Kedienhon, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2017] EWHC 3373 (Admin)

[2017] EWHC 3373 (Admin)Case No CO/1336/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 21 December 2017
Before
ROBIN PURCHAS QC(Sitting as a Deputy Judge of the High Court)
Between
THE QUEENClaimanton the application ofClaimantGREG KEDIENHONClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Ranjiv Khubber (instructed by Turpin & Miller LLP) for ClaimantMr Rory Dunlop (instructed by Government Legal Department) for DefendantHearing Hearing date: 5 December 2017
Judgment ApprovedROBIN PURCHAS QC :Introduction
[1]The Claimant seeks judicial review of his detention by the Defendant under the Immigration Act 1971 (the 1971 Act) from 3rd July 2015 until 13th September 2016, when he was released on bail by the First Tier Tribunal (FTT). The Claimant contends that his detention was unlawful as being contrary to the second and third Hardial Singh principles, that is:(a) That his detention was not for a period that was in all the circumstances reasonable; and(b) That it was apparent that the Defendant would not be able to effect deportation within a reasonable period. In this court Mr Khubber, who appears for the Claimant, has submitted that the detention became unlawful by the time of the first detention review (DR), which was on 28th July 2015. In the alternative, if I am not satisfied that the detention was unlawful from that point, he submits that it became unlawful by the end of October 2015 or at the latest by 15th June 2016.[2]If the detention is found to have been unlawful, it is agreed that the assessment of damages should be transferred to the Queen’s Bench Division or the Central London County Court as appropriate.[3]Permission was granted on the papers by Ben Emmerson QC as deputy High Court judge on 19th April 2016. Although the claim was filed on 10th March 2016, it is common ground that it should proceed as a claim against the whole period of detention and I have dealt with the claim on that basis.

Background

[4]The Claimant was born in Belgium to Nigerian parents on 14th February 1991. In 2000 he came with his mother to the United Kingdom. His mother claimed asylum, which was refused and her appeal was dismissed, as was her further application for leave to remain, which included the Claimant.[5]In 2005 and 2006 the Claimant was convicted of numerous offences, including robbery and attempted robbery, assault and theft. In 2006 a liability for deportation letter was served on the Claimant, but no further action was taken at that time.[6]In 2007 the Claimant’s mother left the United Kingdom with the Claimant’s younger brother but without the Claimant. The Claimant had further convictions in 2007 for drugs.[7]In 2010 the Claimant was convicted of supplying class A drugs and wounding with intent to cause GBH, for which he was sentenced to a total of eight years custody. On 21st March 2011 a liability for deportation letter was served on him. Following an interview on 24th January 2012, when he claimed that he was Belgian, a deportation order was served on him on 22nd May 2012.[8]In July 2012 the Belgian authorities advised that he was not Belgian and that his parents were Nigerian.[9]On 11th January 2013 the Claimant was interviewed for the purpose of obtaining an emergency travel document (ETD), during which he maintained that he was not Nigerian and refused to complete the ETD forms.[10]On 24th January 2013 an application was made to the Nigerian authorities for ETD for the Claimant. That was followed by a telephone interview of the Claimant by the Nigerian authorities, as a result of which they said that they could not confirm that the Claimant was Nigerian.[11]On 10th September 2013 the custodial term of the Claimant’s sentence ended and he continued in detention under the 1971 Act. In October 2013 representations were made to revoke the deportation order. That was refused on 28th October 2013 and an appeal was made to the FTT. On 7th April 2014 the Claimant’s appeal was dismissed. The FTT concluded that the public interest including the risk to public safety from future criminal acts justified any interference with the Claimant’s private and family life and that his deportation was proportionate. On 29th September 2014 his appeal to the Upper Tribunal (UT) was dismissed and permission to appeal to the Court of Appeal was subsequently refused.[12]Bail had been granted on conditions on 12th May 2014. The Claimant did not abide by those conditions.[13]On 3rd July 2015 the Claimant was detained for the purpose of his interview by the Nigerian Immigration Service (NIS). On 14th July 2015 removal directions were served on the Claimant for his removal on a charter flight to Nigeria on 28th July 2015.[14]In his witness statement dated 13th November 2017 Martin Smith, who is an assistant director in the Defendant’s Returns Logistics team (RL) including specific responsibility for returns to Africa, explained that the NIS interview taskforce scheme had been established under which a team of NIS officers would periodically visit this country to carry out interviews to provide support to the Nigerian High Commission (NHC) in dealing with ETD and other related requests. Mr Smith stated:
“30 It is quite common for the (NHC) to refuse or delay to issue a travel document when other non-nationality issues or factors exist or are perceived to exist. We seek to counter non-nationality issues via the provision of a ‘no barrier letter’ and via discussion at routine case conference meetings. In some instances we also seek the intervention of the Foreign and Commonwealth Office (FCO) (as we have in this case). 31 We are often successful in persuading the (NHC) to issue travel documents via the provision of a ‘no barrier letter’ or via discussion at a case conference meeting.”
He then concluded that at the date of his witness statement (13th November 2017):
“But despite repeated attempts to persuade the (NHC) to issue a travel document for (the Claimant) and despite the intervention of the FCO, I believe that it is now unlikely that the (NHC) will issue a travel document for him.”
Mr Smith also described what happened in the Claimant’s case in the period from July 2015 until March 2017.[15]As part of the taskforce scheme an interview of the Claimant with the NIS took place on 16th July 2015. As a result of the interview the NIS informed the Defendant that they accepted that the Claimant was Nigerian but that there would be reintegration issues if he was returned to Nigeria as his mother was in the United Kingdom. On the morning of the 28th July 2015 the Defendant’s officers met with the NHC to collect ETD for the chartered flight to Nigeria including for the Claimant. The NHC officer refused to provide an ETD for the Claimant because she was concerned about the reintegration issue and the Claimant was not removed on that flight.[16]On the same day the Defendant carried out its first detention review (DR). It noted in respect of any outstanding barrier to deportation that an ETD had been ‘promised’ on 16th July 2015. However it had not been issued. The expected date of resolution was not known. In his recommendation for continued detention the officer concluded:
“The only barrier to removal is a travel document that has been promised but not received. Further advice has been sought from (RL) and (the Case Support Team) (CST) regarding this. …I have balanced the presumption of liberty against the need to protect the public, prevent crime and maintain effective immigration control. All of the above factors in the present case have been considered, however due to the fact that (the Claimant’s) detention is to specifically progress to removal, his detention at this time is considered to be an appropriate course of action. Pending the receipt of an ETD removal can be facilitated within a reasonable time frame.”
Those conclusions remained a broadly similar constant in the DRs for the following nine months.[17]The reviewing officer agreed with the recommendation. He commented:
“(The Claimant) was expected to be deported on the Nigerian charter scheduled for 28th July 2015. However, despite an ETD being agreed, the (NHC) were reticent to issue travel documents believing that (the Claimant) does not have any family living in Nigeria to return to. The (case owner) (CO) has worked tirelessly providing information to the (RL) Country Liaison Documentation Team to refute the claims made by (the Claimant); as a result they are liaising with and working in conjunction with the FCO and the (NHC) to obtain this travel document. This is the only barrier to his removal. Upon receipt of the ETD removal directions will be set immediately for (the Claimant’s) deportation to Nigeria.”
[18]On the 31st July 2015 the authorising officer authorised the continued detention. His reasons included that:
“The case owner is actively progressing the case and is in contact with RL in pursuit of the ETD and must now seek to overcome the impasse by sourcing some irrefutable evidence of (the Claimant’s) extended family in Nigeria. It is known that he has 2 uncles and an aunty and the next step must be to correctly identify their addresses so as to allay the HC’s concerns on this issue. The next detention review (DR) must clearly demonstrate what positive steps we are taking in confirming those addresses.”
[19]The Claimant contends that from this point it was apparent that the Defendant would not be able to remove the Claimant within a reasonable time and that the detention was accordingly unlawful on Hardial Singh principles.[20]On 31st July 2015 a letter was sent to the Claimant’s father requesting information about the family in Nigeria. On 20th August 2015 the Claimant refused to fill in a bio data form requesting information concerning his extended family. On 24th August 2015 a letter was received from the Claimant’s father giving details of the Claimant’s extended family in Nigeria.[21]In the DR on 26th August 2015 it was noted that the Claimant had been accepted on the charter flight for Nigeria on 29th September 2015 and that “COIS are currently working closely with the (NHC) to obtain an (ETD) by this date.” The conclusions are the same as the previous DR and continued detention was recommended, which was agreed by the authorising officer.[22]There was a further DR on 21st September 2015, which noted in respect of current barriers to removal that an ETD was expected to be issued in 1-3 months and that “further inquiries into obtaining a travel document are on-going and have been escalated to Abuja to await an update from the (Migration Delivery Officer) (MDO).” This was also noted in the reasons for the recommendation for continued detention. The authorising officer agreed with the recommendation on the basis that “the ETD issue is likely to be resolved in a reasonable timeframe and consequently I believe (the Claimant’s) continued detention is justified, legitimate and proportionate.”[23]On 29th September 2015 the NHC again refused to provide an ETD for the Claimant for reasons of his reintegration and also destitution, so that he was not removed on the flight to Nigeria which had been arranged for him.[24]In the DR on 19th October 2015 it was noted that an ETD had been promised and “information from CST state it will be issued in time for 24th November 2015”, when another flight to Nigeria had been arranged. The recommendation of the officer noted that an ETD had been agreed. The authorising officer in authorising the continued detention stated:
“A travel document has been agreed to facilitate his removal, however the caseworker must liaise with CST to ensure this is issued in readiness for his removal which is scheduled for 24th November 2015.”
[25]As I have said, Mr Khubber submits in the alternative that, if it is not accepted that it was apparent that the Defendant would not be able to remove the Claimant within a reasonable time on 28th June 2015, that was apparent by the end of October 2015 and accordingly the detention was unlawful on Hardial Singh principles from that time.[26]On 19th November 2015 a pre-action protocol letter (PAP) was sent to the Defendant in respect of the Claimant’s proposed removal by charter flight on 24th November 2015. Proceedings were issued on 23rd November 2015, but interim relief was refused on the same day on the basis that it would be academic given that in the absence of an ETD the Claimant would not in any event be removed to Nigeria.[27]On 24th November the NHC again refused to provide the ETD for the same reasons as in September and the Claimant was not therefore removed on the flight which had been arranged for that day.[28]In the DR on 14th December 2015 it was noted that an ETD was currently being negotiated with the MDO in Nigeria and that an ETD was expected to be issued in 1-3 months. In authorising continued detention the authorising officer stated:
“It is noted a travel document has been agreed by the (NHC) however prior to (the Claimant’s) scheduled removal the document was not issued. The caseworker must continue to liaise with CST to ensure this is addressed in a reasonable timescale. If it is established a document will not be issued within a reasonable time frame, the caseworker must consider a referral to the strategic director for release.”
[29]The next DR on 6th January 2016 was in similar form but explained that the Claimant “has been referred for the Nigerian charter on the advice of CST as a travel document may be issued in time.” The authorising officer noted that the Claimant was due to be removed on the next Nigerian charter later in January 2016 but did not repeat the advice in respect of possible referral to the strategic director for release.[30]On 18th January 2016 a PAP letter was sent to the Defendant in respect of the continued detention. In its response dated 26th January 2016 the Defendant noted that the Claimant’s father had stated that the Claimant did have family in Nigeria including his uncle, who lived in Oghior Town, and his aunt, who lived in Oghior Village. It was agreed that three attempts to remove the Claimant had failed because of the non-issue of an ETD but “as negotiations are ongoing with (NHC) it is considered that your client’s removal to Nigeria could be facilitated within a reasonable timescale.”[31]In the event the Claimant was not booked on the flight to Nigeria in January 2016 and an ETD was not issued. In the next DR on 2nd February 2016 the comments were similar but the authorising officer noted:
“We are just waiting on the (NHC) to release (the ETD). The case owner is continuing to make efforts to obtain this and the case is currently being looked at by the MDO in Abuja. As soon as the document is handed over, a flight will be booked.”
[32]On 10th February 2016 the immigration judge (IJ) agreed to grant bail on condition that the proposed release address was approved by probation. As part of his reasons the IJ stated:
“However it cannot be said at the present time that removal is imminent or even likely to take place within a reasonable time as the Nigerian authorities are not prepared to issue the (Claimant) with a travel document.”
The proposed address, which was that of the Claimant’s father, was not approved by probation and so bail was not in the event granted.[33]On 29th February 2016 the Claimant was referred for removal on a charter flight to Nigeria on 22nd March 2016. On 1st March 2016 the DR confirmed his continued detention for similar reasons as in the previous DR. On 2nd March 2016 the case record notes that the Claimant was given the number to the NHC so that he could telephone to ask for a travel document. On 6th March the case record states that he was asked if he would be willing to return to Nigeria but he said that he had never lived in Nigeria and did not want to go there and that he refused to sign a disclaimer form.[34]On 9th March 2016 the case record records a call from the Claimant that he would sign the disclaimer and that the form was resent to him. However on 11th March the record notes that he refused to sign the form, claiming not to be Nigerian.[35]In the meantime on 10th March 2016 the present proceedings for judicial review were issued in respect of his continued detention.[36]On 16th March 2016 it is noted on the case record that the Claimant said that he wished to return to Nigeria voluntarily but did not have the money to buy his own ticket. However an ETD was not issued for the flight on 22nd March 2016 and he was not removed.[37]On 24th March 2016 the Claimant said that he wanted an interview with the NHC as he wanted to explain his point of view and this would be before he would sign any disclaimer. In fact on 31st March 2016 he signed the disclaimer and said that he wanted to go to Nigeria as soon as possible. The signed disclaimer was sent on to the CST to obtain the ETD.[38]On 5th April 2016 the NHC held a telephone interview with the Claimant. According to the case record the Claimant said repeatedly that he had been told to sign the disclaimer. The NHC officer then spoke to the CO and said that the Claimant had not been born in Nigeria and had never been there and he terminated the interview call. However the Claimant then said to the CO that he should keep trying to call the NHC officer back as he wanted to tell him that his mother and brother were in Nigeria and if they can find them he was happy to go back. Further attempts to contact the NHC officer were unsuccessful, but the Claimant was asked to request his father for the contact details for his mother and brother. That was followed by a note on 12th April 2016 that the Claimant had called “begging to leave the UK”.[39]On 15 April 2016 the case record notes that the Claimant’s father had been telephoned and he had said that he was not in contact with the Claimant’s mother or brother, whom he believed to be in Nigeria.[40]In the DR on 20th April 2016 his continued detention was authorised for similar reasons as in the previous DRs. On 22nd April 2016 the case record notes that the Claimant telephoned to say that he could not get in touch with his mother but he just wanted to return. The NHC had advised that he needs someone to collect him on his arrival at the airport. The Claimant was asked to contact other family members or friends and to ask the NHC for advice. On 24th April 2016 there is a note in the case record that the Claimant was asking either to be deported or to be released as he is getting stressed in detention. That was followed by a note on 27th April 2016 that the Claimant had been unable to contact his mother but he was happy to go back and was able to get to his home village on his own if he cannot contact his mother.[41]On 5th May 2016 the Defendant’s officers met an NHC officer, who said that she would provide an ETD for the Claimant but only if his father was allowed to accompany him back or a contact number for his brother in Nigeria was obtained so that the officer could speak to him. On 9th May 2016 the telephone number of the Claimant’s uncle in Nigeria was provided to the NHC. There was a further meeting with the NHC on 13th May when the NHC officer said that she had tried to call the number on numerous occasions without getting through, that she did not have a problem with issuing the ETD but needed to confirm that the Claimant would have someone to return to first.[42]On 18th May 2016 there was a further DR. It noted that removal was expected in 1-3 months and that “CST had stated that as a disclaimer had been signed the Nigerian officials now only require a contact for (the Claimant’s) family in Nigeria. Phone number given.” Continued detention was therefore recommended. The authorising officer agreed but noted:
“This is a challenging case, but we are making progress. He has been referred for the next charter and so, assuming a document is issued, removal is imminent.”
[43]In fact on the same day there was another meeting with the NHC to obtain an ETD for the Claimant for a charter flight on 24th May 2016 to Nigeria. On this occasion the NHC officer refused to issue the ETD as she was aware that the Claimant had lodged a judicial review application. On the 20th May accordingly the removal directions were deferred and the Claimant was not removed on the flight arranged for 24th May 2016.[44]Also on 20th May 2016 the case record notes a meeting with the Claimant at which he said that he wished to be removed on the flight to Nigeria the following week but he was told that his removal was being stopped by the judicial review. He was advised that he should contact his solicitors to withdraw the judicial review, but he said that he had no dealings with his solicitors anymore.[45]On 9th June 2016 the judicial review hearing was fixed for 4th October 2016.[46]The next DR was on 15th June 2016. In the reasons for the recommendation the officer noted that the application had been placed on hold due to a court order that the Claimant was not to be removed until his judicial review hearing. The officer concluded:
“…as (the Claimant) currently has no prospect of removal I would recommend his release. However due to his clear risk a suitable address must first be found. Once an address is obtained that is deemed acceptable by his Offender Manager, (the Claimant) will be released subject to tagging and reporting restrictions.”
The authorising officer agreed, saying:
“Bail has been agreed in principle and ongoing actions are taking place to secure a suitable release address. I authorise a further 28 days continued detention until such a release address is identified.”
[47]As I have said, as his further alternative Mr Khubber submits that, even if the Claimant’s detention up to this point is held not to have been unlawful, it was now clearly apparent that the Defendant would not be able to remove the Claimant within a reasonable time and accordingly the detention was unlawful on Hardial Singh principles from this point.[48]In the next DR on 12th July 2016 it is noted in respect of any outstanding barrier to deportation that the judicial review hearing was “set for 4th October 2016 and (the Claimant) cannot be removed until this has been dealt with”. In respect of action taken it is noted that an address had been received from the Claimant but “this had not been as yet approved by probation”. The officer concluded that due to his clear risk a suitable address must first be obtained before he is released subject to restrictions. The authorising officer agreed to maintaining detention but on the basis that:
“As the JR is not scheduled to be heard until October a release referral should be made. Continued detention is only authorised pending the submission of a release referral.”
[49]On 4th August 2016 the case record notes that the Claimant had said that he wanted to return to Nigeria and wanted to know when he would receive his travel document. On 5th August 2016 the Claimant was again interviewed by the NIS, who accepted that he was Nigerian, but the provision of an ETD was not agreed. At a meeting with the NHC on 9th August to seek the issue of an ETD for those who had been accepted as Nigerian the NHC did not provide an ETD for the Claimant.[50]On 8th August 2016 there was a further DR. This noted that the release referral had been submitted to AD for checking on 3rd August 2016. The authorising officer did not refer to the release referral but commented:
“I recognise the difficulties in pursuing this case whilst (the Claimant) is detained and also the risk that needs to be mitigated should he be released. I agree to maintain detention whilst this mitigation is put in place and subject to strategic director agreement.”
[51]The next DR was on 5th September 2016. It was similar to the previous DR. The authorising officer concluded:
“(The Claimant) was granted bail in principle in June 2016. Ongoing actions are taking place to secure a suitable release address. Continued detention is authorised pending regular follow up action to obtain a suitable release address.”
[52]On 13th September 2016 the IJ granted bail subject to residence, reporting and tagging restrictions. Mr John Pendlebury, who is a criminal case worker employed by the Defendant, explains in his witness statement dated 1st November 2016 that the address was his father’s address which had been deemed unsuitable by probation because of child safety issues. However probation provided another address in Peterborough which was approved and to which the Claimant was moved on 15th September 2016.

Legal framework and authorities

[53]Paragraph 2(3) of schedule 3 to the 1971 Act provides:
“(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom….”
[54]In R (oao Lumba) v SSHD [2012] 1 AC 245 at paragraph 22 Lord Dyson set out the Hardial Singh principles as follows:
“(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.”
Mr Khubber relies on principles (ii) and (iii).[55]He continued at para 103:
“103 A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in I's case, there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful. 104 How long is a reasonable period? At para 48 of my judgment in I's case, I said: ‘It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences’.”
[56]In considering these factors Lord Dyson continued at paragraph 121:
“… Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”
[57]He added at paragraph 144:
“Mr Lumba has now been in detention for 54 months. At first sight, his detention seems to have been of unreasonable duration. There must come a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation. Moreover, in certain respects the courts below have not applied the Hardial Singh principles correctly. In particular, they have wrongly regarded the fact that Mr Lumba has been able to delay his deportation by pursuing applications and appeals which, thus far, have been unsuccessful as being relevant to the assessment of a reasonable period of detention. It has not been suggested by the Secretary of State that any of these applications or appeals have been hopeless and abusive. For the reasons given above, the fact that the applications and appeals delayed the deportation should have been regarded as irrelevant….”
[58]The application of the principles had earlier been considered by the Court of Appeal in R (oao MH) v SSHD [2010] EWCA Civ 1112, where Richards LJ stated at paragraph 64 and following:
“64. … As Toulson LJ said, there must be a ‘sufficient prospect’ of removal to warrant continued detention, having regard to all the other circumstances of the case (see [32] above). What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case. 65. I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. In my view Mitting J was not purporting to do that but was simply asking himself the questions ‘by when?’ and ‘on what basis?’ for the purposes of his own consideration of the case before him. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was ‘some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be’ (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released. 66. Sales J committed no error by asking himself first whether there was ‘some prospect’ of removal: he referred in that connection to R (Khadir) v Secretary of State for the Home Department, where the focus was on the existence rather than the exercise of the power of detention, but the same language is to be found, as I have said, in A (Somalia). “Some” prospect in this context plainly means a realistic prospect, and I do not read Sales J's judgment as proceeding on any other basis. Of course, A (Somalia) shows that the court needs to go on to consider the degree of certainty or uncertainty affecting the prospect of removal and to ask itself whether the prospect is sufficient to warrant detention in all the circumstances of the case; but it seems to me that Sales J had that point in mind as well. At para 86 of his judgment he set out the relevant passage in A (Somalia); and at para 98, citing the judgment of Simon Brown LJ in I (Afghanistan), he referred to the range of circumstances to be taken into account in determining the reasonableness of a period of detention, including “[t]he likelihood or otherwise that removal will in fact prove possible”
. Reading his judgment as a whole I am satisfied that he carried out the requisite balancing exercise, taking the likelihood or otherwise of removal properly into account.”[59]In R (oao Sino) v SSHD [2011] EWHC 2249 John Howells QC as deputy High Court judge considered the application of these principles where the conduct of the detainee may have contributed to the length of his detention:
“56 In my judgment the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may be well be longer than it will be in the case of individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him….”
[60]In considering the relevance of absconding and re-offending risk Jay J commented in AXD v Home Office [2016] EWHC 1133 (QB):
“180 At this stage, it is convenient to consider the saliency of the absconding and re-offending risk, because it has generated differences of emphasis at Court of Appeal level. If there is simply no prospect of removal within a reasonable time, it seems to me that these risks are irrelevant. However, many cases occupy a grey area, and to my mind the concept of “sufficient prospect” must to some extent be a flexible one, accommodating all the circumstances of the case, including the absconding risk. Thus, in R (A) v SSHD [2007] EWCA Civ 804 , Toulson LJ held in terms that the risk of absconding is bound to be a “very important factor, and likely often to be decisive” (see paragraph 54 of his judgment). In R (I) v SSHD [2003] INLR 196 , Dyson LJ took a broader view. I am content to follow Toulson LJ's guidance, tempering it to the extent I have already mentioned. Yet, these cases are all heavily fact-sensitive, and in due course it will be necessary to quantify the risks and to weigh them in the balance against everything else. 181 The absconding risk is important because a former detainee who absconds will be frustrating the public interest in favour of his deportation. The risk of re-offending is relevant but it must be less important, because the purpose of immigration detention is not to provide indirect facilitation to the separate policies and objects of the criminal law.”
[61]In R (oao Muqtaar) v SSHD [2012] EWCA Civ 1270 Richards LJ set out the overall approach of the Court to determining the question of reasonableness as follows:
“48 … It is well established that in applying the Hardial Singh principles the court must form its own judgment (for example, as to whether a reasonable period has been exceeded) rather than reviewing on Wednesbury grounds a judgment made by the executive. But the forming of such a judgment is an evaluative exercise, involving the balancing of a wide range of relevant factors….”
He had earlier commented on the approach to the application of Hardial Singh principle (iii):
“36… At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR's final decision would be such as to prevent the claimant's removal. I stress “apparent”, because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.”
[62]In Fardous v SSHD [2015] EWCA Civ 931 Lord Thomas CJ dealt with the use of hindsight as follows: “42 In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision of the court is necessarily ex post facto , the court does not take into account matters that subsequently occurred. As Sales J explained in R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin) , at paragraph 105: ‘In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.’ His decision was upheld by this court: [2010] EWCA Civ 1112.” ‘In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.’[63]In respect of the grace period when detention is no longer required to effect removal in FM v SSHD [2011] EWCA Civ 807 Pitchford LJ stated:
“60. I have already expressed my opinion that the test for the lawfulness of a period of detention is one of reasonableness. The obligation of the Secretary of State is to cease detention when it becomes clear that detention is no longer required to effect removal but, in my view, common sense demands that a short period of grace is required for the decision-making process to take place which may include a decision as to the management of the detainee on release…. 64. I accept that the concept of reasonableness applies equally to the moment of practical termination of detention as it does to the decision whether to detain at all. I do not consider that principle (ii) can properly be applied so as to deprive the Secretary of State of any room for decision making and other necessary administrative arrangements once a reasonable period for removal has expired. That would be to reduce the common law principles upon which the statutory power should be exercised to absurdity. Nevertheless the Secretary of State must act reasonably and if, contrary to good administration, there is simply a delayed response continued detention will be unlawful. …”
[64]Mr Khubber also referred in his post hearing note to R (oao Qarani) v SSHD [2017] EWHC 507, which concerned the provision of section 4 accommodation and where at paragraph 74 Philip Mott QC as deputy High Court judge had indicated that 48 hours would normally suffice for finding suitable accommodation but that in that case with a sex offender seven days should have been sufficient.

Submissions

[65]Mr Khubber submits that this is not a case where at least until June 2016 the Defendant had not made reasonable efforts to secure the Claimant’s removal. On the contrary her officers had throughout pressed the NHC to provide an ETD to enable removal to take place. But the fact remained that throughout the period of detention there had been no meaningful positive response from the NHC. This was reflected in the DRs until May 2015 which repeated that the ETD had been promised but demonstrated that in reality no progress had been made in securing the ETD so that it was apparent that that there was no prospect of their being secured in a reasonable time or at all.[66]Dealing with the position in July 2015, the stance of the NHC was made clear that, while it accepted that the Claimant was Nigerian, it was concerned about reintegration. In the next 10 months that was not able to be successfully addressed. But importantly at July 2015 the Defendant had no basis on which she could properly say that it could be addressed within a reasonable time. Realistic prospect must be distinguished from mere hope.[67]The comments of the authorising officer on the DR dated 31st July 2015 are particularly apposite in that the officer set out the duty on the Defendant’s officers to overcome the impasse by sourcing some irrefutable evidence of the Claimant’s extended family in Nigeria. It was then believed that he had two uncles and an aunt in Nigeria and the officer made clear that the duty was to identify correctly their addresses and that the next DR must clearly demonstrate what positive steps are being taken in confirming those addresses. It was clearly in the officer’s mind that a view would be taken whether or not this evidence could be found in the month before the next DR. In the absence of that evidence, which was never identified, it could not be said that there was a sufficient prospect of removing the Claimant within a reasonable period as the ETD would not be provided.[68]Moving forward to the second date at the end of October 2015, in 31st July 2015 a letter had been written to the Claimant’s father and on 24th August 2015 details of the extended family were received. But there is nothing to indicate what was done with those details in the evidence produced by the Defendant. It would have been easy to check whether the contact details were current or reliable. But, although it was apparently referred to the MDO in Abuja, it was apparent that none of the leads enabled the family members to be traced. Given that position, it was scarcely surprising that the NHC refused ETD on reintegration issues for the Claimant, who had never set foot in Nigeria, quite apart from any issue of destitution.[69]Thus by the end of September the Defendant had been unable to remove the Claimant on two flights. The contact details provided by his father had not led to any family members being traced. The period for setting out the steps to overcome the impasse given by the authorising officer on 28th July 2015 had long expired without any identified plan of action being put in place. The Claimant had been in detention for three months. At that stage the case should have been referred for release to the strategic director in the absence of any identified steps to enable the ETD to be secured.[70]The October 2015 DR stated that the ETD would be issued in time for the flight on 24th November 2015, but there is no evidence as to on what this was based. It is clear that the assertion that the travel document had been agreed was without foundation because the NHC had been firm in its position that ETD were withheld because of the reintegration issue.[71]In the circumstances it was clearly apparent by the end of October 2015 that the Defendant would not be able to remove the Claimant within a reasonable period by securing the issue of the ETD.[72]If that is rejected, he submits that it was unquestionably the case that by 15th June 2016 it was apparent even to the Defendant that she would not be able to remove the Claimant within a reasonable period. He had already been detained for 11 months. He was clearly under stress from being in detention, seeking either to be deported or to be released. The IJ had concluded in February 2016 that his removal was not likely within a reasonable time because the NHC would not issue an ETD. While the Claimant had signed the disclaimer, it was clear from his response in interview that he would not go through with it and it did not in any event address the reintegration issue. Moreover the judicial review proceedings, for which permission had been granted, would prevent removal until a hearing was held. While in May 2016 a telephone number had been obtained for the Claimant’s uncle in Nigeria, this had not enabled contact to be made. Hence the position had moved no further forward and there was no basis for concluding that that would change in the reasonable future.[73]The fact is that on 15th June 2016 both the reporting officer and the authorising officer agreed that there was no relevant prospect of removal. It is impossible for the Defendant to distance herself from that conclusion and no ground on which the Court can conclude that, notwithstanding the officers’ conclusions, it was not in fact apparent that the Defendant could not remove the Claimant in a reasonable period.[74]As to the grace period, this should have been no more than was properly required to enable the Claimant’s release to a suitable address. It is clear from what actually happened in September, when bail was granted on 13th September and within 24 hours probation had identified an appropriate address to which the Claimant could move on 15th September, that this should only have taken a matter of days, not months. There is no explanation as to what, if anything, the Defendant was doing to secure a suitable address beyond considering one address put forward by the Claimant. In the absence of evidence from the Defendant Mr Khubber submits that the Defendant cannot discharge the burden on her to justify the detention when her officers had concluded that there was no prospect of her being able to remove the Claimant in a reasonable period.[75]Rory Dunlop, who appears for the Defendant, submits that in this case it is particularly important not to use hindsight. The assessment of what was apparent as to the ability to remove the Claimant needed to be made in the light of the position known at the time to the Defendant’s officers. It was an error simply to say that no progress was in fact made in securing the ETD and therefore it was apparent that the Defendant could not remove the Claimant in a reasonable time.[76]Second, the test in Hardial Singh principle (iii) is whether it was apparent that removal will not be possible. The Defendant did not have to show an apparent likelihood that the Claimant could be removed. Mere uncertainty or lack of a definite timescale will not be sufficient to satisfy the principle. The principle permitted the Defendant to continue to detain the Claimant for the purposes of removal until it was apparent that she could not remove him within a reasonable period.[77]In the present case the only issue, at least until May 2016, was essentially the reintegration issue, which could be addressed through contacting the Claimant’s family, who were known to be in Nigeria and for whom some contact details had been given. Subject to that the NHC had agreed to provide the ETD. There was no point at which it could be said that those members of the family definitely could not be traced or alternatively that the NHC would not accept that the Claimant could be given ETD notwithstanding that his family could not be found.[78]While he accepts that the extent of uncertainty is a relevant factor, it must be balanced in the light of all the circumstances. In that respect the risk of absconding and re-offending is of paramount importance. Here there was a high risk in both respects. That also went to the grace period where what was reasonable properly should take account of what would be required to identify a suitable address for this Claimant with his risk factors.[79]In that light the length of detention amounting to just over 14 months was not in itself unreasonable, given the lack of cooperation from the Claimant and his risk factors.[80]There is no evidence that the conditions in which the Claimant was kept were unsuitable or that it was having any particularly adverse effect on him, save that he wanted to be released.[81]On 28th July 2015 there was every prospect that the contact details for the Claimant’s extended family would be found so that the reintegration issue raised by the NHC would be addressed. There is no basis for concluding that his continued detention at this point was in breach of the Hardial Singh principle (iii).[82]In October 2015 the Defendant had the details from the Claimant’s father for the Claimant’s aunt and uncle, apparently including their home town or village, and inquiries were being made locally in Nigeria through the MDO. There was plainly a real possibility that contact would be made and then the ETD would be issued. As part of the overall balance the Claimant’s risk factors weighed heavily in favour of continuing detention so long as it was not apparent that it was not possible to remove him within a reasonable period. There was nothing in the length of detention to that point which made it unreasonable for the purposes of principle (ii). Crucially Martin Smith’s evidence is not challenged that the Defendant’s officers were often successful in persuading the NHC to issue ETD via the provision of a no barrier letter or through discussion at a case conference meeting. There was nothing that indicated at that stage that would not be able to be achieved within a reasonable period. In these circumstances principle (iii) of Hardial Singh was not breached at October 2015.[83]The next date which the Claimant advanced as the point when the detention became unlawful was in June 2016. This is unsurprising, given that the Claimant indicated in March 2016 that he was willing to return to Nigeria and had signed a disclaimer form. He had then caused the NHC to refuse ETD because at the interview on 5th April 2016 he falsely alleged that he had been told to sign the disclaimer form. Even then he told the Defendant’s officers that he was willing to return and would tell the NHC that he was happy to go back if his brother or mother could be found. Then on 5th May 2016 the NHC confirmed that they would issue the ETD if they could be given a contact number for a member of the Claimant’s family in Nigeria. Within a week a telephone number for the Claimant’s uncle was provided to the NHC. That was confirmed on 13 May 2016 when the NHC official made clear that she did not have a problem in issuing the ETD but needed to confirm that there would be someone to meet the Claimant in Nigeria.[84]Thereafter the principal problem appeared to be the judicial review. At worst the ETD could be issued at the end of the proceedings, which had been fixed to be heard on 4th October 2016. But there was no objective reason why the ETD could not be issued before then if arrangements could be made for the Claimant to be met. While of course there was uncertainty whether the ETD would be forthcoming, it could not be said that it was not realistically possible for them to be issued within a reasonable time. The degree of uncertainty itself had to be weighed with the other circumstances including the risk of absconding and re-offending, both of which were high, in determining whether the period was unreasonable.[85]On that basis, when it came to the position at the time of the DR on 15th June 2016, the Defendant’s primary position was that the Court should conclude that it was still not apparent that the Defendant could not remove the Claimant in a reasonable time. The views of the officers set out in the DR that the Claimant currently had no prospect of removal appear to have been based on the ongoing judicial review. However the Hardial Singh principle (iii) test was whether it was by then apparent that the Defendant could not remove the Claimant within a reasonable period. That was not the case because the judicial review proceedings could be withdrawn or expedited and in any event their determination on 4th October or earlier if expedited would still be within a reasonable time for the purposes of principle (iii).[86]If that was not accepted, Mr Dunlop submits that the continued detention from June 15th to 13th September 2016 when bail was granted was reasonable because of the grace period to enable the Defendant to find a suitable address to which he could be released. This was consistent with the objective of using the power to remove the Claimant in that it was essential in view of the risk factors that he was released to an address which was approved by probation. The overall period of detention had not become unreasonable for the purposes of Hardial Singh principle (ii).

Discussion

[87]In the light of the authorities to which I have been referred it may be helpful if I set out some of those basic principles, which in my judgment should guide the determination of the present case. They include the following i) In the first place, as this claim concerns the liberty of the person, the burden remains throughout on the Defendant to demonstrate that the detention is lawful and not the other way round; ii) The application of the common law principles set out in Hardial Singh is for the court to determine (per Richards LJ in Muqtaar at paragraph 48); iii) Although there is significant overlap between principles (ii) and (iii), it is convenient, at least in the present case, first to consider principle (iii) before assessing whether the overall period of detention has become unreasonable in all the circumstances for the purpose of principle (ii); iv) Given that the power is in fact being exercised for the purpose of removing the detainee under principle (i), it is crucial that the test in principle (iii) is not watered down or reversed; hence the question is whether it is apparent that the Defendant cannot remove the Claimant in a reasonable period; mere uncertainty will not suffice; there is no obligation on the Defendant to demonstrate that there is in fact a likelihood that the removal will be secured within a given time period (per Richards LJ in Muqtaar at paragraph 36); v) However, the degree of uncertainty or the strength of the prospect will be a factor in considering the reasonableness of the time within which removal may lawfully be effected; thus the prospect of securing removal must in the particular circumstances be sufficient to support the reasonableness of the overall period of detention (per Richards LJ in MH at paragraphs 64-66); vi) Whether it is apparent that the Defendant cannot remove the Claimant within a reasonable time has to be assessed in the light of matters as they existed and were known at the time and not with the benefit of hindsight (per Lord Thomas CJ in Fardous at paragraph 42); vii) What is a reasonable period is to be determined in the light of all the circumstances on a case specific basis; those circumstances will include as a paramount consideration the risk of absconding and of re-offending, bearing in mind that the object is to secure removal; if a detainee has a high risk of absconding, there is equally a high risk that it will obstruct the overarching objective of detention to secure his removal pursuant to the deportation order; re-offending is related to that consideration, albeit not so directly, but will be material in determining what is a reasonable period (per Lord Dyson in Lumba at paragraphs 104 and 121 and Jay J in AXD at paragraphs 180-181); viii) The reasonableness of the overall period, comprising the time for which he has been detained together with the further period that may or would be required to secure removal, is to be judged against all the other circumstances of the case (per Lord Dyson in Lumba at paragraphs 103-4 and Richards LJ in MH at paragraph 65); ix) The nature of the obstacles in the way of removal and what would be required to overcome them will be important; for example, where the receiving country has accepted citizenship and the remaining obstacle is one of a non-nationality issue, that may well be relevant to the prospects of the obstacle being resolved and in what period of time (per Lord Dyson in Lumba at paragraph 103); x) The extent to which the Claimant has himself contributed to the delay in removal through non-cooperation or obstruction of the process may also be relevant to the question of what is a reasonable period for removal, but this will not include taking court proceedings unless they are hopeless or abusive (per Lord Dyson in Lumba at paragraph 144 and John Howells QC in Sino at paragraph 56); xi) The diligence, speed and effectiveness of the steps shown to have been taken by the Defendant to secure removal will be material (per Lord Dyson in Lumba at paragraph 103); xii) The effect of detention on the detainee and/or his family will or may be relevant where it can be shown to cause particular hardship or otherwise (per Lord Dyson in Lumba at paragraph 104); and xiii) In terms of the grace period this will again depend on what is reasonable in all the circumstances; but the period will generally be short and limited to what is required to make the necessary arrangements for release; in that respect the Defendant must act reasonably and should not delay in securing the release (per Pitchford LJ in FM at paragraphs 60 and 64).[88]Turning then to the position at 28th July 2015, the Claimant had been lawfully detained for the purposes of his removal pursuant to the deportation order so that in the first place he could be interviewed by the NHC, following the advice from the Belgian authorities that he was not Belgian. Following the interview the NHC had accepted that the Claimant was Nigerian but withheld the ETD because of its concern about reintegration. It is clear from Martin Smith’s witness statement that the Defendant was often successful in persuading the NHC to issue ETD when there are non-nationality issues. In particular in the Claimant’s case there was an indication that his mother had returned to Nigeria, although the Claimant had told the NHC that she was in the UK. Thus the reviewing officer for the DR on 28th July 2015 noted that the RL team were working to refute the claim made by the Claimant that he had no family living in Nigeria. The authorising officer on the 31st July 2015 noted that it was known that the Claimant had two uncles and an aunt living in Nigeria so that the next step was to identify their addresses to allay the concerns of the NHC on that issue.[89]On this basis I do not consider that at this time it was apparent that the Defendant could not secure the removal of the Claimant to Nigeria within a reasonable period. In that respect the Claimant’s immigration and other history and the consequent risk of absconding and re-offending weighed strongly in support of detention to secure his removal. The obstacle that stood in the way of removal was the absence of the ETD but only because of the reintegration issue, which would appear to be readily resolved by contacting other members of the family in Nigeria. There was nothing to suggest delay or lack of diligence on the part of the Defendant. Nor was there any evidence of particular hardship to the Claimant or other members of his family as a result of his detention. In my judgement the continued detention of the Claimant at 28th July 2017 was plainly lawful in the light of the Hardial Singh principles and the further principles that emerge from the other authorities to which I have referred above.[90]Moving on to October 2015, the Claimant’s father had provided details of the Claimant’s extended family in Nigeria, which it appears included his uncle and his aunt together with information as to the town and village where they were said to live. The MDO in Nigeria was directly involved in the case. The advice from the CST was that the ETD would be issued in time for the next flight to Nigeria on 24th November 2015. While the ETD had not been issued on 29th September 2015 for the flight arranged on that day, the issues of concern were still non-nationality issues, that of reintegration and destitution. On the first progress had apparently been made towards locating members of the Claimant’s family in Nigeria. On the latter there is no direct indication as to the basis for this concern, but in so far as it concerned funding there is nothing to suggest that it was not capable of being overcome. Certainly the reported position in the DR on 19th October 2015 does not identify this as an ongoing obstacle to the issue of ETD.[91]By this time the overall period of detention had been five months and the assessment in the DR was that the ETD would be provided by 24th November 2015. Given the basis for the reintegration concern and its potential resolution, in my judgement there is no reason to reject that assessment of the prospect of securing ETD or the Claimant’s removal as unrealistic at the time. The other factors arising in respect of the Claimant’s detention had not materially changed. In the circumstances I have concluded that it was not apparent that the Defendant could not remove the Claimant within a reasonable period and that accordingly his continued detention was lawful within the Hardial Singh principles and otherwise. I do not consider that in all the circumstances the overall period was unreasonable for the purposes of Hardial Singh principle (ii).[92]I have also reviewed the position between 28 July 2015 and the end of October 2015 to see whether there was any point during that period when the Claimant’s detention became unlawful, whatever the position may have been at the end of October. In my judgement, essentially for the reasons set out above, his detention during the whole of that period remained lawful on Hardial Singh principles.[93]Turning then to the position on 15th June 2016, it was by then the view of the Defendant’s officers that the Claimant could not be removed with the ongoing judicial review proceedings, for which the hearing was fixed for 4th October 2016, by when he would have been in detention for a total of 15 months. While the NHC official had said in May that she would issue the ETD if she was provided with a contact number for the Claimant’s relative in Nigeria, on 24th May 2016 the ETD were refused because the official had become aware of the judicial review proceedings. Significantly the reviewing officer for the DR on 15th June 2016 and the authorising officer did not consider that there was at that time a prospect of the Claimant’s removal so that he should be released subject to finding a suitable address given his risk of absconding and re-offending. His continued detention was authorised for a further 28 days on that basis.[94]Mr Dunlop submits that, notwithstanding the views of the Defendant’s officers and the actual basis for the Claimant’s continued detention, I should conclude that the Defendant could lawfully detain the Claimant on the basis that it was not apparent that the Defendant was not able to remove the Claimant within a reasonable period and that the period of detention would not be unreasonable in all the circumstances for the purposes of the Hardial Singh principles. At this stage there was no indication that those concerned considered that it would be possible to remove the Claimant before the determination of the judicial review proceedings which were to challenge the lawfulness of the detention and for which permission had been granted. Notwithstanding investigations in this country and in Nigeria, the information provided had not enabled contact to be made with any members of the Claimant’s extended family. Bearing in mind that the burden remains throughout on the Defendant in this respect, there is no evidence before the court as to any continuing investigations at this time which might lead to new information. While therefore it remained possible that contact could be achieved, it was no more than a possibility, which itself is a material consideration in the judgement as to the reasonableness of the period.[95]The risk factors remained an important consideration in respect of achieving the Claimant’s removal but needed to be weighed against the other relevant factors. That would include that there was some evidence that the Claimant was suffering from stress from his continuing detention. It does not seem to me that the fact that he signed the disclaimer and then on 5th April 2016 claimed to the NHC that he had been forced or advised to sign it materially changes the assessment at 15th June 2016 as to whether it was apparent that the Defendant was not able to remove the Claimant within a reasonable period. It was apparent that the uncle’s telephone number that had been provided had not enabled contact to be made.[96]While the DR on 18th May 2016 recognised that it was a challenging case, it is difficult to see what actual progress was being made when the contact number had also failed and there is no indication of any other specific steps which were being taken. Certainly by the DR on 15th June 2016 there is nothing to suggest that further steps had been taken following the refusal of the ETD on 18th May and the cancellation on 20th May 2016 of the removal directions for the flight to Nigeria on 24th May 2016, apart from the meeting with the Claimant on the 20th May. At that meeting the Claimant had said that he wanted to be removed on the flight to Nigeria but was told that his removal had been stopped by the judicial review. He was advised that he should contact his solicitors to withdraw the judicial review, but he said that he had no dealings with his solicitors anymore. In any event there had been no approach to withdraw the proceedings by 15th June 2016 and there was no suggestion in the DR that that was in prospect.[97]In addition to the above, although the decision to continue to detain the Claimant was still made under paragraph 2(3) of schedule 3 to the 1971 Act pending his removal, it was expressly on the basis that it was to be short term so that a suitable release address could be found. In these circumstances, including the overall potential period of detention and notwithstanding the risk factors affecting the Claimant, in my judgment it had become apparent that it was not possible for the Defendant to remove the Claimant within a reasonable period for the purposes of Hardial Singh principle (iii). However, that was properly subject to a grace period to enable suitable accommodation to be found.[98]In this respect, in the absence of special circumstances, it would be expected that a reasonable period for finding such accommodation would be short. In particular, if it was to be a period in excess of a few days, it would be reasonable to have evidence from the Defendant to explain the steps that had been taken and why it was not reasonably possible for the accommodation to have been found earlier and that the balance of the relevant factors continued to justify the Claimant’s detention for that period. However, the evidence from the Defendant in this respect is limited. There is evidence that one address had been put forward by the time of the DR on 12th July 2016 and that had not by that time been approved by probation. As there is no further reference to it, it may be inferred that it was not approved. In August there was a further interview of the Claimant by the NIS, but an ETD was not provided for him by the NHC. Detention was continued on 12th July, 8th August and 5th September 2016 on each occasion because of the risk factors until suitable accommodation was found. However, apart from the unparticularised assertion in the DR on 5th September 2016 that ‘ongoing actions are taking place to secure a suitable release address’, there is nothing to indicate what, if anything, was actually being done by the Defendant to find a suitable release address. That is in contrast to the position when bail was granted on 13th September 2016, when probation were able to identify a suitable address within 24 hours, to which the Claimant was able to move on 15th September 2016. Overall in my judgement the Defendant has not demonstrated that she acted proactively or with any sense of urgency or at all to find suitable accommodation. In these circumstances I conclude that from one week after the DR on 15th June 2016 the detention of the Claimant became unlawful in that it was apparent by 15th June 2016 that the Defendant was not able to remove the Claimant in a reasonable period and the Defendant had failed thereafter to act reasonably or without delay in finding suitable accommodation to which the Claimant could be released.[99]I have also considered the period of detention from the end of October 2015 until 15th June 2016 to see whether at any point during that period the Claimant’s detention became unlawful having regard to the Hardial Singh principles or otherwise. While there was the continuing passage of time without making the required contact in Nigeria from October 2015, on the evidence I am satisfied that inquiries were continuing with the prospect at that time that contact could be made to enable the ETD to be issued. During March 2016 the Claimant’s position appeared to change, albeit vacillating as to whether or not he would sign the disclaimer, which he eventually did on 31st March 2016. Overall in my judgement the position was looking more positive that the Claimant would cooperate with his return to Nigeria. While at the interview on 5th April 2016 he said that he had been told to sign the disclaimer, he immediately afterwards told the officers that he was happy to go back if they could find his mother and brother who were in Nigeria. That generally continued to be the position through April and then on 9th May a telephone number was provided for his uncle in Nigeria, which was passed on to the NHC.[100]It was only on 18th May 2016 that the NHC’s position changed to the extent that they were not prepared to issue the ETD with the ongoing judicial review proceedings, something which appeared to be accepted by the Defendant’s officers to the extent that he was not to be removed until those proceedings were concluded. However on 20th May the Claimant had said that he wanted to be removed on the flight to Nigeria and he was told that he should withdraw the judicial review proceedings. Although he said that he was not in contact with his solicitors, on balance I consider that overall it was not until the DR on 15th June 2016 that it became apparent that the continuing detention would have been in breach of Hardial Singh principle (iii) subject to a reasonable grace period to find suitable accommodation, which I have considered above. Accordingly I have concluded that there was no point during the period from October 2015 until 15th June 2016 when the Claimant’s continuing detention became unlawful as contrary to the Hardial Singh principles or otherwise.[101]For all the above reasons this claim for judicial review is allowed in part in that I find that the detention of the Claimant from 23rd June 2016 until his release on 13th September 2016 was unlawful. The assessment of damages including any relevant questions of causation should be transferred to the Queens Bench Division or the Central London County Court for determination as may be appropriate. I will receive submissions from the parties as to the appropriate form of order.

Cited in 2 later judgments