for by article 11(2), the competent Turkish consular office is obliged, whether or not the person agrees, to issue, within 3 working days, a travel document, valid for three months, which provides for the person to be readmitted. If the document is not issued, the reply to the request is to serve as the travel document (article 3.4). If for legal or factual reasons, the person cannot be transferred before the validity of the travel document expires, the Turkish authorities are obliged to issue a new travel document, valid for three months. If a document is not issued, the reply to the application takes effect as the necessary travel document.

[121]The application by the RS must contain the information described in article 8 and it must be made on a prescribed form.

[122]Article 11 provides for time limits. Article 11.1 requires the application to be made to the competent authority ‘within a maximum of six months after the [RS’s] competent authority has gained knowledge that a third-country national or a stateless person who does not or who no longer, fulfil the conditions in force for entry, presence, or residence’. This sentence does not make sense, but its general effect is tolerably clear. ‘That’ should probably be read as ‘of’. There is a proviso. If there are ‘legal or factual obstacles to the application being submitted in time’, the RS can ask for the time limit to be extended, but ‘only until the obstacles have ceased to exist’.

[123]Article 11.2 requires the Turkish authorities to respond to an application relatively quickly (within 5, or a maximum of 25 days, as the case may be). Time may be extended, if there are legal or factual obstacles to a timely reply, to a maximum of 60 days. The time limit may not be extended beyond ‘the initial detention period in the national legislation of the’ RS. Time begins to run when the application is received. If there is no reply within the time limit, the transfer ‘shall be deemed to have been agreed to’. The person must be transferred within three months of Turkey’s agreement to admit the person, or of the expiry of the article 11.2 time limits, as the case may be. The RS may ask for that period to be extended, to deal with legal or practical obstacles (article 11.3). If a request is refused, written reasons must be given (article 11.4).

[124]If the person has no documents, the relevant Turkish authorities shall, if asked by the RS, make arrangements to interview the person ‘without undue delay, within seven working days from the requesting day’, in order to establish his nationality (article 9.3). We consider that article 9.3 must be given a purposive reading. In order to give practical effect to the obligation imposed by article 3.3, the Turkish authorities must be entitled to verify whether those to whom article 3.3 applies were formerly Turkish nationals. We therefore consider that ‘nationality’ in article 9.3 must include ‘former nationality’ in a case to which article 3.3 applies.

Analysis

[125]Mr Denholm made three succinct points in his revised skeleton argument, which he repeated in his oral argument. i) There is at least a prima facie case that C does not fall within the terms of EURA, and that if an application under EURA were substantively considered by the Turkish authorities, it would be refused. This contention rested on exclusively on an argument that the time limit for making an application under EURA has expired. ii) There is a barrier to the consideration of any EURA application because C’s rights of appeal have not been exhausted and will not be for some time. iii) The evidence suggests that EURA is not functioning as it should and that it could not be said with confidence that an application would ever be determined substantively, let alone within a reasonable period.

[126]He submitted that C had been unlawfully detained from the end of his custodial term to date. His fall-back position was that, by July 2017, it was clear, both because of the success of C’s appeal and because of the attitude of the Turkish authorities to barriers to removal, that C’s removal would not be possible within a reasonable further period, given the length of his detention so far. He rightly accepted that, in the light of the emails recently disclosed by the Secretary of State, he could not realistically argue that the Secretary of State has breached the fourth the Hardial Singh principle.

[127]Mr Evans submitted that there were two issues: whether the provisions of EURA applied to C’s case, and whether there had, at all times, been a reasonable prospect that Turkey would provide an ETD for, or re-admit, C. He invited us to hold that EURA does apply to this case, and that there had been, and that there still was, such a prospect.

Does EURA apply to this case?

[128]For the reasons we will shortly give, we reject Mr Denholm’s argument that EURA does not apply in this case. But, in our judgment, there is another significant issue, which is not so much whether EURA applies, but rather (irrespective of the strict application of EURA), whether there has, at all times, been a realistic prospect that the Turkish authorities would grant an ETD, or readmit C, within a reasonable time. We say this because the evidence shows that the Turkish authorities, at least until very recently, have not been complying with the letter of the express obligations imposed by EURA, as respects applications from the United Kingdom. Oddly, such evidence as there is in the emails, as far as it goes, suggests that there have been few, if any, problems with EURA as respects other Member States (see, for example, the emails of 4 May 2017, and 4 July 2017, described in paragraphs 74 and 90, above).

[129]Mr Denholm’s argument that EURA does not apply rested on his contention that the time limits provided for in article 11 have long since expired. We accept that the Secretary of State has known for a considerable time that C’s presence in the United Kingdom was unlawful. His presence in the United Kingdom has been unlawful, at the latest, since his DLR expired in 2015.

[130]Section 5(1) of the 1971 Act provides that the making of a deportation order invalidates any leave current at the date of the deportation order, and any leave granted while the deportation order is in force. It follows that C has had no leave to remain in the United Kingdom since the date when the first deportation order was signed. That deportation order had the effect of invalidating the grant of ILR to him made in 1994, and also invalidated the grant of DLR in 2012, as that was made when that deportation order in force against C. On any view, therefore, the prima facie limit in article 8.1 has expired. The issue, it seems to us, is whether this is a case in which there were legal or factual obstacles preventing an application within the primary time limit.

[131]EURA did not come into force until October 2014. So no application could have been made before that date. Since that date, there have been legal and factual obstacles to the submission of an application under EURA. One obvious initial obstacle was C’s sentence of imprisonment, as that prevented his removal until the expiry of the custodial term. Even after EURA came into force, it is clear from the evidence that Turkey was continuing to accept applications under the former process. During 2016, there was the upheaval caused by the attempted coup in Turkey, and its subsequent impact on Turkey’s institutional arrangements.

[132]Thereafter, there was what can only be described as a period of prevarication by the Turkish authorities about how an application under EURA should be made to them, but no suggestion that such an application could not in principle be made; quite the reverse. It was only on 26 July 2017, after persistent and prolonged interrogation, that the Turkish authorities told the Secretary of State to which email address applications should be sent. An application on the EURA form in C’s case was promptly submitted after that, on 28 July 2017. We consider that, in those circumstances, any contention by Turkish authorities that the Secretary of State could have made an application at any earlier date would be bound to fail. There were, on the contrary, insuperable factual obstacles to the making of any such application. Is there a barrier to the acceptance of an application under EURA, and, if so, what is its impact?

[133]We consider that on the proper construction of EURA, the Turkish authorities are not entitled to insist on a ‘no barriers’ letter as a condition of admitting an application for consideration. The structure of the relevant provisions is that the role of legal or factual ‘reasons’ or ‘obstacles’ is to extend time limits (see, for example, articles 3.5, 11.1, 11.2 and 11.3). But such obstacles do not affect in any way Turkey’s obligations to re-admit. Articles 3.1 and 3.3 of EURA impose unqualified obligations to re-admit. Whether there are legal or factual obstacles to removal is a matter for the RS to determine under national law, which is why, where they exist, and have delayed, either, the making of an application, or removal pursuant to an issued travel document, they can be relied on by the RS to extend the relevant time limits. Such obstacles are not a matter for the Turkish authorities at all. It is regrettable, nonetheless, that the Secretary of State sent a misleading letter to the Turkish authorities about this on 29 August 2017, and we would expect that error to be corrected immediately, if indeed, it has not already been corrected.

[134]In case we are wrong in that construction of EURA, and even if we are not, we should also say that, in practice, for the reasons given in paragraph 138, below, we do not consider that the success of C’s appeal should delay the process for very long. We are therefore not able to hold that the third of the Hardial Singh principle has now been, or will prospectively be, breached by this development.

Will an application under EURA be determined within a reasonable time?

[135]Before we consider whether an application under EURA will be determined within a reasonable time, we must first decide whether C’s detention has been lawful up until now. We bear in mind the gravity of his offending, the risks of absconding, and the risks of re-offending which he poses in the community if he does abscond. We take into account in this regard his account, in his recent asylum interview, of his drug addiction and of its links to his offending. When the Secretary of State decided to detain C at the end of the custodial term of his sentence, the Secretary of State knew that she had been unable to remove him pursuant to the first deportation order, and that she had purported to give him DLR in 2015 because she had then accepted that he was, in practice, irremovable. If those facts had stood alone, she would have acted unreasonably in detaining him. But they did not. We agree with the AD’s assessment that, at that point, this was a finely balanced case. We consider, however, that what RL then knew about EURA and its application to cases like C’s, was a material change in circumstances, and that there was a realistic prospect of removal with a reasonable time at that point. EURA imposes an unqualified obligation to admit people like C (see article 3.3).

[136]Since then, all the decision makers who maintained detention have taken into account the work being done by RL and the FCO to enable C’s removal under EURA. RL and the FCO have energetically pursued all leads. It is notable that the Turkish authorities have not given any formal indication that they will not admit C pursuant to EURA. Mr Denholm emphasised the views of the Turkish consular officer recorded in the email of 21 December 2016. These views were expressed early in the history, and have not subsequently been repeated. They do not reflect the way in which we have construed EURA. We do not consider that, of themselves, they affect our analysis. Throughout C’s detention, the Turkish authorities have been pressed from many, if not all, possible angles, and, after much effort, the Secretary of State has finally been able to submit an application in his case. The attitude of the Turkish authorities has been, not to deny an obligation to re-admit, but rather, to fail swiftly to establish and/or communicate the arrangements by which they intended to comply with their legal obligations. Given this attitude, and the assiduous efforts of the Secretary of State to find out what those arrangements might be, we do not consider that, at any point during C’s detention hitherto, it became clear that removal would not be possible within a reasonable time. At each stage, the appearance was that, if there was one more push, the Turkish authorities would tell the Secretary of State in what form they wished to receive applications, yield up an email address to which they could be sent, and then process the application. Indeed, the very recent arrangement of an interview seems to indicate that the Turkish authorities accept that EURA is engaged, and are implementing it, as an interview is the means by which the nationality of undocumented Turks is verified (see article 9.3).

[137]The arrangement by the Turkish authorities for such an interview might even be consistent with a view that the Turkish authorities accept that the United Kingdom has made a re-admission request for an undocumented person, and an implied request that he be interviewed for the purpose of verifying his identity.

[138]We turn to the success of C’s appeal. That was undoubtedly a barrier to his removal down to the date of the hearing before us. But in our judgment, it is one which was and is capable of being resolved relatively quickly. If an adverse decision is made by the Secretary of State in response to the decision of the FTT, and C appeals against it, on past evidence, an appeal could be listed within a month of the decision. The success of the appeal did not mean that, during the period between 7 July 2017 and the date of the hearing before us, removal would not be possible within a reasonable further period, having regard to the time for which, by 7 July, C had so far been detained. In any event, it was not a free-standing obstacle, operating as it did, and does, alongside the absence of a travel document.

[139]The next question, on the assumption that we are right in deciding that C’s detention was not unlawful down to the date of the hearing, is whether his detention after that would be unlawful, judged from the date of the hearing. We bear in mind that C has now been detained for some ten months, and that no-one has yet been removed to Turkey under the provisions of EURA. We also bear in mind the factors we listed in paragraph 135, above. For the reasons we have given above, we do not consider that the Turkish authorities are entitled to refuse to re-document C so long as there is an obstacle to his removal. Such an obstacle is an impediment to C’s removal which operates in the national law of the United Kingdom, but it does not dilute Turkey’s obligations under EURA. Under EURA, the Turkish authorities are bound to issue a travel document, provided that they accept, despite his lack of documents, that he is (or was) a Turkish national (see paragraph 133, above). But even if we are wrong about that, the existing obstacle is not likely to persist for long, as we explain in the previous paragraph, and not beyond a time which is reasonable, judged from now in the light of the time which has already elapsed.

[140]The main practical obstacle to removal, it seems to us, is not the outstanding application and any appeal it may generate. It is the attitude of the Turkish authorities, and their likely future adherence, to their obligations under EURA. On the basis of recent developments, we do not consider that the point has yet been reached where there is no realistic prospect of removal within a time which is reasonable, in the light of the time which has elapsed already; indeed, we take the view that there is such a prospect. As we have said, the Secretary of State has now been able to make an application to the Turkish authorities. The Turkish authorities have agreed to interview C. Any appeal against the decision of the Secretary of State’s in response to the July appeal determination, if made, is likely to be heard quickly. Conclusion

[141]For those reasons, we dismiss this application for judicial review.

Cited in 1 later judgment

Mustafa Taskiran, R (on the application of) v Secretary of State for the Home Department 2025