AYZ v The Home Office [2018] EWHC 2914 (QB)

[2018] EWHC 2914 (QB)Case No HQ16X03421
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 November 2018
Before
VERONIQUE BUEHRLEN Q.C.(Sitting as a Deputy High Court Judge)
Between
AYZClaimantTHE HOME OFFICEDefendant
David Chirico (instructed by Wilson Solicitors LLP) for ClaimantRory Dunlop (instructed by the Government Legal Department) for DefendantHearing Hearing dates: 17 to 19 October 2018
JUDGMENT As Approved by the CourtVERONIQUE BUEHRLEN QC:

Introduction

[1]At the outset of the hearing I granted the Claimant’s application for anonymity. Accordingly, I refer to him below as either “the Claimant” or AYZ.[2]AYZ is a national of the Democratic Republic of Congo (DRC). He was held in immigration detention at the direction of the Secretary of State from 9 July 2013 to 1 October 2015. A period of 2 years and nearly 3 months. He claims that for some or all of that period he was unlawfully detained. The factual background[3]The Claimant entered the UK in mid November 2005, aged 14, to be reunited with his mother, who had been granted asylum on the basis of her political affiliations in August 2004. The Claimant was granted indefinite leave to enter the United Kingdom and his passport stamped accordingly upon arrival.[4]Between 2007 and 2012, the Claimant built up a serious criminal record, receiving 15 convictions for 22 offences. These offences included robbery, attempted robbery, common assault, theft, burglary, animal welfare offences and breach of various community and rehabilitation orders.[5]In August 2011, the Claimant was arrested and remanded in custody for offences of violent disorder and aggravated robbery during the August 2011 London riots. Having pleaded guilty, on 24 February 2012 the Claimant was sentenced to 3 ½ years’ imprisonment.

Judge Morrison when passing sentence, said this of the Claimant:

“AYZ, you are involved in three matters, protracted disorder in the Wood Green area having disguised yourself with others in a gang like manner, preying on various sets of premises. You entered with a group, some of whom were armed, premises where there were members of staff who no doubt would have been scared witless. You robbed an innocent bystander walking home and took property from him. Your activity was over a number of hours when you had an opportunity to desist and leave but you did not, it is at a time when normal people thought that society was breaking down, it was highly publicised throughout this country, Europe and the world and it was as though law and order was breaking down and so of course a term of imprisonment is warranted on any number of grounds. If you had fought this matter, in other words, not admitted your guilt, the sentence I would have passed for the totality of your involvement that night would have been one of five years but you have had the courage to plead guilty, not as quickly as you should, and I also bear in mind that there is personal mitigation concerning your very difficult past …”
[6]The Defendant gave the Claimant notice of its intention to deport him on 5 March 2012 and requested that the Claimant set out any basis on which he might claim that he fell within one of the statutory exceptions to “automatic” deportation under section 32(5) of the UK Borders Act 2007. The Claimant’s solicitors, Wilson Solicitors LLP (“Wilsons”), replied on his behalf by letter dated 30 April 2012 stating that the Claimant’s removal would breach his ECHR rights and the UK’s obligations under the Refugee Convention. There was no suggestion that the Claimant might already have the benefit of refugee status. Rather he was claiming asylum and indeed the Secretary of State treated the Claimant’s response as an application for asylum. However, the 30 April 2012 letter did make the point that AYZ had been granted indefinite leave to enter the UK on an application for refugee family reunion to join his mother who had been granted refugee status in August 2004.[7]An OASys report dated 19 June 2012 prepared by the Highgate Probation Office concluded that the Claimant had a high risk of re-offending and presented a high risk of harm to the public in relation to further robberies and acts of criminality. The risk of the Claimant re-offending was set at 83% within 12 months and 91% within 24 months of release. The author of the report noted that in his view “the defendant’s current offences mark an escalation in the seriousness of his offending and indicate a growing pro criminal outlook on his part”. He went on to record:
“[AYZ] has committed three specified, serious offences under S. 15 of the CJA 2003 and meets the criteria to be assessed for dangerousness. His OVP score is high but there is no history that he has actually caused physical harm to anybody in the past. He is capable of causing harm but not necessarily at any time, therefore his risk of serious harm sits between medium and a high. He committed the current offences when he was homeless and possibly suffering from PTSD. There is some evidence that he played a leading role in the current offences. There is also the assessment from his current OM, Laura Spencer, that the dogs he mistreated in his previous offence were “weapon dogs” made deliberately vicious by their owner’s treatment so that they could be used to harm or intimidate others. In addition, Ms Spencer believes that he has gang affiliations with the Wood Green Mob. On balance, I consider it best to err on the side of caution and place him at a high risk of serious harm. This is because his homeless state, his possible PTSD and his gang membership/affiliations are not likely to be different when he is released on licence. In my assessment, these are the factors that may lead him to cause serious harm in an opportunistic or unplanned way, just as he did when he played a leading role in committing his current riot-related offences.”
[8]AYZ was interviewed for the purposes of his asylum application on 8 August 2012. When asked why he could not return to his home country, AYZ is reported as having said that the people who were after his mother when she left the DRC “will come after me” and that he feared they would kill him. However, he was unable to explain who these people were or why they would want to harm him. On 15 November 2012, the Secretary of State refused the asylum application making a deportation order under section 32(5) of the UK Borders Act 2007 on the basis that AYZ was a foreign criminal whose removal was conducive to the public good. The reasons for the decision are set out in a Minute from which it is apparent that no consideration was given to whether AYZ had refugee status. Rather the Minute records (it would appear mistakenly) that AYZ’s Family Re-union visa expired on 7 November 2007.[9]AYZ exercised his right to appeal to the First-tier Tribunal (FTT) on 23 November 2012.[10]On 10 April 2013, a Consultant Forensic Psychiatrist, Dr Joanna Dow, diagnosed AYZ as suffering from PTSD. Further, her report concluded that AYZ’s risk of re-offending was “medium” and that the risk of serious harm to others (where defined as death or serious personal injury whether that is physical or psychological) was “low”.[11]AYZ’s appeal hearing, listed for 29 April 2013, was then adjourned at the Secretary of State’s request to allow fresh evidence served by AYZ shortly before the hearing (including Dr Dow’s report, a witness statement from AYZ’s social worker, an expert report on the DRC and other material) to be considered. The hearing was re-listed for 8 July 2013. However, not yet having considered the further evidence presented by AYZ, the Secretary of State applied for a second adjournment shortly prior to the 8 July 2012 hearing. Meanwhile, it is clear from the Defendant’s contemporaneous internal emails that a question had arisen as to AYZ’s status as a refugee by virtue of his mother having been granted asylum in 2004.[12]On 9 July 2012, AYZ completed his custodial sentence and was detained under paragraph 2(3) of Schedule 3 of the Immigration Act 1971 on the basis that he was the subject of a deportation order. An IS91 was issued stating that the Secretary of State had authorised AYZ’s detention. The decision to detain is recorded in Minutes dated 9 and 10 July 2012 in which the Higher Executive Officer (HEO) responsible recorded that he agreed:
“with the case worker’s proposal that detention should be maintained. [AYZ] is a habitual offender who has been served with a signed DO and has been assessed as posing a high risk of absconding, re-offending and harm. He has lodged an appeal against deportation which is scheduled to take place on 25 September 2013. I do however have concerns over whether he is a recognised refugee because he entered the UK on a family reunion visa to join his mother who was granted refugee status. I have requested the file to investigate this issue. Detention authorised.”
[13]A one month detention review was undertaken by the Home Office on 6 August 2013. The Authorising Officer approved maintaining immigration detention for AYZ noting:
“[AYZ] is a habitual offender who has been served with a signed DO and has been assessed by the caseowner as posing a high risk of absconding, re-offending and harm. He has lodged an appeal against deportation which is scheduled to take place on 25 September 2013. Should an adverse decision be made and ETD progressed removal remains realistic. Enquiries are being made over whether he is a recognised refugee because he entered the UK on a family reunion visa to join his mother who was granted refugee status …”
A medical assessment was also to be carried out, the refugee status issue concluded and a NOMS report obtained.[14]Following an internal debate at the Home Office as to AYZ’s likely immigration status, by early August 2012 the Secretary of State had decided that AYZ should be treated as a refugee. A database entry dated 8 August 2012 records an internal request for a Cancellation/Cessation/Revocation (CCR) Action to commence. The file note, which appears to be a communication from the Criminal Casework Division to Criminal Casework in Liverpool, states:
“This case was with you in October 2012 where you reference he had refugee status (see CID noted on 19/10/12), but no action was taken and the case was eventually sent back to Croydon in June 2013. We have since established that this person is a recognised refugee, so I would be grateful if you can now commence CCR action … I have spoken with [redacted] from Operational Policy & Rules Unit and she has advised that it will be necessary to release him from detention, revoke his DO and re-do his detention due to him being a recognised refugee …”
[15]Shortly thereafter, the Defendant received an email from the police’s Haringey Gangs Unit in connection with a bail application for AYZ dated 8 August 2013. The email stated:
“I can confirm that [AYZ] is a member of one of Haringey’s most prominent Gangs, the Wood Green MOB (Money Over Bitches) or WGM for short. Their main adversaries are the Northumberland Park Killers (NPK) based in Tottenham. Prior to his incarceration, [AYZ], along with other WGM members, featured in a video uploaded onto You Tube entitled “Totty Yutes on Cam” in March 2012. The video showed two known NPK members being intimidated and held against their will on a bus in the Wood Green area. The NPK members are forced to make WGM gang hand signs and one is slapped across the face. In the video, [AYZ] is seen to be carrying a bag with what appears to be a baseball bat inside it. Consequently, when [AYZ]’s MAPPA is held, we will make application that [AYZ] be accommodated in Approved Premises outside Haringey. We will also make application that he not be allowed to enter the London Borough of Haringey without the prior permission of his Supervising Officer. We would do this both to lessen his risk of re-offending and also to limit the physical risk to him by opposing Gang members. This is necessary as both of the Gangs named above delineate their territory by means of postcode. In the event he is granted immediate bail at the address already supplied, I would suggest that you apply for the following condition: That [AYZ] does not contact, directly or indirectly, or be in company with, the following individuals (all WGM members): …”
[16]On 16 August 2013, the Detainee Escorting and Population Management Unit conducted a risk assessment and concluded that AYZ should remain in prison rather than an Immigration Removal Centre (IRC) due to the nature and seriousness of his offending.[17]A second month detention review was completed on 28 August 2013. Once more the caseowner considered AYZ as having a high risk of absconding, re-offending and harm to the public. However, he assessed the chances of removability as “Low” on the basis that a CCR Action was now required and a decision taken which he anticipated might take 6 months. The caseowner also planned to draft a release referral once information had been received from the National Offender Management Service (NOMS) and the Haringey Gangs Unit but recommended continued detention whilst the decision to revoke his deportation order was being considered by the Senior Case Worker team and the further information received. The authorising officer concurred that AYZ’s continued detention was justified on the basis that whilst the CCR Action was likely to delay deportation considerably, AYZ presented a high risk of harm, re-offending and absconding making it proportionate to maintain detention for a further 28 days.[18]Having decided that AYZ should be treated as having refugee status, the Home Office then revoked the deportation order the very next day, on 29 August 2013. A new IS91 authorisation was issued dated 30 August 2013. It identified AYZ as a foreign offender in relation to whom the Secretary of State was now considering whether section 32(5) of the UK Borders Act 2007 (automatic deportation subject to exceptions) applied. The form notified the custodian that AYZ might require special monitoring or supervision due to his serious criminal activity, known association and violence toward or assaults on others.[19]A NOMS report dated 16 September 2013, but based on the 19 June 2012 OASys Assessment report, assessed AYZ’s “Risk of Serious Harm” as High recording:
“[AYZ] poses a risk to the public. The nature of the risk is physical and emotional harm caused by violence/Robbery/use of weapons. He may pose a particular risk to peers with whom he is in conflict and rival gang members. [AYZ] is considered to be linked to the Haringey MOB gang and as such is likely to be in conflict with Tottenham based gangs from the borough.”
[20]The report repeated the Risk of Reconviction Predictor percentage scores recorded in the August 2012 OASys assessment, placing the risk of re-offending at High to Very High depending on the predictor used.[21]On 25 September 2013, the Home Office issued notification to AYZ of its intention to cease his refugee status. The 3rd month detention review was completed the same day. The caseowner’s estimate of the likelihood of removability remained “low” on the basis that a new CCR action was required but the assessment of AYZ’s risks of absconding and harm to the public remained High and his risk of re-offending Very High based on the conclusions of the September 2013 NOMS report. The Authorising Officer made the following comments:
“Based on the presumption to release and in line with the current guidelines as outlined in Chapter 55 of the Enforcement Instructions and Guidance, I agree with the case worker’s proposal that detention should be maintained. [AYZ] is a habitual offender who has been assessed as posing a very high risk of re-offending and a high risk of harm by his offender Manager. Furthermore there are reports that he has strangled his wife and forced her to take an overdose and has affiliations with a gang. I have also noted that his DO has been revoked in light of his refugee status but that the CCR process has started, in addition health issues have been raised in terms of PTSD and suicidal tendencies and further enquires have been made with HMP Wandsworth. I have carefully considered these issues and recommended that we should chase the prison to ensure a response before the next review and ascertain if [AYZ] is fit for detention, therefore in the absence of any evidence relating to his health issues but clear evidence of the risks he poses if released, I agree that he should be maintained for another 28 days.”
[22]Submissions were made by AYZ’s lawyers as to why his refugee status should be maintained on 9 and 23 October 2013.[23]A second OASys Assessment was produced on 15 October 2013 repeating the information and levels of risk assessment set out in the 19 June 2012 OASys Assessment report.[24]On 16 October 2013, the Home Office contacted the UN Refugee Agency (UNHCR) requesting their views as to whether AYZ’s refugee status should be withdrawn. That advice, supporting AYZ’s position, was received by the Home Office on 13 November 2013. Meanwhile, the Home Office continued to maintain AYZ’s detention considering in its monthly detention reviews that the risk of absconding, re-offending and harm presented by AYZ outweighed the presumption in favour of his release.[25]Then, just as it appeared that the CCR Action was about to come to a close, Philips J handed down judgment in R (P (DRC)) v SSHD [2013] EWHC 3879 (Admin) in which he concluded that there was a real and substantial risk that criminal deportees to the DRC, who had served their sentences in the UK, would be subjected to further imprisonment and ill-treatment if returned to the DRC. The Home Office took immediate steps to investigate the matter. First consulting with other states as to whether they were returning offenders to the DRC and, if so, what had happened to them. The response led the Home Office to believe that in fact there was no risk to criminal deportees upon their return to the DRC.[26]Then on 15 January 2014, the Home Office hosted a meeting between the Foreign and Commonwealth Office and the Directeur Central de la Chancellerie at the Direction General de Migration of the DRC (part of the Ministry of the Interior of the DRC) (the DGM). Two weeks later the Home Office withdrew its appeal in the P (DRC) case and on 16 February 2014 the Home Office issued a new “Country Policy Bulletin” on the DRC stating that there was “no substantive mistreatment of foreign national offenders on return to the DRC”. However, deportations to the DRC did not resume until October 2014, apparently (at least in part) because of delays in the DGM’s production of Emergency Travel Documents (ETDs) for deportees.[27]Meanwhile, the Defendant’s 6 month detention review for AYZ dated 12 December 2013 recorded the fact that a draft letter on the revocation of AYZ’s refugee status was awaiting approval, as well as guidance issued by the Home Office as a result of the judgment in P (DRC) to the effect that the Home Office and the Foreign and Commonwealth Office were urgently liaising with officials in the DRC and that the Secretary of State had permission to appeal the decision. Once more the Home Office concluded that detention should be maintained in light of their consideration of AYZ’s risk of absconding, re-offending and harm to the public.[28]On 23 December 2013, the Home Office refused an application on the part of AYZ for temporary release. The decision letter records that on 26 November 2013, a draft decision to cease AYZ’s refugee status had been passed by the asylum case worker to his or her senior case worker for approval and that once approved this would be served. Detailed reasons were given for the decision including the Home Office’s reliance on its assessment of AYZ’s risk of re-offending and/or absconding with reference being made to AYZ’s history of offending, the Judge’s comments on sentencing in relation to his 2011 offences, the September 2013 NOMS report, the letter from the Met’s Haringey Gangs Unit of 8 August 2013, AYZ’s previous breaches of the requirements of community orders in 2008 and 2009 and the fact that his index offences had been committed whilst on bail.[29]All the same on the 9 January 2014, whilst authorising continued detention upon undertaking the 7th monthly detention review based on AYZ’s high risk of absconding, the Authorising Officer expressed his concern at the delays noting: “[AYZ’s] CCR action was nearly complete when the High Court Judgment in the case of P&R was handed down. This has meant that consideration of all work involving DRC offenders had been placed on hold pending further guidance. However, as [AYZ’s] case is still some way from deportation and removal it is becoming more difficult to justify further detention without clear movement in our ability to serve the CCR and make a fresh deportation decision. Therefore, on the basis of [AYZ’s] high risk of harm, re-offending and absconding it is proportionate to maintain detention for a further 28 days. During this period the case owner should liaise with the Offender Manager to prepare a release referral to ensure his release can be robustly managed. A release referral should be submitted to the Strategic Director for consideration before the end of the review period”.[30]However, no release referral appears to have been submitted before the end of the review period.[31]The hold on work involving DRC offenders was lifted very shortly after the issue of the 16 February 2014 New Country Policy Bulletin and on 26 February 2014, the case worker assigned to AYZ submitted his draft decision to cease AYZ’s refugee status to the assigned Senior Case Worker to review. Revisions were made to the document which was returned to the Case Worker to revise on 12 March 2014 before being forwarded to the Senior Executive Officer for approval to send to the Assistant Director. The decision was then sent to the Assistant Director on 13 May and approval given by him on 15 May 2014. At the same time, the Home Office prepared to issue a deportation notice.[32]Meanwhile, at each monthly detention review, the Home Office concluded that AYZ should continue to be detained given what they assessed as his continuing high risk of harm to the public and of absconding and very high risk of re-offending. However, in late March 2014 the Home Office was clearly envisaging the possibility of releasing AYZ as the Authorising Officer recorded at the 10 month detention review:
“I note that we are now awaiting sign off of the decision to revoke the refugee status. If this has not been signed off within the next two weeks this should be escalated to me to raise with the Chief Caseworker. Further I note that the case owner has been attempting to progress the actions I requested in January 2014 relating to organising suitable release addresses in order to submit a release referral given that his removal will be some way off. Two addresses are yet to be approved. We must ensure we are following these actions up in appropriate time in order that we can submit a release referral as soon as possible. I appreciate that MAPPA may not wish for [AYZ] to be released given his very high risk levels however, while the prospect of removal is unlikely to be within a reasonable timescale we cannot continue to detain for a significant period. However we must ensure that release is managed appropriately in order to appropriately manage his risk within the community.”
[33]Similarly, at the 11 month detention review on 22 April 2014 the Authorising Officer noted:
“The risks of harm to the public and of reoffending have been assessed by the OM as high and very high respectively. This combined with a high risk of absconding currently outweighs the presumption of release. However, given the requirement to cessate [AYZ’s] refugee status removal is unlikely to proceed within a short timescale. In the circumstances I agree that detention should be maintained for a further 28 days pending a referral for release and while secure accommodation is identified by NOMS.”
Meanwhile, the caseworker was reported as actively working on securing a release address for AYZ with NOMS.[34]As at 21 May 2014, the Authorising Officer noted on the 12 month detention review:
“[AYZ] has amassed a significant number of convictions and is considered to pose a high risk of harm to the public, particularly due to his gang affiliations. We consider that he poses a high risk of absconding given his history of failing to committing offences whilst on bail and breaching the conditions of community orders. We do need to resolve the asylum issue quickly so that we can move forward with the deportation process. I agree to maintain detention on the basis of the risk of harm and absconding.”
[35]On 2 June 2014 a bail address was identified for AYZ and details of the property forwarded for NOMS approval. However, the address appears to have been considered unsuitable, although it is not clear why or by who.[36]The Notice of Decision to cease AYZ’s refugee status was issued to him on 2 June 2014 together with a new deportation order. AYZ exercised his right to appeal to the FTT on 9 June 2014.[37]The 16 June 2014 detention review records the fact that a cessation of refugee status and new deportation order had been served on AYZ, that he has appealed and that that appeal was due to be heard on 11 September 2014. Once more given the risks of absconding, re-offending and of harm to the public the authorising officer concluded that detention should be maintained albeit “for a further 28 days while secure accommodation is identified by NOMS/Section 4”.[38]On 27 June 2014, DC Gerard Martin Clarke (a Detective Constable on Operation Nexus which investigates high harm foreign national offenders) signed a witness statement reporting on the impact of gang related offending on the community and stating that he had identified some 325 reports listed against AYZ on the Metropolitan Police Criminal Intelligence System relating to gang involvement.[39]By letter dated 3 July 2014, the Home Office informed AYZ that he would initially be accommodated in NOMS approved premises and that the accommodation that had been provided by the Section 4 Bail Team was not suitable. The letter went on to ask AYZ to contact his case owner and probation officer to make the necessary arrangements for NOMS approved accommodation.[40]On 14 July 2014, the 14 month detention review concluded that AYZ could be removed within a reasonable time scale by reference to the fact that his appeal was due to be heard in September 2014 and that it remained proportionate to detain AYZ given his risk levels.[41]At the 15 month detention review on 4 August 2014, the Authorising Officer proposed that the Home Office now submit the already completed ETD pack to the DRC authorities.[42]On 3 September 2014, PC Andrew Foster signed a witness statement in relation to a police criminal intelligence report prepared by him on 27 April 2011 in connection with a music video available on “You Tube” entitled “Wood Green Mob – F**k a Family” featuring AYZ among others and his knowledge of the Wood Green MOB gang gained over a period of some 11 years whilst he was attached to the London Borough of Haringey. The witness statement details the history of the gang dating back to the early 1990s. It records a history of very serious and persistent violence and gang warfare. The statement identified a list of the gang’s current members and associates including AYZ.[43]AYZ’s 11 September 2014 hearing was then adjourned and a new hearing date of 30 March 2015 notified to him by the Courts and Tribunal Service on 30 November 2014. I have been unable to find any reason for that adjournment on the basis of the material presented at the trial.[44]As at the 17 month detention review (6 October 2014) the Home Office were awaiting the relisting of AYZ’s appeal. At this stage the Home Office considered that AYZ’s removal “remained realistic within a reasonable time-frame” and once more concluded that the risk of absconding, re-offending and harm continued to outweigh the presumption of liberty. The Detention Reviews undertaken on 3 November 2014, 1 December 2014, 29 December 2014, 26 January 2015, and 23 February 2015, largely replicate that view. Although the authorising officer on 1 December 2014 did ask that the IAC be contacted to bring forward the new March 2015 hearing date.[45]Then on 6 March 2015, AYZ’s solicitors applied for an adjournment of the 30 March 2015 hearing date pending their obtaining an up to date assessment of AYZ’s risk of re-offending. Notably, AYZ’s solicitors had become aware that his probation officer was preparing an OASys report in time for the expiration of AYZ’s criminal licence on 25 March 2015 that would continue to class AYZ as a high risk to the public. They wished to instruct Dr Dow to provide a further report as to AYZ’s risk of re-offending. On 12 March 2015 the appeal hearing was duly adjourned to 21 July 2015.[46]AYZ’s criminal licence expired on 25 March 2015. At this time, AYZ was in detention at an Immigration Removal Centre known as The Verne. A report intended to supplement the risk factors identified for custodians on AYZ’s IS91 Form was produced on 30 March 2015 stating:
“[AYZ] has been identified as one of the main players involved in violence and intimidation at The Verne. There is significant intelligence to suggest he is involved with gangs and intimidation at The Verne.”
[47]AYZ was then transferred from the Verne to Harmondsworth IRC on 1 April 2015. The files do not record whether that transfer was associated with the 30 March 2015 report (the Verne Report) or whether that report was prepared in light of the transfer. However, the Verne Report was then referred to in the following 20 April 2015 Detention Review. A further review on 18 May 2015 similarly continued to recommend maintaining detention pending the hearing of AYZ’s appeal now listed for 22 July 2015.[48]Meanwhile, the Claimant was refused bail on 1 May 2015.[49]The anticipated third OASys Assessment is dated 3 June 2015. The report continued to identify AYZ’s risk to the public as High (meaning there are identifiable indicators of risk of serious harm and that the potential event could happen at any time and the impact would be serious) whilst increasing his risk to staff and prisoners in custody from Low to Medium. This was no doubt to reflect information not previously recorded but which the Probation Officer concerned recorded in the 3 June 2015 report:
“[AYZ] does have a history of adjudications which have involved violent behaviour, including kicking a prisoner in the head (April 2012), getting another prisoner in a headlock, who he is reported to have assaulted before (May 2012), grabbing an officer (Jan 2012). These were provided in an OS report in July 2013. I have not had any reports regarding his behaviour since he moved to the Verne deportation unit.”
AYZ’s re-offending predictor scores fell, albeit only slightly, to a 79% risk of re-offending within a year of release and 88% within two years.[50]As at the 9 July 2015 Detention Review, the Authorising Officer further maintained detention commenting:
“He is a high risk violent offender; the appeal is due to be listed on 22 July 2015. I note the risks in this case, his gangs [sic] links and agree that he is not a good candidate for contact management. I agree that detention [sic] remains a reasonable prospect with a reasonable timescale and that continued detention is justified and proportionate.”
[51]Dr Dow’s second report is dated 12 July 2015. She assessed AYZ’s risk of re-offending and of serious harm to others (where serious harm is defined as death or serious personal injury whether that is physical or psychological) as “medium”.[52]AYZ’s deportation appeal was heard by the FTT Newport on 21-22 July 2015 and the appeal determined in AYZ’s favour on 17 August 2015 on the basis that his return to the DRC would violate Article 3 of the ECHR. The FTT further found that AYZ “demonstrated all the characteristics of a gang member, culminating in his participation with other gang members in the index offences”, that he was “entrenched in criminal behaviour” and that his claim of reform was not genuine. The FTT also found that AYZ’s deportation would be proportionate under Article 8. The Home Office appealed and AYZ cross appealed on the Article 8 point.[53]Meanwhile, a case note dated 14 August 2015 records AYZ’s case as having been reviewed by an Independent Detention Review Panel and a recommendation issued to consider a release referral “as removal is not imminent”.[54]One last Detention Review took place on 7 September 2015 in which the Authorising Officer noted that the Home Office had appealed the FTT’s decision on 1 September 2015 but that if no outcome was known within the next 2 weeks, a release referral should be submitted.[55]On 17 September 2015, the Probation Service approved an address for AYZ and AYZ was released on bail on 1 October 2015.[56]The Upper Tribunal granted both parties permission to appeal the FTT’s decision on 9 November 2015. In a decision promulgated on 25 August 2016, the Upper Tribunal upheld the FTT’s findings on Article 3. The law[57]It is common ground between the parties that a person is falsely imprisoned if he or she is detained without lawful authority and that the burden of showing that there is lawful authority lies with the detainer. Thus it is for the Home Office to show that AYZ’s detention was lawful throughout.[58]Section 3(5) of the Immigration Act 1971 (the 1971 Act) defines (for present purposes) when a person is liable to deportation from the UK:
“(5) A person who is not a British citizen is liable to deportation from the United Kingdom if: (a) the Secretary of State deems his deportation to be conducive to the public good […]” (a) the Secretary of State deems his deportation to be conducive to the public good […]”
[59]Further, at the material time, paragraph 2(3) of Schedule 3 to the 1971 Act provided that:
“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 (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”
[60]In the case of a ‘foreign criminal’ (and it is not in dispute that at all times AYZ fell within that definition), sections 32(4) and (5) of the UK Borders Act 2007 (the 2007 Act) provide:
“ (4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”
[61]Section 33 of the 2007 Act defines the exceptions to this ‘automatic’ deportation providing where material that: “(1) Section 32(4) and (5)—(a) do not apply where an exception in this section applies (subject to subsection (7) below) […] (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach— (a) a person's Convention rights, or(b) the United Kingdom's obligations under the Refugee Convention. […] (7) The application of an exception— (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.” (a) do not apply where an exception in this section applies (subject to subsection (7) below) […] (a) a person's Convention rights, or (b) the United Kingdom's obligations under the Refugee Convention. […] (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;[62]The 2007 Act also creates powers to detain. As material, section 36 provides:(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State— (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.[63]It is now trite law that those statutory powers of detention are subject to certain common law limitations better known as the Hardial Singh principles or limitations. As set out by the Court of Appeal in R(i) (I) v Secretary of State for the Home Department [2003] INLR 196 at 46 and approved by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, 264H-265B, the four Hardial Singh principles 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 that 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.[64]On occasion, I refer to the Hardial Singh principles below by way of shorthand as HS1 to HS4.[65]Lord Dyson went on at paragraph 104 of his judgement in Lumba to say that 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.”
[66]On a claim for unlawful imprisonment such as this, it is for the Court to undertake an objective review of the Home Office’s decision(s) to detain, or to maintain detention, on the basis of the material that was available to the Secretary of State at the time the decision(s) was/were made. That was made clear by the Court of Appeal in R (Mustafa Fardous) v SSHD [2015] EWCA Civ 931, [42] in which Lord Thomas said:
“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.”[67]As to the risk of absconding, in R (A) v. SSHD [2007] EWCA Civ 804 at [54] Toulson LJ said that:
“… where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made.”
[68]As to the risk of reoffending, he said at [55]:
“A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”
[69]As regards both risks, in Lumba , Lord Dyson said at [121]:
“The risk of absconding and reoffending 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.”
[70]In turn HS4 was considered in detail by the Court of Appeal in R (Krasniqi) v SSHD [2011] EWCA Civ 1549, [12] in which the Court held in the context of the Secretary of State’s obligation to act with reasonable diligence and expedition to effect removal, that:
“The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained.”
The Oral Evidence[71]I heard evidence from AYZ, and from Ms Katie Walton and Mr Timur Dellaloglu on behalf of the Home Office. In my view very little of that evidence was pertinent. Although he accepts that he was closely associated with gang members, AYZ denies that he was himself a gang member. As he put it in his witness statement dated 25 June 2018, “I have never been a formal gang member”. I do not need to make any finding as to whether he was or was not because, as already noted, my review of the decisions made by the Home Office falls to be made on the basis of the circumstances as they presented themselves to the Home Office at the time. Nor in my view does anything turn on whether AYZ was closely associated with gang members rather than a gang member himself. That said, the evidence supporting the proposition that AYZ was a member of the Wood Green MOB gang, which was before the Home Secretary at various points in time, in my view overwhelmingly supported the conclusion that AYZ was a gang member. It includes:(i) The Judge’s sentencing comments in relation to AYZ’s index offences including AYZ’s involvement in “protracted disorder in the Wood Green area having disguised [himself] with others in a gang like manner, preying on various sets of premises” and entering those premises with a group some of whom were armed;(ii) The letter from the Haringey Gangs Unit of the Metropolitan Police dated 8 August 2013 identifying AYZ as a member of the Wood Green MOB gang;(iii) DC Gerard Martin Clarke’s witness statement dated 27 June 2014 stating that he had identified 325 reports listed against AYZ on the Metropolitan Police Criminal Intelligence System (CIS) relating to gang involvement; and(iv) The witness statement of PC Andrew Foster dated 3 September 2014 who with 11 years of experience of the Wood Green MOB gang gained whilst he was attached to the London Borough of Haringey also identified AYZ as a gang member.[72]Ms Walton is a Grade 7 Assistant Director in the Criminal Casework division of the Home Office where she has worked since July 2002. She gave evidence that in her view AYZ’s detention was justified and that she would have made the same decisions had she been responsible for the case at the time in light of AYZ’s immigration and criminal history. However, Ms Walton was not actually involved in any of the decisions made. Her evidence is therefore based entirely on her review of the files. Accordingly, whilst helpful in terms of gathering the material together and providing a chronology of events Ms Walton’s evidence is otherwise not of any real evidential use to the decisions I have to make in relation to AYZ’s claim.[73]Mr Dellaloglu is the acting Country Manager for Country Liaison and Documentation Team 2, Returns Logistics. The team’s responsibilities include facilitating travel documentation and coordinates country focused return strategies for Sub-Saharan Africa and Algeria, therefore including the DRC. Mr Dellaloglu explained what was required for the purpose of effecting returns to the DRC and the delays experienced by the Home Office in effecting such returns post August 2013. There was nothing particularly controversial about his evidence. Summary of the Parties’ Main Submissions[74]Mr Chirico puts the case for the Claimant on four different bases.[75]His primary submission was that, in breach of HS4, delays caused by a failure on the part of the Home Office to identify AYZ as a refugee pre-dating his immigration detention on 9 July 2013 significantly increased the period for which AYZ was subsequently detained. This is because despite commencing removal steps against AYZ in March 2012, the Home Office did not recognise AYZ’s refugee status until early August 2013. This, it was argued, amounted to a failure on the part of the Home Office to exercise reasonable diligence and expedition to effect removal. Had the Home Office recognised AYZ’s refugee status at the time they issued the first deportation order against him (i.e. on 15 November 2012), then the decision to revoke AYZ’s refugee status would have been taken at that date rather than on 3 June 2014, as it in fact was. In turn, if one adopts the same timeframes as in fact pertained to the appeal of that decision to the FFT and subsequently to the Upper Tribunal, then the FTT would have finally determined AYZ’s appeal on 31 January 2014, and the Upper Tribunal confirmed those findings on about 31 January 2015. In those circumstances, submitted Mr Chirico, on the balance of probabilities, AYZ would have been released on 1 February 2015 and the period of his detention between 1 February and 1 October 2015 (7 months) was therefore unlawful.[76]In response, Mr Dunlop submitted on behalf of the Home Office that:(i) Like all the Hardial Singh principles, HS4 is a limitation on the power of immigration detention and has no relevance to what the Home Secretary does or does not do prior to the exercise of its statutory powers to detain: Lumba [30] and R (Dimpl Singh) v SSHD [2013] EWHC 380 (admin), [4], [5], [6], [37] and [52]. Indeed, if the Claimant was correct that HS4 is not “temporally limited”, that would mean that HS4 could be breached even where no power of detention was ever exercised by the Home Secretary;(ii) As was noted by the Court in Krasniqi, a failure of reasonable diligence and expedition under HS4 requires something more than maladministration; any mistake in not identifying AYZ as having refugee status prior to August 2013 did not constitute unreasonableness amounting to illegality for the purposes of HS4; and(iii) A failure to act with reasonable diligence and expedition will only sound in damages where it is causative i.e. the detention is longer than it otherwise would have been by reason of the failure on the part of the Home Office to exercise reasonable diligence and expedition. Whereas in this instance the length of the detention would always have been impacted by issues such as the judgement in P (DRC).[77]Mr Chirico also submitted that HS4 had been breached with regard to the period December 2013 (when the decision in P (DRC) was handed down) and 2 June 2014 being the date when the Home Office issued its decision on the CCR Action. Mr Dunlop submitted that there had been no breach of the Secretary of State’s obligation to act with reasonable diligence and expedition to effect removal during that period based on the facts of the case including the urgent steps taken by the Secretary of State to address the issues that arose out of Phillips J’s judgement in P (DRC).[78]Secondly, Mr Chirico submitted that AYZ’s detention was unlawful by reference to HS3 on the grounds that it was or should have been apparent to the Home Office no later than 29 August 2013, alternatively 9 December 2013, or 9 June 2014 or 17 August 2015 that there was insufficient prospect of AYZ being removed within a reasonable period having regard to the ongoing proceedings and obstacles to deportations to the DRC during the relevant period. When assessing what should constitute a reasonable time, Mr Chirico submitted that AYZ’s risk of absconding was at the lower end of the spectrum and that whilst the Home Office was plainly entitled to attach some weight to the risk of re-offending and causing serious harm too much weight had been given to this and too little done to take the steps required to reduce the risk. Further, there were serious obstacles to the removal of the Claimant including his appeal and the impact of the Court’s decision in R (P (DRC)). Lastly, Mr Chirico relied on the references in the Home Office’s own file notes to the need for release referrals and limited or contingent periods of detention to support his submission that AYZ’s detention became unlawful (because there was an insufficient prospect of deporting him within a reasonable period of time) no later than 29 August 2013, alternatively no later than 9 December 2013, or 9 June 2014 or 13 March 2015 or 17 August 2015.[79]In response, relying on R (Muqtaar) v SSHD [2013] 1WLR 649 [36], Mr Dunlop stressed the need for it to have become apparent that removal was not possible within a reasonable period of time together with the significance of the risk of absconding and re-offending when considering what constitutes a reasonable period of time for the purposes of HS3. He stressed the need for me to judge the issue on the material available at the time and not with hindsight. He also submitted that I should give weight to the views of the Probation Service on risk of re-offending and risk of harm and that whilst I was not bound to accept the Home Office’s assessment of the risk of absconding I should give weight to its experience of dealing with such matters.[80]Thirdly, Mr Chirico relied on HS2, submitting that AYZ’s period of detention reached the “outer limits of the reasonable period” when he was transferred to IRC The Verne in October 2014 having already been in immigration detention for 15 months. To this Mr Dunlop responded that the application of the 2ndHardial Singh principle adds nothing to the application of HS3 because (as already noted) the reasonableness of the period of detention cannot be considered in hindsight. Further, the reasonable period of time for which AYZ might be detained was a long one given his high risk of offending, absconding and harm to the public and factors such as his prolific criminal record, gang membership, acts of violence and intimidation whilst in detention and previous breaches of court orders.[81]Lastly, Mr Chirico submits that from 2 June 2014, AYZ was detained without any lawful authority at all. This was because the IS91 Form authorising AYZ’s detention issued on 30 August 2013 was limited to authorising AYZ’s detention whilst the Secretary of State considered whether section 32(5) of the 2007 Act applied. Accordingly a fresh IS91 was required once the Home Office had decided to revoke AYZ’s refugee status and that section 32(5) of the 2007 Act did apply and a deportation order had been served. None was issued. In support of that submission he prayed in aid the Court of Appeal’s decision in R (Gomez) v SSHD [2016] EWCA Civ 373 in which the Court of Appeal considered that the authority conferred by an IS91 form authorising Ms Gomez’ detention until a “deportation order is made or appeal against the decision […] is finally determined in her favour” ceased when the Secretary of State failed to give notice of appeal in time, with the effect that Ms Gomez’ appeal became finally determined in her favour.[82]To this Mr Dunlop responded that:(i) There is nothing in the statute to suggest that a new form of detention authorisation was required when moving from one statutory power to detain to another;(ii) On the contrary, once the Secretary of State has considered that section 32(5) does apply (as contemplated by section 36(1) of the 2007 Act), and a deportation order is made, section 36(2) requires the Home Office to exercise the power of detention under paragraph 2(3) of Schedule 3 of the 1971 Act (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate. This implies no need to start afresh and re-authorise the detention;(iii) Unlike the situation in R (Gomez) there was nothing on the face of the 30 August 2013 IS91 Form issued in relation to AYZ that limited the authority to detain; whilst a box was ticked under Detainee Information stating that the Secretary of State was considering whether section 32(5) applied, there was nothing to suggest AYZ could only be detained until a deportation order was made pursuant to that power;(iv) AYZ’s case turns on a cross in one box under section 2 of the Form that is concerned with detainee information (including languages spoken and dietary and religious requirements where known) not any limitation on the power to detain;(v) Chapter 55.6.2 of the Home Office’s Enforcement Instructions and Guidance (EIG) envisages the issue of only one IS91 for any continuous period of detention and does not mandate the issue of a new IS91 where a deportation order is made in criminal casework cases; and(vi) Further, even if this ground were made out, it would only entitle AYZ to nominal damages because AYZ suffered no loss; that is because if the Secretary of State had considered that she was under an obligation to issue a fresh IS91 in June 2014 she could and would have done so. Discussion[83]I deal with each of the bases on which the Claimant’s case has been put in turn. Although I note at the outset that in the context of the Hardial Singh principles there was no question that the 1st principle (namely that the Secretary of State intended to deport AYZ and was using the power to detain for that purpose) was met at all times. (1A) Breach of the 4thHardial Singh principle as a result of the Home Office’s conduct pre-dating AYZ’s immigration detention[84]The first question I must address is whether the 4thHardial Singh principle (which requires the Secretary of State to act with reasonable diligence and expedition to effect removal) governs the conduct of the Secretary of State for the Home Department prior to any decision being made as to whether to detain a subject. I do not think it does. The limitations imposed by the Hardial Singh principles apply to and are concerned with the exercise of the statutory power to detain. These principles are engaged when the Home Secretary makes a decision to detain or to continue to detain. They do not govern the conduct of the Secretary of State prior to making a decision to detain or in connection with a decision that is not a decision to detain, such as a decision whether to make a deportation order pursuant to section 32(5) of the 2007 Act.[85]Re Hardial Singh [1984] 1 WLR 704 concerned an applicant who was served with a deportation order following a two year prison sentence for burglary and who was then detained for five months under paragraph 2(3) of Schedule 3 to the 1971 Act, whilst the Home Office sought to obtain a travel document for him from the Indian High Commission. Woolf J (as he then was) said this:
“Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.”
[86]It is absolutely clear that the common law limitations envisaged by Woolf J that have become known as the Hardial Singh principles arose in the context of and are concerned with the exercise of the power to detain individuals pending removal and not with any other statutory power conferred on the Home Secretary. That has remained the case through the subsequent case law including notably the Supreme Court’s decisions in R (I) v SSHD [2002] EWCA Civ 888 (citing the judgments of laws J (as he then was) in Re Wasfi Suleman Mahmod [1995] Imm AR 311 and Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97) and R (Lumba) v SSHD [2012] 1 AC 245. As Lord Dyson said in Lumba at [30]:
“But all that the Hardial Singh principles do is that which article 5.1(f) does: they require that the power to detain be exercised reasonably and for the prescribed purpose of facilitating deportation.”
[87]Thus there is no blanket obligation imposed on the Secretary of State to commence various procedures towards the removal of a foreign criminal whilst serving a sentence and prior to immigration detention, although it might be sensible to do so: R (JS (Sudan)) v SSHD [2013] EWCA Civ 1378.[88]As Robin Purchas QC observed in R (Dimpl Singh) v SSDH [2013] EWHC 380 (Admin), circumstances may change. In that instance, the UK Border Agency had commenced the process of removal on 28 March 2011 (whilst the claimant was still serving his sentence) but did not commence the process of obtaining an ETD for the claimant until commencement of the claimant’s immigration detention on 20 May 2011. The Court held that:
“… it was reasonable to delay the actual commencement of that process until detention for the purposes of deportation formally commenced at the end of the custodial period, that is on the 20th May 2011. Until that date was reached, it was not certain that there would in fact be a need for detention and in any event the relevant circumstances might change.”
[89]Notably, Mr Chirico did not draw my attention to a single case in which the court had applied the 4thHardial Singh principle to the acts or omissions of the Secretary of State prior to an individual’s immigration detention.[90]Further, if the Claimant was correct and the 4thHardial Singh principle applied prior to detention that would mean that the 4thHardial Singh principle could be breached by the Home Office even though no power of detention was ever exercised. Although, it would not, as Mr Chirico rightly pointed out, give rise to a claim for damages since the breach would not have caused a prolongation of detention, there could still be a breach without any detention at all. That would make little, if any, sense.[91]It would also mean that a higher standard of diligence and expedition was expected of the Home Office when considering the removal of a foreign criminal serving his sentence than when considering the removal of someone who was at liberty and who had not committed a criminal offence. It is difficult to see why the fact that a subject is serving a prison sentence as a result of committing a crime should impose a higher standard of conduct on the part of the Secretary of State when considering removal. The fact that HS4 imposes an obligation on the Secretary of State to act with reasonable diligence and expedition arises because it is the Home Secretary who is responsible for the immigration detention. In other words it is not the fact that the subject is being detained (because he is serving a prison sentence) that imposes an obligation on the Secretary of State to act diligently to effect removal.[92]That is not to say that events pre-dating the commencement of an individual’s detention are not relevant. This is because circumstances pre-dating the commencement of detention may be relevant when determining the overall reasonableness of the period of detention for the purposes of the application of the 2nd and 3rdHardial Singh principles, or whether the Secretary of State has acted with reasonable diligence and expedition in effecting removal pursuant to HS4 given what has gone before.[93]Further, even if the 4thHardial Singh principle applied to the conduct of the Home Office prior to the commencement of the Claimant’s detention, he would still have to establish a breach of that principle sounding in damages. As already noted, it is not enough that some part of the process took longer than it should have done. For HS4 to be engaged there must be more than an administrative failing. There must be “unreasonableness amounting to illegality” (see Krasniqi cited above). Establishing that an act or omission on the part of the Secretary of State constitutes “unreasonableness amounting to illegality” is a high hurdle. It seems to me that applying that test outside the detention context is artificial because the detention context will inform what is unreasonable. However, be that as it may, in my view “unreasonableness amounting to illegality” has not been made out on the facts.[94]It is certainly the case that despite commencing the removal process against AYZ on 5 March 2012, the Secretary of State did not come to the conclusion that AYZ should be treated as having refugee status until early August 2013, about a month after his immigration detention began. As a result, rather than commence a CCR Action whilst AYZ was still serving his sentence, that action was not commenced by the Secretary of State until late August/early September 2013. However, whilst the Home Office might be criticised for not picking up on the fact that AYZ might have refugee status by virtue of his mother having been granted asylum at an earlier date, I do not think that failure is one that was so unreasonable as to amount to illegality. That is because in 2012 / 2013 the immigration status of the Claimant, a minor who had entered the United Kingdom in 2004 to be united with his mother (a refugee), was not clear.[95]That is evidenced by the fact that in late 2012 the Home Office’s Criminal Casework Directorate was asking what approach it should take to family members of refugees who had been granted leave to enter the UK for family reunion because of changes in the Family Reunion Policy over time. That policy as at April 2003 provided that “[i]f a person has been recognised as a refugee in the UK we will normally recognise family members in line with them. If the family are abroad we will normally agree to their admission as refugees”. However, refugee status was not automatic or inevitable, and in AYZ’s case there were no records addressing his status. The only available document was his passport that recorded that AYZ had indefinite leave to enter (ILE) the UK.[96]That the matter of AYZ’s status was not straight forward is further illustrated by the steps that were taken by AYZ’s lawyers, Wilsons. Wilsons (themselves experts in immigration law) did not raise the issue of AYZ’s existing refugee status until Mr Chirico made the point in a Skeleton Argument dated 23 April 2013 served shortly before the then anticipated hearing of AYZ’s appeal of the first decision to deport him on 29 April 2013. Instead in their letter of 30 April 2012, Wilsons claimed asylum for AYZ, impliedly accepting that he did not have refugee status. To be clear, I am not criticising Wilsons for that or for not then raising the point until 23 April 2013 in any way. However, this further supports the conclusion that AYZ’s status was not an obvious or straightforward issue to determine.[97]I also note that even once Mr Chirico had described AYZ as a refugee, there was an internal debate as to AYZ’s true status before the Home Office decided to assume that AYZ did indeed have refugee status. That is evidenced by various emails including an email dated 30 July 2013, in which Linda Smart of the Criminal Casework Operational Process & Policy Team at the Home Office was advising the Team Leader in the Criminal Casework Immigration Enforcement team as follows:
“We have taken advice of OPPU on this and in practical terms, we do not recognise an FNO as a refugee unless documentation exists or reference is made to refugee status to prove this is so. In terms of the 2003/2007 guidance which states that we will normally recognise family members in line with them, we would argue that normally is not the same as always. We do not take the stance that despite an absence of any mention of the word refugee, all family reunion cases in which the sponsor is a refugee leads [sic] to the automatic bestowal of the status on family members … In [AYZ’s] case there appears to be nothing on file in which he has been acknowledged as a refugee or he has described himself as a refugee in the look I had. The files will be returned to the caseowner for a closer scrutiny. His visa is for family reunion bestowing him with ILR, he was not issued a status letter and nor has he requested one, he has not applied for a travel document. If he applied for one now the most recent instruction IG 01/0811 Refugee family reunion – endorsements made on the 1951 Convention travel document (CTD) states: Staff should note that a family member granted entry clearance into the UK under the refugee family reunion rules may not in their own turn sponsor into this country other family members under Part 11 of the immigration Rules. This is because they are not deemed to be a refugee for the purpose of the 1951 Convention and have not qualified as such unless they make a successful application for asylum once in the UK.”
[98]Nor do I see how not identifying AYZ as having refugee status could amount to conduct on the part of the Home Office so unreasonable as to amount to illegality when if the Home Office had, for instance, commenced the process of removal 3 months prior to the expiry of AYZ’s sentence they could not have been criticised. On that basis, the Home Office would be worse off for having commenced the removal process at an early rather than a later stage.[99]Indeed, what becomes apparent is that it is not so much the initial failure to identify AYZ as someone who might have refugee status by virtue of the circumstances in which he entered into the UK that is at the heart of the Claimant’s case, but the time it then took for the Home Office to realise its mistake. However, that failure is even less likely to meet the hurdle of establishing unreasonableness amounting to illegality on the part of the Home Office. That is because having made a mistake it is then not surprising that the Home Office might then embark on what subsequently transpires to be the wrong procedure without going back to review the merits of the decision it has made unless something prompts it do so, as Mr Chirico’s skeleton argument did in this instance.[100]Nor in my view can it be said that the Home Office was not acting with reasonable diligence and expedition to effect AYZ’s removal in the period 15 November 2012 to August 2013; they were but they were doing so on what transpired to be the wrong basis, i.e. pursuing removal on the basis of a deportation order made pursuant to section 32(5) of the 2007 without first revoking AYZ’s refugee status.[101]Further, it was a mistake on the part of the Home Office that was quickly rectified once AYZ’s detention commenced on 9 July 2013 so that by 30 August 2013, the Home Office had decided that AYZ should be treated as having refugee status (regardless of the lack of records) and that the deportation order should be revoked, a new IS91 issued and a CCR Action, with a view to deciding whether AYZ’s refugee status should be revoked, commenced. Although even then (as already noted) the issue of AYZ’s status involved an internal debate within the Home Office. The Claimant, entirely correctly, does not seek to suggest that once his detention commenced the Home Office did not act with reasonable diligence and expedition in coming to the conclusion that AYZ ought to be treated as having refugee status and the first deportation order revoked.[102]In support of the submission that the failure to identify AYZ as a refugee did constitute unreasonable conduct on the part of the Home Office amounting to illegality, the Claimant relied on an email dated 7 August 2013 in which Linda Smart wrote that “I don’t think that the fact that he applied for asylum means that he wasn’t recognised as a refugee incidentally. He was 14. He may not have known what his status was. It is our job to understand his status”. That is no doubt correct. It was the Home Office’s job to understand AYZ’s status. However, it does not mean that understanding AYZ’s status was any more straightforward or that making a mistake as to that status was tantamount to conduct so unreasonable as to be illegal.[103]In the circumstances, I need not consider whether but for the fact that the Home Office did not recognise AYZ as having refugee status earlier, the period for which AYZ was detained would have been shorter. That issue would however beg the question of when the Home Office ought to have realised its so called mistake. The Claimant’s answer is 15 October 2012, being the date on which the first deportation order was made and when (had the Home Office appreciated AYZ’s refugee status) the CCR Action ought to have commenced. One particularly unattractive consequence of that, however, is that the Home Office would find itself being heavily penalised for having started the process of AYZ’s removal in March 2012 rather than, say, March 2013 when there was nothing obliging it to start the process so far in advance of the expiry of AYZ’s sentence. (1B) Breach of the 4thHardial Singh principle in the period December 2013 to June 2014[104]In an adjunct to this part of his case, the Claimant also submitted that there was no adequate explanation for what the Secretary of State was doing in the period between December 2013 (when the Home Office had all the necessary material to conclude that AYZ’s refugee status should be revoked) and the decision to revoke that status in June 2014. This, it was submitted, therefore constituted a further or alternative breach of HS4.[105]During the trial it became clear that this period had to be broken down into two shorter periods. The period December 2013 to 18 February 2014 and the subsequent period 18 February 2014 to 2 June 2014. That is because it was not arguable that the Home Office was guilty of any unreasonable delay amounting to illegality in the period 9 December 2014 to 18 February 2014. Quite clearly, the Home Office took several immediate and urgent steps to resolve the issue that arose with the handing down of Phillips J’s judgement in P (DRC) to the effect that there was a real and substantial risk that criminal deportees to the DRC would be subjected to further imprisonment and ill-treatment. Notably, in the same month as the decision was handed down, the Home Office surveyed the experience of other states in deporting criminals to the DRC and on 15 January 2014 the Home Office hosted a meeting between an official of the Foreign and Commonwealth Office and the appropriate DRC officials which subsequently enabled the Home Office to issue a new Country Policy Bulletin for the DRC on 18 February 2014. That Bulletin stated that there was no substantive evidence of mistreatment of foreign criminals to the DRC and that the Unsafe Returns reports were flawed. Given the terms of the decision in P (DRC), the Home Secretary could hardly be criticised for placing a hold on decisions involving the return of foreign national offenders to the DRC pending establishment of the true position for returning offenders.[106]It is then clear that shortly after the new Country Policy Bulletin was issued the hold on progressing removals to the DRC was lifted. The draft decision to revoke AYZ’s refugee status was nearly ready at the time the judgement in P (DRC) was handed down. Following the issue of the 18 February 2014 new Country Policy Bulletin, on 26 February 2014 David Nelson, the caseworker with responsibility for AYZ, forwarded his draft letter on revoking AYZ’s refugee status to the assigned Senior Case Worker (SCW) to review. The SCW returned the draft with amendments on 12 March 2014 (i.e. two weeks later) with instructions to accept the changes and action her comments on the draft before returning it to her to forward to the Senior Executive Officer (SEO) on the team to approve before sending the letter to the Assistant Director for final approval. The draft letter was then sent to the SEO on 12 March 2014 and on to the Assistant Director (presumably after having been approved by the SEO) on 6 May 2014. His authority to proceed was given on 15 May 2014. Meanwhile, the draft deportation decision letter and notice were being actioned so that the Notice was issued to AYZ together with a new deportation order on 2 June 2014.[107]Mr Chirico urged me to conclude that of this 3 ½ month period, 2 months constituted delay so unreasonable as to amount to illegality. I cannot accept that. I don’t think there is anything surprising in the fact that an important decision such as whether to revoke someone’s refugee status needed to be reviewed, amended and authorised at different levels of seniority within the Home Office or that it might take as much as some three months for that process to be concluded particularly given the workload under which the Home Office operates. Further the letter itself was clearly a detailed document dealing with complex issues that required careful preparation and review. This was not inactivity or unexplained delay such as the periods of delay experienced in JS (Sudan). Thus whilst one might take the view that it ought to have been dealt with quicker, not least because AYZ was in detention, and that in an ideal world it would have been, one cannot in my opinion take the view that the time taken from the lifting of the hold on proceeding with DRC returns in mid-to late February 2014 and the issue of the CCR decision on 2 June 2014 constituted a failure to act with reasonable diligence and expedition, i.e. that it was so unreasonable a period of delay as to as to amount to illegality within the meaning of the 4thHardial Singh principle. (2) Breach of the 3rdHardial Singh principle[108]The issue here is whether it should have been apparent to the Home Office that there was an insufficient prospect of AYZ being removed within a reasonable period no later than 29 August 2013, alternatively 9 December 2013 or 9 June 2014 or 13 March 2015 or 17 August 2015. As regards the length of the reasonable period the relevant factors the Claimant urged me to take into account were the risk of absconding, the risk of offending, place of detention, impact on the Claimant and his family and the effectiveness of the steps taken by the Home Office to deport AYZ – all factors identified as relevant by Lord Dyson in R (I).[109]As regards the risk of absconding, Mr Chirico submitted on behalf of AYZ that this risk was at the lower end of the spectrum at all material times. In my view that is not correct. AYZ had a history of not complying with court orders and not complying with bail, for instance committing his index offences whilst on bail. That would clearly suggest that he might well not comply with reporting restrictions placed on him if released. Indeed, that appears to be the experience of the Home Office case worker who made the point in the 6 August 2013 Detention Review when he wrote:
“Assessment of risk of absconding High – [AYZ] has convictions for failing to comply and breaching the conditions of community orders, as well as committing offences whilst on bail, that show he cannot comply with conditions placed on him, and shows he would not comply with reporting restrictions if released from detention.”
[110]Whilst I don’t adopt that assessment but make my own, I am mindful that the Home Office’s experience appears to be that those who fail to comply with court orders are more likely than others not to comply with immigration reporting restrictions. I don’t find that particularly surprising. Indeed, one might expect that if an individual had little respect for court orders he might well have even less for restrictions imposed on him by the Home Office in the context of immigration.[111]AYZ’s risk of absconding was all the higher because of his high risk of re-offending and the potential seriousness of that re-offending. As Lord Dyson observed in Lumba, with the risk of re-offending comes a higher risk of absconding since if a person re-offends he may take the view that he has more than one reason to abscond, i.e. both to avoid arrest and a possible custodial sentence and to avoid deportation. As discussed below, AYZ was considered by the Probation Service as having a Very High risk of re-offending as well as of causing “serious harm in an opportunistic or unplanned way”.[112]AYZ’s history also suggested that his family ties were not as strong as they might be which would also heighten the risk of absconding. For instance, he had chosen to leave home at 16 and his family could not assist in persuading him to mend his ways. Further, prior to his conviction in 2011 AYZ had no fixed abode, was moving from friend to friend and stopping at his mother’s from time to time. Thus unless and until the Home Office or someone else found AYZ somewhere to live, that was acceptable to NOMS, he had nowhere fixed to go to. Nor did he have any employment or immediate likelihood of finding employment given his lack of qualifications, both factors further increasing the risk of absconding.[113]Whilst AYZ had an appeal pending before the FTT from 9 June 2014 onwards which might have provided some incentive not to abscond (as was urged on me by Mr Chirico) he could but have considered that deportation was a very serious possibility given his offending history at least until his appeal before the FTT was successful. Accordingly, I do not think that is a factor that can carry much weight when compared to the other factors going to AYZ’s risk of absconding.[114]Accordingly, in my view the information available clearly supported the conclusion that AYZ presented a high risk of absconding which if he did would entirely defeat the purpose of the Secretary of State having commenced the removal process against him.[115]As regards the risk of re-offending, it is absolutely clear that the Probation Service (themselves experts in recidivism) assessed AYZ’s risk of re-offending as Very High. AYZ had a serious history of repeat offending with 15 convictions for 22 offences obtained in the space of 4 years. The 19 June 2012 OASys report assessed the risk of re-offending within 12 months of release at 83% and 91% within 24 months. The NOMS report dated 16 September 2013 (albeit based on the 19 June 2012 OASys report) repeated the Risk of Reconviction Predictor percentage scores of June 2012. It seems to me that it is not for the Home Office or for me to second guess the Probation Service’s assessments, let alone to reduce the assessments of the risk concerned because they are not up to date. A proper re-assessment might lead to the risk of re-offending going up or down. Indeed, that that is correct is well illustrated by the fact that when the Probation Service re-assessed AYZ’s risk of harm in 2015 they increased his risk of causing harm to staff and other prisoners because it transpired that whilst serving his sentence AYZ had committed a number of acts of violence including kicking another prisoner in the head. Matters that were apparently referred to in an OS report in July 2013 i.e. a report (which I have not seen) but which was produced at the time AYZ was first detained on immigration grounds.[116]Further, I don’t think that Dr Dow’s assessment of AYZ’s risk of re-offending as “medium” in April 2013 takes the matter any further. This is because it is clear on the face of Dr Dow’s first report that she did not have access to all the relevant material when preparing the report including the October 2012 OASys report let alone the subsequent material such as the OS report of July 2013 (dealing with AYZ’s behaviour whilst serving his sentence), the September 2013 NOMS report and the 8 August 2013 letter from the Haringey Gangs Unit. Notably, Dr Dow’s opinions was premised on her accepting that AYZ was not a gang member (see paragraph 50 of her first report). Accordingly, it is difficult to see how one could sensibly give greater weight to the views of Dr Dow than to those of the Probation Service on the matter of AYZ’s risk of re-offending in April 2013.[117]The same remained the case in July 2015 because whilst by then Dr Dow had considerably more information available to her, she herself recognised in her second report that she would defer her opinion on the risk of re-offending to an expert with more specific experience in recidivism (which must include the probation services) where there is no link between a person’s mental disorder and offending. That is because Dr Dow’s experience is primarily concerned with managing mentally disordered offenders and the interaction between their disorder and risks. Whereas in the case of AYZ, Dr Dow did not consider his PTSD to be linked to his risk of re-offending.[118]Mr Chirico also urged on me to take into account AYZ’s conduct in detention as demonstrating a continuing and clear improvement, including engagement with rehabilitation programmes while serving his custodial sentence but that submission was seriously undermined by the addition to the trial bundle on day 2 of the Trial of the OASys June 2015 report that referred to AYZ committing acts of violence towards others whilst serving his sentence.[119]Similarly, Mr Chirico submitted that the Court should assess AYZ’s risk of violent offending as “low” but again that is not a submission I can accept. The NOMS assessment of the risk of AYZ causing harm to the public was set at “High”. The Home Office’s Detention and Temporary Release Guidance makes clear at paragraph 55.3.2.6 that an offender’s risk of harm to the public is to be assessed by the NOMS and that case workers are to rely on those assessments. Having stated that AYZ posed a High risk of serious harm to the public, the NOMS report went on to state that:
“The nature of the risk is physical and emotional harm caused by violence/Robbery/use of weapons. He may pose a particular risk to peers with whom he is in conflict and rival gang members. [AYZ] is considered to be linked to the Haringey MOB gang and as such is likely to be in conflict with Tottenham based gangs from the borough.”
[120]That was in addition to the fact that AYZ had already been convicted of a number of violent crimes, that he had been found keeping “weapon dogs” made deliberately vicious by their owner’s treatment so that they might be used to harm or intimidate others and that he was a member of or at the very least closely affiliated with a very violent and prominent gang in Haringey whose main adversaries were based in the next borough.[121]Then in March 2015, AYZ’s IS91 was supplemented with the Verne Report stating that “[AYZ] had been identified as one of the main players involved in violence and intimidation at The Verne”. The circumstances in which that report was produced are not clear, although it seems to me that it is most likely that it was produced because of AYZ’s impending transfer from The Verne to IRC Harmondsworth on 1 April 2014. However, be that as it may, it clearly identified AYZ as being involved in violence and intimidation. AYZ says that was not true and that he would, for instance, not have been allowed to be number 1 server at the Verne if it were true. However, The Verne Report could not simply be dismissed or ignored by anyone looking to assess AYZ’s risk of causing harm to the public. It is and was on its face a report by The Verne authorities stating that AYZ had been identified as one of the main players involved in violence and intimidation at their facility.[122]Further, as already noted, the assessment that AYZ presented a high risk of harm to the public was maintained in the third OASys Assessment report dated 3 June 2015 which also saw the risk of AYZ causing harm to staff or other prisoners increase from Low to Medium as a result of AYZ’s behaviour whilst in custody.[123]Once more in my view I must place greater weight on the assessments provided by the Probation Services, who I would expect to have both the necessary experience of making the appropriate assessment and the greatest amount of information relating to the Claimant, and the information provided by the Police than on the reports of Dr Dow. Certainly one should not give precedence over the view of the Probation Service to Dr Dow’s first report, which assessed AYZ’s risk of harm to the public as “Low”. That is because, as already noted above, the report was clearly prepared on the basis of limited and incomplete information and Dr Dow’s acceptance that AYZ was not a gang member. Indeed, in my view that assessment lacks credibility.[124]Dr Dow’s second report was clearly based on a much wider investigation of the facts but again potentially significant material was not available to her such as the Verne Report. In light of the further information available to her, Dr Dow increased her assessment of AYZ’s risk of harm to the public from “Low” to “Medium”. All the same, I don’t think it would be appropriate to give greater weight to Dr Dow’s second report dated 12 July 2015 than to the conclusions of the Probation Services when those services had issued a third OASys Assessment on 3 June 2015 (i.e. little more than a month earlier) which continued to identify AYZ’s risk to the public as High and which increased his risk to staff and other prisoners, based on his conducting during custody, from Low to Medium.[125]In the circumstances, I am entirely satisfied that at all material times AYZ needed to be assessed as posing a high risk of serious harm to the public and that it was incumbent on the Home Office to take that risk into account when considering whether or not to detain and subsequently continue to detain AYZ.[126]As regards the other factors relevant to my assessment as to what constituted a reasonable period of detention:(i) AYZ was detained in prison until October 2014 when he was transferred to the Verne; this appears to have been the result of a Detainee Escorting and Population Management Unit risk assessment undertaken in mid-August 2013 that concluded that AYZ should remain in prison rather than be moved to an IRC because of the nature and seriousness of his offending. The IS91 of 30 August 2013 records AYZ as having been risk assessed on 16 August 2013 as being unsuitable for transfer to an IRC. Although a relevant factor I do not think this significantly affects what should constitute a reasonable period for the purposes of HS3, particularly when the place of detention was dictated by the Claimant’s own conduct.(ii) As regards the impact on AYZ and his family, it was established that the detention did not negatively impact AYZ’s health. The experts’ joint statement dated 10 September 2018 noted their agreement to the effect that AYZ’s experience of immigration detention did not worsen his PTSD or precipitate any other disorder. No particular point was urged on me by the Claimant in relation to his family. Accordingly, I find that this factor did not impact what constituted a reasonable period of detention.[127]The obstacles standing in the path of the Secretary of State in effecting the removal of AYZ at the outset of his detention comprised: i) Reviewing his immigration status to determine whether or not he was a refugee; ii) Subsequently, having determined that AYZ should be treated as having refugee status: a) Undertaking a CCR Action to determine whether AYZ’s refugee status should be revoked; and b) If revoked, issuing a deportation notice and maintaining the validity of that notice on appeal; and iii) Obtaining the necessary ETD from the DRC authorities.[128]As regards obtaining ETDs from the DRC authorities, the Claimant pointed to there being delays in obtaining these documents in 2014. Mr Dellaloglu explained that there were longer than anticipated delays in obtaining these documents in the twelve months up to August 2014. However, the records show that all the same 27 enforced removals to the DRC took place in 2013 including 8 Foreign National Offenders (FNOs)) and 20 in 2014 (including 6 FNOs) as compared to 42 (including 13 FNOs) in 2015. Clearly and whilst we know that removals were placed on hold as a result of the decision of P (DRC) in 2014, removals were taking place throughout the period of AYZ’s detention.[129]I have not seen anything to suggest that these obstacles could not reasonably be overcome in a period of 12 months. In turn, whilst the length of the period of time for which AYZ could reasonably be detained was not fixed it was a long one given his high risk of absconding and harm to the public, as well as his very high risk of re-offending, criminal record, gang affiliations, and acts of violence and intimidation both before and during his imprisonment and subsequent detention.[130]I further address the obstacles that stood in the path of the Secretary of State in effecting the removal of AYZ as a whole and as they arose over time, together with the steps taken by her to overcome those obstacles, when considering whether there was a sufficient prospect of removing AYZ within a reasonable period in relation to each of the specific periods of detention identified by the Claimant. For the purposes of undertaking that exercise I remind myself that the risk of absconding and re-offending are of paramount importance; as in my view is the risk of serious harm to the public, but that those risks (as important as they are) must be balanced against whether there was a realistic prospect of AYZ being removed within a reasonable period. 29 August to 9 December 2013[131]It seems to me that throughout this period there was a realistic and sufficient prospect of resolving the CCR Action within a few months and of the Secretary of State proceeding with issuing a deportation order which although it would be appealed by AYZ might well culminate in AYZ being removed within a period of 9 to 12 months. Given his risk of absconding, risk of re-offending and risk of causing serious harm to the public, this was in my view reasonable. Those risks were heightened by the information provided to the Home Office by the Haringey Gangs Unit in August 2013 and the September 2013 NOMS report. Accordingly, I find that there was no breach of the 3rdHardial Singh principle in the period 29 August to 9 December 2013. There is nothing to suggest that it was apparent prior to 9 December 2013 that the decision in P (DRC) would derail that process. 9 December 2013 to 9 June 2014[132]The judgement in P (DRC) did not automatically mean that no removals would be possible to the DRC within a reasonable time of that decision being handed down. I respectfully agree with the decision of Neil Garnham QC (now Garnham J) in BCT v SSHD [2014] EWCH 4265 (Admin) in which he held that the judgement in P (DRC) did not prevent there being a reasonable prospect of removal to the DRC. As Neil Garnham QC concluded in the BCT case at [50]:
“The judgement in P(DRC) meant that the Secretary of State had to reconsider her position and reassess the evidence as to the consequences of a return to the DRC. Within a relatively short period of time new material emerged, notably the discussion between the Foreign Office and the Directeur Central de la Chancellerie at the DGM, which suggested that the position may not be as concerning as the Ambassador had described. Thereafter, there was a realistic prospect of effecting removals to the DRC and, in fact, in October 2014 such removals recommenced.”
[133]To that I would add that on 18 February 2014 the Secretary of State issued the new Country Bulletin, to which I have already referred, stating (following the investigations undertaken by the Secretary of State) that there was “no substantive mistreatment of foreign national offenders on return to the DRC”.[134]The continuing risk of absconding, re-offending and causing serious harm to the public justified AYZ’s continued detention whilst the Secretary of State considered its prospect of appeal and took immediate and urgent steps to determine whether in fact the risks to returning offenders identified in P (DRC) were real or not.[135]That delayed the issue of the Secretary of State’s decision on the CCR Action but once the hold on DRC cases was lifted, there was no reason why that decision could not be finalised and issued and the removal process pursued to a successful conclusion within a reasonable period of time. Again the risk of absconding, re-offending and harm to the public weighs heavy in the balance. Further, whilst at this stage there are references in the Detention Reviews to preparing a release referral in light of how long it might yet take to effect removal, that does not in my view mean that there was no reasonable prospect of effecting removal within a reasonable time. For instance, reference to preparing a release referral in the 9 January 2014 Detention Review was made in the context of the hold on pursuing removals to the DRC following the decision in P (DRC) but that hold was lifted a month later. As a result the prospect of removing AYZ within a reasonable period clearly increased once more.[136]Further, it was in my view proper that the Secretary of State should take steps to prepare a release referral given that circumstances might change and that if AYZ was to be released that release would need to be very carefully managed in order to try to reduce the risks and in particular the risks of his re-offending and of serious harm to the public. Had the Home Office been able to obtain a bail address for AYZ that might have gone some way to mitigating some of the risks but that process was clearly difficult as is illustrated by the fact that several addresses proposed for AYZ in March 2014 and again in June 2014, were considered unsuitable, presumably by NOMS.[137]However, if one considers each decision to continue detention as it was made during this period in my view on each occasion there was a realistic prospect of effecting removal within a reasonable time taking into account the continuing risk of AYZ absconding, re-offending and harm to the public. 9 June 2014 to 13 March 2015[138]On 2 June 2014 the Secretary of State issued her decision to revoke AYZ’s refugee status and to issue a fresh deportation order. The prospect of achieving removal within a reasonable time therefore significantly increased albeit that on 9 June 2014 AYZ appealed that decision, as he was perfectly entitled to do. However, the fact that AYZ appealed the decision did not in and of itself mean that removal could no longer be effected within a reasonable period of time. By 16 June 2014, the appeal had been listed to be heard on 11 September 2014. Meanwhile, further evidence of AYZ’s gang involvement had been provided by DC Clarke stating that he had identified 325 reports on the Met’s CIS relating to AYZ’s gang involvement. Continued detention for a further 3 months pending the hearing of AYZ’s appeal was clearly reasonable given the continuing risks.[139]The hearing on 11 September 2014 was then adjourned. As at the 6 October 2014 Detention Review, the parties were awaiting the relisting of AYZ’s appeal. At that time, there remained a realistic prospect of removing AYZ within a reasonable time as no doubt one would anticipate that the appeal would shortly be re-listed and proceed.[140]However, on 30 November 2014, the parties were told that the matter had been re-listed for 30 March 2015. That was more than 6 months away. It clearly impacted the prospect of achieving removal within a reasonable period of time. However, at the 1 December 2014 Detention Review (the very day after learning that the matter had been relisted for 30 March 2015), the Authorising Officer gave instructions for the IAC to be contacted to bring forward the new hearing date. Accordingly, the subsequent decisions appear to have been predicated on the fact that the 30 March 2015 hearing date would be brought forward. Although, in the event, it was not in fact brought forward at any point.[141]There therefore remained a realistic prospect of removing AYZ within a reasonable time, all the more so if the 30 March 2015 hearing date could be brought forward and by February 2015, the appeal hearing was due to take place relatively shortly in any event. Further, yet more information had come to the attention of the Home Office with PC Andrew Foster expressly identifying AYZ as a member of the notorious Wood Green MOB in his 3 September 2014 witness statement. In the circumstances, although the unforeseen adjournment of the 11 September 2014 appeal caused delay, there continued to be a realistic prospect of effecting AYZ’s removal within a reasonable time always taking into account the continuing risk of AYZ absconding, re-offending and causing harm to the public. 13 March 2015 to 17 August 2015[142]The Claimant applied to adjourn the 30 March 2015 hearing date on 6 March 2015 with the result that the hearing was duly adjourned to 21 July 2015. It would be surprising if an adjournment sought by the Claimant resulted in the Claimant being released despite the continuing risk of absconding, re-offending and harm to the public. In this instance, those risks continued to be significant. Indeed, it was on 30 March 2015, that The Verne IRC issued the Verne Report stating that AYZ had been identified as one of the main players involved in violence and intimidation at The Verne.[143]It was also during this period that the OASys issued its third assessment dated 3 June 2015 reiterating that AYZ had a high risk of re-offending and remained a High risk to the public and referring to his violent conduct whilst in prison custody.[144]Both these reports reinforce the concerns as to the risks of AYZ absconding, re-offending or causing serious harm and justified AYZ’s continued detention pending the hearing of his appeal on 21 July 2015. Further, as the hearing of the appeal approached and once the appeal had been heard clearly the prospect of removal within a relatively short period of time substantially increased. 17 August to 1 October 2015[145]On 17 August 2015, the FTT found in AYZ’s favour. The Secretary of State filed an appeal which must have had some prospect of success not least given that the Secretary of State had not lost on all grounds before the FTT. There must therefore have remained a realistic prospect that AYZ might still be removed. However, the prospect of removal within a reasonable period of time, taking into account the two years AYZ had already spent in detention and the fact that a further appeal would now need to be listed, heard and resolved in the Secretary of State’s favour, was likely to have come to an end.[146]That said, some time was needed to review the position, to file the appeal and to consider and, if appropriate, take steps to mitigate the continuing risks that AYZ posed were he to be released. Steps such as obtaining a bail address for AYZ. Notably, the FTT had just held that AYZ “demonstrated all the characteristics of a gang member, culminating in his participation with other gang members in the index offences” and that he was “entrenched in criminal behaviour” and his claim to reform was not genuine. Given the risks posed by AYZ and the filing of the appeal, the need to give careful consideration to whether or not AYZ should be released and the need to take steps to manage that release in order to mitigate the risks of absconding and re-offending, the limited continued period of detention until 1 October 2015 was in my view justified.[147]Having considered all the circumstances including all the risk factors together with the obstacles that lay in the path of the Secretary of State in effecting deportation of AYZ, I have come to the view that a period of detention of up to 12 months was at all material times reasonable and that at no stage was it apparent that deportation could not be achieved within that period. Throughout the period of his detention, AYZ posed a high risk of absconding and of re-offending. He was assessed by the Probation Service as having a high risk of causing serious harm to the public and had a serious criminal record accumulated over a relatively short period of time. There was ample evidence before the Secretary of State that AYZ was a gang member as well as evidence that he was responsible for violence and intimidation whilst in custody and subsequently in detention. At the same time, effecting deportation required first that a decision be made as to whether or not AYZ’s refugee status should be revoked and, if revoked, that a deportation order be made and that AYZ have a proper opportunity to appeal that decision. Accordingly, it was never going to be a quick process. However, at the same time there was no reason to conclude that the process could not be completed within 12 months.[148]What happened is that steps towards achieving deportation took longer than envisaged because of the occurrence of various extraneous events such as the hold on pursuing removals to the DRC following the handing down of the judgement in P (DRC) on 9 December 2013 and the adjournments of the planned appeal hearings. However, those are events that occurred after the making of the key decisions. Thus it was not apparent in September 2013 that the decision to revoke AYZ’s refugee status would not be issued until 2 June 2014. Similarly, it was not apparent when AYZ’s appeal was filed on 9 June 2014 that it would not be resolved until 17 August 2015. (3) Breach of the 2ndHardial Singh principle[149]I agree with the Defendant that the 2ndHardial Singh principle does not add anything to the 3rdHardial Singh principle on the facts of the present case. Indeed, Mr Chirico accepted in his submissions that HS2 rarely adds anything to HS3. Since I have found that the 3rdHardial Singh principle was not breached on the facts of the present case, and since it is not appropriate to consider the reasonableness of the length of the period of detention in hindsight, it stands to reason that AYZ was detained for a period that was reasonable in all the circumstances. (4) No lawful authority to detain from 2 June 2014 onwards[150]On 30 August 2013, having decided that AYZ should be recognised as having refugee status and having revoked the first deportation order, the Secretary of State issued a fresh IS91 form in relation to AYZ. The form is addressed to “the custodian” and was expressly stated to “authorise the detention of” AYZ. It included a clear instruction that “this authority must be passed on to each successive custodian”. Further, and significantly for present purposes, a box on the form identified AYZ as “A foreign national who has served a period of imprisonment and the Secretary of State is considering whether section 32(5) of the UK Borders Act 2007 applies” with a footnote reference to section 36(1)(a) of the 2007 Act.[151]The Claimant submits that as a result the IS91 Form permitted detention of a person to whom section 36(1) of the 2007 Act applied. Absent clear expression, and interpreting any ambiguities in favour of the detainee (in accordance with the Court of Appeal’s decision in R (Gomez) v SSHDT [2016] EWCA Civ 373), the form did not authorise detention beyond the period when the Secretary of State was considering whether section 32(5) of the 2007 Act applied. In particular, it did not authorise detention once the deportation order had been signed and served on AYZ on 2 June 2014. Accordingly, AYZ was detained without lawful authority from that date until 1 October 2015.[152]The form clearly identifies AYZ as a foreign national who has served a period of imprisonment and with regard to whom the Secretary of State is considering deportation. However, that information is not stated for the purposes of identifying the basis or authority for the instruction or authority to detain. Nor is its purpose to limit the authority to detain. Rather it is part of information provided concerning the detainee. It identifies who the detainee is under the title “Detainee Information”. Thus (and merely by way of example since it is a long list) the detainee may be a passenger who has been informed on arrival or embarkation that he/she is subject to examination/further examination, or he may be a person who has been refused leave to enter the UK, or he may be a person subject to a deportation order, or a foreign offender whom the Secretary of State is considering deporting. The section then goes on to give further information concerning the detainee such as what languages they speak and what dietary/religious requirements they have.[153]There is nothing in the statute to prevent the Secretary of State from issuing one warrant authorising detention from the date the warrant is signed until the date when the detainee is released or removed and that warrant covering continuous detention where the statutory source of the power to detain changes. Hence, presumably, the form’s only outcomes being release or removal and not continuing detention under a new IS91.[154]Mr Dunlop also submitted that the statute implies that there is no need to re-issue a fresh warrant because where having considered the issue, the Secretary of State does consider that section 32(5) applies, pursuant to section 36(2) of the 2007 Act the Secretary of state must (“shall”) exercise the power of detention under paragraph 2(3) of Schedule 3 to the 1971 Act. However, I do not think that takes the matter much further because section 36(2) of the 2007 Act (in force from 1 August 2008 to 11 July 2016, which is the version applicable in this case) whilst providing that the Secretary of State would exercise the power of detention went on to state “unless in the circumstances the Secretary of State thinks it inappropriate”. Accordingly, continued detention was not necessarily automatic.[155]Mr Chirico submitted that any authority authorising detention is to be construed in favour of liberty and any ambiguity resolved in favour of the detained. That is undoubtedly right but I do not see any ambiguity here. The IS91 did not state that detention was authorised pending or until the Secretary of State had made a decision as to whether AYZ should be deported. There was no statement that AYZ could only be detained until a decision had been made under section 36(1). Rather the form simply identified AYZ as a person in relation to whom such a decision was being made at the time the form was issued.[156]Mr Chirico relied on the authority of R (Gomez) v SSHD. However, the circumstances of that case were very different to the present. In that case the IS91 form authorised Ms Gomez to be detained “until the deportation order is made or an appeal against the decision under Part II of the Act is finally determined in her favour”. The Court of Appeal held that once Ms Gomez’ appeal had been finally determined the authority to detain her expired. There is no such wording or limitation on the face of the IS91 the subject of these proceedings.[157]Mr Chirico also relied on paragraph 13 of Gomez in which the Court of Appeal expressed a “good deal of sympathy” for the proposition that the statute did not authorise an “ambulatory warrant” - that is, one where although the authority had lapsed it could be used to authorise a subsequent period of detention or detention from time to time. The argument in Gomez being that although the warrant had expired upon Ms Gomez’ appeal being finally determined (which happened when the time afforded to the Secretary of State for lodging a notice of appeal expired) it could be relied upon to authorise a subsequent period of detention once the Secretary of State had obtained permission to appeal out of time. However, that is not the position here. On the facts of the present case the authority to detain did not lapse or expire. It was continuous, albeit that the source of the power changed from one statutory provision to another.[158]Moreover, the IS91 form itself does not contemplate any further IS91 form being issued because of a change to the statutory basis on which the detainee is being held. On the contrary, it states that “this authority must be passed on to each successive custodian as appointed by the Immigration Service” and contemplates (in a box marked “OUTCOME”) that the outcome of the detention may be one of two things: removal from the UK or release. It is inherent that the outcome could not be removal in the case of a foreign offender in relation to whom the Secretary of State was considering whether section 32(5) applied without a deportation order then being made i.e. without the source of the statutory power of detention moving from section 36(1) of the 2007 Act to paragraph 2(3) of Schedule 3 to the 1971 Act.[159]Further, the form does not contemplate a further form being issued despite the fact that it is obvious on the face of the IS91 form itself that the status of the detainee may change in a number of ways over time. For instance, a detainee identified on the form as a foreign offender to whom the Secretary of State considers that section 32(5) applies, though a deportation order is still pending, may well become a person subject to a deportation order. It is also difficult to see what purpose would be served by the Secretary of State being required to re-issue a fresh IS91 form as a detainee progressed through each stage of the removal process. In practice, this would mean simply re-issuing the form with a cross placed in a different box e.g. now identifying the detainee as a person in relation to whom a deportation order had been made rather than a person with regard to whom the Secretary of State was considering making a deportation order.[160]Lastly, I agree with Mr Dunlop that this construction of the IS91 form is consistent with paragraph 55.6.2 of the Defendant’s EIG which provides:
“Form IS91 is issued once and only once for any continuous period of detention, irrespective of how many detaining agents there are during the course of a person’s detention. The exceptions are: where there is alternation in risk factors when DEPMU will authorise the issue of a new IS91, which should be sent to the detention location to be attached to the original form; and in criminal casework cases if the IS91 is re-issued when a deportation order has been signed.”
(emphasis added)[161]Accordingly, whilst paragraph 55.6.2 of the EIG contemplates that a new IS91 may be issued in criminal casework cases when a deportation order has been signed it does not require a new form to be issued. The general rule is clearly that only one IS91 will be issued in relation to a continuous period of detention.[162]Furthermore and significantly, even assuming that the Secretary of State ought to have issued a fresh IS91 in relation to AYZ on 2 June 2014, that would be of little practical import to the Claimant. That is because it is clear that had the Secretary of State appreciated that a new IS91 Form needed to be issued in June 2014 she could and would have issued one. By could I mean that the Secretary of State could lawfully exercise the power to detain in June 2014 when having decided to revoke AYZ’s refugee status she made an order to deport him (see R (VC) v SSHC [2018] EWCA Civ 57 at [60]-[62]. Indeed, pursuant to section 36(2) of the 2007 Act, she was under an obligation to detain unless she thought it inappropriate which given AYZ’s risks of absconding, re-offending and causing harm to the public was unlikely. As already noted above, I have found that the exercise by the Secretary of State of the power to detain in June 2014 was not unlawful pursuant to the Hardial Singh principles.[163]False imprisonment is a tort. Accordingly, damages fall to be assessed so as to put the Claimant in the position he would have been in had the tort not been committed: see Lumba per Lord Dyson at [93], [95 – 96]). Here, if the Secretary of State had appreciated that (on the Claimant’s case) a fresh IS91 needed to be issued, she clearly would have issued one and the Claimant would in any event have continued to be detained. Accordingly, the Claimant suffered no loss and would only be entitled to nominal damages. Conclusion[164]For the reasons set out above, I am therefore satisfied that the Claimant was not unlawfully detained in the period 9 July 2013 to 1 October 2015, that the Defendant did not breach the Hardial Singh principles and that the IS91 Form dated 30 August 2013 continued to authorise AYZ’s detention post 2 June 2014.[165]Accordingly, the claim is dismissed.

Cited in 1 later judgment