Title: High Court Judgment Template
Author: icp90h
Last saved by: BAILII
Company: RCJ - In House Applications

Case No: CO/348/2013
Neutral Citation Number: [2013] EWHC 1248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17 May 2013 

Before :

MR ROBIN PURCHAS QC
(Sitting as a deputy judge of the High Court)
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Between :

| THE QUEEN (on the application of HAMUDA AZAROAL) | Claimant
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| SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant

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Mr Nick Armstrong (instructed by Deighton Pierce Glynn) for the Claimant
Mr William Hansen (instructed by Treasury Solicitor) for the Defendant

Hearing dates: 8^th and 9^th May 2013
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Judgment
Mr Robin Purchas QC: 

Introduction
1.	The Claimant seeks judicial review of his detention by the Defendant under paragraph 2 of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”).  His challenge relies on two related grounds: 
(i)	that the detention is unlawful having regard to the Hardial Singh principles and 

1984 1 WLR 704

(ii)	that in the circumstances his detention is in breach of his rights under Article 5 of the ECHR.
The relief claimed includes a declaration and damages for unlawful detention.

Background
2.	The Claimant claims to have been born in Algeria and now to be 43 years old.  On his account he was sexually abused as a child and left home at the age of 11.  Thereafter he says that he spent time in Italy, being diagnosed in 1986 as suffering from epilepsy.  He is recorded as having entered Belgium illegally by 2005, giving a false name and claiming Iraqi nationality.  He claims to have entered the United Kingdom illegally in 1997.  

3.	While he had occasional employment, he was mostly homeless and became subject to alcohol and drugs abuse, resorting to theft and other crime to finance his abuse.  He was arrested for theft but thereafter absconded.  He was encountered in July 2009 and detained.  He was sentenced to 90 days imprisonment for offences of dishonesty.   He refused to take part in an interview for the preparation of an emergency travel document (ETD) application.  He was then released on reporting conditions but again absconded.  

4.	On the 23 April 2010 he was arrested for robbery involving a violent attack on a lone woman at night.  He refused to cooperate with an ETD interview.  On the 19 November 2010 he was sentenced to 30 months imprisonment for the robbery offence.  In his sentencing remarks the judge described the attack as brutal, involving repeated punches to the head and face.  However he accepted that it was isolated in the sense that the Claimant did not have previous convictions for offences of that gravity.  In the pre-sentence report the probation officer described the Claimant as presenting a medium risk of serious harm to members of the public through theft and robbery as the Claimant had a drug and alcohol habit to sustain, but that abstinence from drugs and alcohol would reduce the risk.   

5.	Having been sentenced, in December 2010 the Claimant stated that he did not want to return to Algeria and refused to complete the relevant ETD form.  However, in February 2011, having made an asylum claim which he then withdrew, the Claimant indicated that he did want to return to Algeria and entered the Facilitated Returns Scheme (FRS).      

6.	On the 7^th March 2011 a deportation order was made for the removal of the Claimant.  On the 18 March 2011 the Claimant provided bio data information, including his last known address in Algeria as La Belle Vue, Rue des Fleurs, Bloc B 36, Hnaya, Tlemsen, as well as  his mother’s name and maiden name and place of birth but no other details.  That information was sent to the British High Commission in Algeria for pre-verification for an ETD application.  Checks were also made with Interpol.  By September 2011 the British High Commission had commenced area inquiries to verify the address which had been given by the Claimant but without success.  

7.	On the 13 October 2011 the Claimant was released from custody and thereafter detained, pending deportation, at the Dover Immigration Removal Centre (IRC).  

8.	On the 25 November 2011, the investigations by the High Commission having still failed to verify the address, a letter was sent by the Defendant  to the Claimant requesting him to obtain further supporting evidence and to contact the Algerian Consulate directly to address his ETD.  

9.	On 19^th January 2012 the High Commission interviewed the Claimant by telephone.  The Claimant claimed not to have any additional information.  The relevant officer formed the view that the address that he had been given was false, although the district existed.  He suspected that the family was of a different name.  The officer was going to have further inquiries made involving a visit to the alternative address.  However he concluded “I think that it is our last attempt because the guy is really not wanting to come back even though he is saying the contrary.”   

10.	On the 2 February 2012 the Defendant wrote to the Claimant telling him that he would be taken off the FRS because of his failure to assist the verification process and again advising him to contact the Algerian Consulate directly regarding the ETD.  

11.	In May 2012 the Claimant wrote to the Algerian Consulate, giving the same address and asking why the information was said to be false.  

12.	In July 2012 the Claimant was moved to Brook House IRC and required to share a room.  Because of his previous experience of abuse, he became upset and distressed at that prospect and suffered an epileptic seizure, resulting in injury and his being taken to hospital.  On his return he was told that he would have to continue to share accommodation and on the 14 July he self-harmed by cutting his abdomen a number of times.  

13.	In August 2012 the Defendant obtained a NOMS OASyS assessment of the Claimant.  The assessment  concluded that there was a low risk of serious harm,  that the circumstances likely to increase the risk was the use of alcohol or drugs and that the factors reducing the risk included completing a drug programme and exploring his sexuality in counselling.  For this purpose the OASyS guidance defined risk of serious harm as “a risk which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, can be expected to be difficult or impossible”.   

14.	On the 5 October 2012 solicitors for the Claimant sent a pre-action protocol letter to the Defendant claiming that the continuing detention of the Claimant was unlawful.  On the 16 October 2012 the Algerian Consulate arranged a telephone interview with the Claimant, following which the Consulate carried out further inquiries into the Claimant’s case.  On the 19 October 2012 the Defendant responded to the pre-action protocol letter stating that the Defendant was doing all she could to expedite the Claimant’s removal.  Subsequently the Algerian Consulate requested the Defendant to make an ETD application for the Claimant, which was thereafter processed, including his re-interview on the 21 January 2013 and the submission of the application on the 25 January 2013.   Although the case worker responsible for the Claimant’s case, Andy Kupoluyi, states in his witness statement dated 2 May 2013 that the ETD application contained a revised address for the Claimant, the address given  was in fact the same.  

15.	On the 1 October 2012 Brook House had arranged for the Claimant to be seen by Dr. Kimber, who is a neurologist.  In his report he sets out the symptoms of seizure, recommends that the Claimant has an MRI brain scan and ECG and prescribes medication.  On the 21 October 2012 Dr Nuria Genẻ-Cos, a consultant psychiatrist instructed by the Claimant, saw the Claimant and her findings are set out in her report dated the 24 October 2012, which was provided to the Defendant.  In that report she applied the tests for post traumatic stress disorder (PTSD) concluding that the Claimant met the criteria for severe PTSD.  She concluded that the most likely reason for the Claimant’s mental ill health was prolonged abuse suffered as a child but that in addition his current situation in the detention centre where he has to share a dormitory with other men was “a major trigger and destabilising factor in his current mental pathology”.  She concluded at paragraph 28: 

“The usual treatment for people who present with severe developmental trauma (PTSD) and co-morbid depression  is long-term therapy which usually will last for about three years.  Because of the complexity of this case, a combination of group and individual therapy may be beneficial.  In order to embark on trauma therapy, a patient has to feel safe enough, as it requires a painful and difficult journey through past traumatic events.   This helps the person to regulate mood, decrease hyper-reactivity and become more integrated.  In the case of (the Claimant) because of the high levels of arousal and disassociation, I would expect that medication may be necessary ... and a period of social stabilisation prior to being able to start any trauma therapy.  The current situation at the detention centre, where(the Claimant) shares a dormitory with other men is highly triggering, which increases his ongoing psychological difficulties, as he feels constantly terrified that he is going to be assaulted as he sleeps.  I would strongly recommend that he is allowed to have his own sleeping space, without needing to share with other people.  There are risks that he may deteriorate even further if his psychological needs are not attended – he could become more depressed, and has potential for becoming suicidal and/or psychotic.” 

16.	On the 17 November and 18 December 2012 Brook House arranged for the Claimant  to be seen by Dr Anderson, a physician.  He was seen by another physician on the 19 December 2012.   

17.	On the 26 December he was moved at short notice to Morton Hall IRC.  Following advice by a doctor who saw him on 27^th December  he was returned to Brook House the following day.  

18.	On the 14 January 2013 the judicial review proceedings were issued.  On the 16 January 2013 Brook House arranged for Dr. Thomas, a physician, to see the Claimant who concluded that there was no deleterious effect from detention and as such no basis for a report under Rule 35.  He subsequently wrote confirming his opinion that the health care team were able to meet the Claimant’s clinical needs and that there was no reason if he needed to travel why he could not. On the 27 January 2013 the Claimant was seen by a registered mental health nurse and explained why he required a single room.  He was then given his own room.  

19.	On the 6 February 2013, Dr. Genẻ-Cos provided an addendum report based on updated medical reports.  She noted in that report that the Claimant appeared to have improved somewhat since she had last seen him, that his mood at the time appeared brighter and there was no on-going self-harm behaviour.  She concluded that that was probably due to his medication.  She noted that he was not sharing a bedroom.  She was concerned about his medication.  In regard to psychological therapy, she noted that that had not been addressed and was not available at the detention centre.  She advised that ultimately psychological therapy will be the way back into a normal fulfilling and productive life in society but that medication may help while he is waiting to have trauma therapy.  She referred to the seizures and highlighted the importance of a neurologist and neuro-psychiatrist seeing the Claimant as his epilepsy was not well managed in spite of high levels of anti-epileptic medication.  

20.	It will be recalled that the Claimant had in fact been seen by a neurologist on the 1 October 2012.  He was seen again by the neurologist on the 27 March 2013 who reported that both his MRI and EEG were negative.  In view of the Claimant’s concern about his weight gain, he prescribed a change in medication and was to arrange for him to have a sleep deprived EEG. The Claimant’s solicitor in her witness statement dated the 29 April 2013 noted that he was still not receiving the changed medication.   

21.	On the 7 February 2013 the application came before Mostyn J, who ordered that the application was fit for expedition and that there should be a rolled up hearing, to be listed not before the 7 May 2013.  He ordered that the Defendant should use her best endeavours to track the progress of the application for an ETD and should file a witness statement addressing that progress not less than seven days prior to the hearing.  I understand that Mostyn J was informed of the position set out above.  It can be inferred that, notwithstanding the order for expedition, the delay in listing three months from the date of the application was to enable the Defendant to satisfy the court as to the progress of the application for the ETD and otherwise in respect of the prospects for removal.  
22.	On the 4 April the Claimant was moved back to Morton Hall IRC again at short notice.  In his written statement he records that he became upset, including because the doctor had reduced his supply of lorazepam and codeine because they were said to be addictive.  

23.	On the 11 April the Claimant started to refuse food and liquids.  He was seen by Dr Genẻ-Cos on the 13 April 2013 while he was still refusing food or liquids.  Her report is dated the 22 April 2013.  The Claimant reported that his codeine and lorazepam had been withdrawn in one go. He was aware that Dr Gené Cos had highlighted the need for these to be withdrawn but he had negotiated for a gradual withdrawal without success. The Claimant became angry. He was in a distressed state. He had a high depression inventory scale within the very severe range with high suicidal risk.  She confirmed her earlier diagnosis that the sudden transferral from Brook House to Morton Hall IRC and the overall length of his detention was having a major impact on the Claimant’s mental and physical health.  “(The Claimant) is at high risk of psychosis, suicidal behaviour and serious physical ill health”.  She commented that his medication should not have been withdrawn abruptly but should have been withdrawn progressively.  She concluded “Were (the Claimant) to remain in detention I believe that his mental health would deteriorate; he could become psychotically depressed and acutely suicidal.”  

24.	Following Dr Genẻ-Cos’s visit to the Claimant, on the 14 April the Claimant was transferred to Harmondsworth IRC. The Claimant resumed eating and drinking on the 16 April 2013. The medical reports note that from the 16 April the Claimant was feeling well with no complaints.  

25.	On the 2 May 2013 the Defendant filed the witness statement of the case worker Mr Kupoluyi who summarises what is recorded in the Defendant’s files as to the actions taken in progressing the ETD application since the 7^th February.  On 17^th April 2013 it was agreed that further Interpol checks would be made but results were awaited.   On 1^st May 2013 the caseworker had contacted the Algerian Consulate and spoken to an official but “unfortunately they were unable to help as it was a public holiday in Algeria and they were closed”.  The witness statement then concluded at paragraph 28 

“In general terms an ETD application to the Algerian Consulate with no specific supporting evidence can take between 6 and 12 months for a response depending on the address details on the application.   As this is an application following a telephone interview, a response can be expected quicker.  The application has now been added to a “priority list” which is a list of cases where an update is requested on a weekly basis from the Algerian Consulate.  Although no specific time frame has been provided, it is thought that a response from the Algerians can be expected shortly.”

From that witness statement it would appear that the application was only included on the priority list shortly before the 2 May 2013. No update had been provided by the date of the hearing.  

26.	On the 8 May 2013, the Defendant confirmed that accommodation and support would be available under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) if he was released from detention at an address in Sunderland.  

27.	I have been provided with guidance on obtaining ETD including guidance dated December 2012 that processing would take 6 to 12 months for no supporting evidence “depending on the depth of the address details on the application”.  The Horizon database sets out the procedure for applications to the Algerian Consulate for an ETD, which emphasises the importance of pre-verification by the British High Commission before submission.  The advice explains the importance of the last known address in Algeria.  It also notes that the Algerian Consulate have requested that the Home Office do not seek review of cases before three  months, as this is the average timescale for verification checks to be completed.   

28.	The Court has been provided with reports of the Chief Inspector of Prisons on Brook House and Harmondsworth IRCs in 2011 and 2012, which draw attention to concerns in connection with the provision of mental healthcare and counselling.  

Legal framework
29.	The power to detain a person who is subject to a deportation order pending their removal in the United Kingdom is provided under paragraph 2(3) of Schedule 3 to the 1971 Act.  In Hardial Singh 1984 1 WLR 704 Woolf J, as he then was,  held that, while the power of detention was not subject to any express limitation of time, it was subject to principles as to reasonableness.  Those were summarised by Dyson LJ, as he then was, in R (I) v. SSHD 2002 EWCA Civ 888 at paragraph 46 as follows:

“(i)	The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
(ii)	The deportee may only be detained for a period that is reasonable in all the circumstances.
(iii)	If before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, it should not seek to exercise the power of detention.
(iv)	The Secretary of State should act with reasonable diligence and expedition to effect removal.”

Dyson LJ continued: 

“47.	Principles (ii) and (iii) are conceptually distinct.  Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period.  Once a reasonable period has expired, the detained person must be released.  But there may be circumstances where, although a reasonable period has not expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period.  In that event principle (iii) applies.  Once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.  

48.	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(iii) of Schedule 3 to the Immigration Act 1971.   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 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.”

30.	Those principles were further considered by the Supreme Court in R (Lumba) v. SSHD 2011 2 WLR 671 where at paragraph 44 Lord Dyson confirmed that the burden of justifying detention lay on the Secretary of State.  He continued at paragraph 103 in respect of the application of the Hardial Singh principles:

“The convenient starting point is to determine whether, and if so, when, there is a realistic prospect that that deportation will take place.  As I said at paragraph 47 of my judgment in I’s case, there may be situations where, although a reasonable period has not yet expired it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention.  I deal below with the factors which are relevant to the determination of a reasonable period.  But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.”

At paragraph 121 he concluded:

“The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place.”

31.	There are now many authorities on the application of the Hardial Singh principles within that basic framework.  For present purposes I will limit further reference to the following: in R (oao A) v SSHD 2007 EWCA Civ 804 Toulson LJ, as he then was, said: 

“54.	I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and the refusal to accept voluntary repatriation, those are bound to be very important factors, likely often to be decisive factors 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.  The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of a detainee being able to return to his country of origin and detention in circumstances where he could return there at once.  In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making.  

55.	The 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, of which I include both the likelihood of it occurring and the potential gravity of its 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 will 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.”

32.	In R (oao MH) v. SSHD 2010 EWCA Civ 1112 Richards LJ said at paragraph 64 and following:

64.	...As Toulson LJ said, there must be a “sufficient prospect” of removal to warrant continued detention, having regard to all the other circumstances of the case ... What is sufficient will best so depend on the weight of the other factors: it is a question of balance in each case.  

65.	I do not read the judgment of Mitting J in R (A and Others) v SSHD as laying down a legal requirement in order to maintain detention the Secretary of State must be able to identify a finite time by which or a period within which removal can reasonably be expected to be affected.  That would be to add an unwarranted gloss to the established principles.   In my view, Mitting J was not purporting to do that but was simply asking himself the questions “By when?” and “On what basis?” for the purposes of his own consideration of the case before him.  Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years, will weigh heavily against continued detention.  There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur without any certainty that removal will occur at all.  Again, the extent of certainty or uncertainty as to whether and when removal can be effected will effect the balancing exercise.  There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors.  Thus in A (Somalia) itself there was “some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be.” ... and that was held to be a sufficient prospect to justify detention for a period of some 4 years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released.”

33.	All of the above factors fall to be assessed by the Court in considering the continuing lawfulness of detention.  At the end of the day it is for the Court to assess the fundamental question whether the continuing detention is in all the circumstances reasonable and as such lawful, so as to effect deportation and thereby protect the public good.  

34.	Reference has also been made to the Defendant’s Enforcement Instructions and Guidance (“the EIG”) including the principles set out for Criminal Case Work Directorate cases such as the present.  The Guidance draws attention to the principles set out above including the weight to be attached to the risk of further offending or harm to the public, together with absconding.  Particular weight is attached to those convicted of offences regarded as more serious which include robbery.  The Guidance deals with the risk of absconding and in respect of risk of harm, draws attention to the importance of the NOMS assessment.  It advises at paragraph 55.3.2.11 that those assessed as low or medium risk should generally be considered for management by “rigorous contact management” although any particular individual factors must also be taken into consideration and may indicate that that course would not be appropriate.  In cases involving serious offences, which include robbery, the decision to release would likely to be the proper conclusion only where factors in favour of release were particularly compelling.  In practice, that would only be likely to be appropriate in exceptional cases because of the seriousness of violent and similar offences.   It also deals with persons considered unsuitable for detention which includes those suffering from serious mental illness which cannot be satisfactorily managed within detention and who  normally would be considered for detention  only in very exceptional circumstances.   

Time limit for detention under Article 5
35.	Mr Nick Armstrong, who appears for the Claimant, submits that for the purposes of Article 5 the ECtHR has limited the acceptable period of detention to about 18 months.  While he accepts that there is no direct authority on the point in our domestic courts, he submits that this court should be guided by the jurisprudence of the ECtHR under Article 5 in line with the Vienna Convention and decisions such as Golder v United Kingdom 1975 1 EHRR 524.  As part of the context for his submission, he draws attention to the Returns Directive 2008/115/EC, to which the United Kingdom is not a signatory but which allows a period of 6 months extendable to 18 months for detention subject to its Article 2 derogation.  He submits that the United Kingdom is wholly out of step with other European jurisdictions where the periods allowed for detention are either less than or do not exceed the periods under the Returns Directive.

36.	 That is resisted by Mr William Hansen, who appears for the Defendant, on the grounds that the authorities referred to by Mr Armstrong do not bear out his premise in supporting the application of a specific time limit for detention for the purposes of Article 5 independently of the Returns Directive.  In my judgment Mr Hansen is correct in his submission as appears from the following brief review of the authorities referred to by Mr Armstrong.  

37.	In Auad v. Bulgaria 2012 ECHR 46390/10 at paragraph 128 the court drew specific attention to the absence of a maximum time limit under Article 5.  In that case the court identified as the only issue whether the authorities had been sufficiently diligent in their efforts to deport the applicant.  The court went on to conclude that there was no evidence of proper diligence on the part of the government and on that basis there was a breach of Article 5.  

38.	In Amie v Bulgaria 2013 ECHR 58149/08 at paragraph 72 the court again drew attention to the absence of any time limit under Article 5.  At paragraph 77 the court went on to deal with the absence of any evidence that the deportation had been pursued vigorously and  concluded that because of that and the lack of a realistic prospect of expulsion, the detention was in breach of Article 5.

39.	In Tabassum v UK 2012 ECHR 2134/10, which was an admissibility decision, the court confirmed the approach of the High Court that there was no fixed time limit, confirming the decision that the period of detention had not exceeded what was reasonable in all the circumstances of the case, including the exercise of due diligence in trying to effect deportation.  

40.	The same broadly applies to the other authorities relied upon by Mr Armstrong.  In Raza v Bulgaria 2010 ECHR 31465/08 the court found that there was no indication that deportation had been pursued vigorously or with due diligence and as a result there was a breach of Article 5.  In Massoud v. Malta 2010 ECHR 24340/08 the court came to the same conclusion, expressing grave doubts as to the validity of the detention.  However in the event it found there was a breach of Article 5 because of the absence of procedural safeguards.  Finally, in Mathloom v Greece 2012 ECHR 48883/07 the grounds for concluding that there was a breach of Article 5 included the absence of diligence on the part of the authorities in pursuing deportation.   

41.	In my judgment the authorities to which Mr Armstrong drew attention do not establish his premise that under Article 5 the ECtHR applies, so that this court should also apply, a limit of about 18 months in line with the Returns Directive in considering whether there is a breach of Article 5.   Rather the approach of the ECtHR under Article 5 as reflected in those decisions, has been consonant with the approach of our domestic courts in applying the Hardial Singh principles in respect of the exercise of the power of detention. I am wholly unpersuaded that those authorities justify a cap of 18 months or any other fixed time limit in the absence of an application of the Hardial Singh principles. In common with the approach of the Court of Appeal in R (OAO Muqtaar) v. SSHD 2012 EWCA Civ 1270 (see per Richards LJ paragraph 27 “the boot straps argument”), on the facts of the present case the issue of unlawful detention under Schedule 3 on those principles is essentially co-extensive  with the question of breach of Article 5.  

Submissions
42.	Mr Armstrong submits on behalf of the Claimant that in applying the Hardial Singh principles, when account is taken of the period likely to be required for an outcome to the ETD application, the total period will be between 21 months and 27 months, depending on what period within the bracket of 6 to 12 months is required.  He submits that in itself that period is in its totality excessive and thus unlawful.  However in the present case there is no real prospect of deportation being secured even within that time. The information given by the Claimant has been consistent and was the same as that which was given as part of his bio data response in March 2011 when the deportation order was made.  Notwithstanding the efforts of the British High Commission, including visits to the relevant district and an interview of the Claimant, it has not been possible to verify that address.  It is also clear from the email dated 19 January 2012 that there was nothing more that realistically could be done.  In this and other respects, insofar as there are gaps in the evidence, it is important to recognise that the onus is on the Defendant to establish lawfulness and thus any doubt in that respect should be resolved in the Claimant’s favour.  

43.	Given that background, there is no evidence from the Defendant as to what, if any, further steps the Algerian authorities are taking or can take to verify the address where the British High Commission has demonstrably failed.  In that respect Mostyn J specifically gave the three month period to enable the Defendant to inform the court of what progress was being made in respect of that application.  In reality the Defendant has produced no evidence whatever as to what is being done or expected to be done by the Algerian authorities in that respect.  The only attempt made has been a single telephone call on the 1 May 2013 which unsurprisingly was a holiday in Algeria, as elsewhere in Europe.  Thus the court has no specific evidence as to any action being taken or available to be taken by the Algerian authorities to verify the address or the Claimant’s nationality in this respect or as to the period that that could be expected to take in these circumstances.  In the absence of that evidence, there is no evidential foundation for the assertion in paragraph 28 of the witness statement of Mr Kupoluyi that a response from the Algerians can be expected shortly, other than that, now the application has been put on the priority list, a weekly update is requested.  It may or may not be the case that the weekly update simply states that there is nothing that can be done.  That the court has not had that update is entirely due to the failure of the Defendant, including the failure to put the application on the priority list earlier.  

44.	Moreover, this is not a case where the Defendant can claim that she has proceeded with due diligence or any commitment as part of the deportation process and particularly in the time since the application was made.  Effectively since the inquiries by the High Commission at the beginning of 2012 it was left to the Claimant to pursue the matter with the Algerian Consulate and thereafter for the Algerian Consulate to request the ETD application which occurred on the 25^th January 2013, relying on the same information that had been supplied to the Defendant some two  years earlier.  There is nothing in the evidence to show any urgency or diligence on the part of the Defendant or a real commitment to secure an early resolution of the matter which was particularly unacceptable having regard to the effects on the mental health of the Claimant.  

45.	The only qualified psychiatric evidence available to the court is that provided by the three reports by Dr Genẻ Cos, which in substance are unchallenged.  Those reports are striking in their conclusion that the Claimant’s treatment and in particular the transferral between IRCs and the overall length of time that he has been detained is “having a major impact on (the Claimant’s) mental and physical health.  (The Claimant) is at high risk of psychosis, suicidal behaviour and serious physical ill health.” and “Were (the Claimant) to remain in detention, I believe that his mental health would deteriorate, he could become psychotically depressed and acutely suicidal.”   He submits that the court should find that detention in this case is having a direct effect on the mental well being of this vulnerable claimant and that he is put at risk of increasingly serious mental illness.  That is not simply the opinion of a highly qualified psychiatrist.  It is reflected in his self-harming and refusal to take food and liquids, together with the evidence in the medical notes and the witness statement from his solicitor as to his mental distress.  It is also clear that the required therapy cannot be provided in the context of detention where there are inevitable difficulties with the regime, including transfer at short notice and the problems of obtaining appropriate medication.  That is consistent with the concerns expressed in the reports of the Chief Inspector of Prisons.   

46.	It cannot be sensibly asserted that the delay in the ETD is self-induced.  There has been no evidence of non-cooperation from the beginning of 2011.  There is no evidence that the Claimant is withholding information.  That he does not have further details is consistent with a person who left his home at a young age in circumstances which, on any basis, were distressing for him, having regard to his sexual abuse by another member of the family.  

47.	As to re-offending, the most recent and authoritative assessment is that in the NOMS assessment in August 2012 which made clear that the risk of re-offending was low which accorded with the sentencing judge’s conclusion that the robbery offence was out of character.  The Claimant is now free of alcohol and there is no evidence of drug abuse.  Moreover, it is apparent that he is concerned with his own health and that itself would be an added incentive to ensure he remains within the system.  The Defendant herself in the EIG recommends treatment by rigorous contact management rather than detention in these circumstances.  

48.	The confirmation of accommodation and support under section 4 of the 1999 Act will provide him security and financial support, which would again militate against the risk of absconding.  Furthermore, this is not a man who is seeking to avoid deportation with that accordingly as an incentive for non-compliance.  Thus it is submitted that the court should conclude that the risk of re-offending is low, as is the risk of a return to drug or alcohol.  While the risk of absconding inevitably remains, it is not a risk that in these circumstances should outweigh the excessive length of detention without any real prospect of deportation being effected within a short period and given the risk of future deterioration.  

49.	Mr Hansen submits that in this case there is no challenge, that the Defendant has throughout sought to exercise the power of detention for the purposes of and pending the deportation of the Claimant and that the only obstacle to removal is in effect the absence of an ETD.  The paramount consideration is the risk of absconding which would defeat the fundamental objective of deportation.  There is, he submits, compelling evidence of that risk with this Claimant, given his poor immigration history, including repeated flouting of the immigration laws in this country and elsewhere, his failure to comply with conditions, his absconding and giving false names and other details.  The Claimant is without any link to this country or seemingly to Algeria in terms of family or otherwise.  While he has ostensibly cooperated since deportation was indicated in 2011, during 2009 and 2010 he actively objected to and obstructed that process which is consistent with the limited details which  he has provided as to his bio data  and which  have not proved capable of verification.  

50.	The concern over absconding is reinforced in this case by the risk of re-offending and the seriousness of his last offence of robbery.  He has convictions for repeated offences of dishonesty.  The last offence was one of violent robbery on a lone woman at night.  That it was out of character does not eliminate the inherent threat to the public safety and good.  All the offences were evidently connected with his addiction to drugs and alcohol and, while in detention he has not had access to alcohol or drugs, it demonstrates that he is a man who has an addictive personality and is thus vulnerable to a return to their abuse and with that the risk of re-offending and as a consequence, absconding.  Thus the paramount consideration in the present case is the implication of that serious risk of absconding, coupled with re-offending, for securing the public interest in removal of the Claimant pursuant to the deportation order.  

51.	 He submits that in reality the provision of section 4 support and accommodation is little protection in that respect, having regard to the risk of absconding and re-offending.  While he acknowledges the NOMS assessment in 2012, that does not address absconding and in any event is concerned with the risk of serious harm through re-offending.  While assessed as low, it remains a real risk which should  weigh in the balance as an important factor that affects the reasonableness of continuing detention for the purposes of removal.  

52.	So far as the period of detention is concerned, this must be seen in the light of the overall history, largely brought about by the scant information provided by the Claimant.  Before his detention under the 1971 Act commenced, the Defendant had already put in place inquiries through the High Commission in Algiers, which included district visits on behalf of the Commission in an attempt to verify the information provided.  That led to the Commission’s interview of the Claimant in January 2012, from which the interviewer concluded that the Claimant was deliberately giving false information, but even then attempts continued to verify the address in Algeria.  

53.	At the same time the Claimant was encouraged to approach the Algerian Consulate directly.  That he delayed doing so until May and June 2012 was not the responsibility of the Defendant.  However, that led in turn to the interview of the Claimant by the Algerian Consulate, which in turn, following investigation, resulted in the invitation to submit an ETD application in November 2012.  That necessarily required a further interview of the Claimant, which took place on the 21 January 2013 with the application for an ETD made shortly thereafter on the 25 January 2013.  Thus it can be seen that throughout the process the Defendant was committed to make progress with verification of the application for an ETD, which is demonstrated on the country advice as being a necessary pre-requisite for an application for an ETD to the Algerian Consulate.  Once the request for an application was made by the Algerian Consulate, presumably after verification of the information provided, that application was made without delay.  

54.	Following the application, there has been no further response from the Algerian Consulate, but that is in line with the practice advice that a response will not be received within the three month period.  The application is now on the priority list and it is submitted that the court can properly rely upon the assessment by the case worker in his witness statement that a response can now be expected shortly.  

55.	In these circumstances it is submitted that there is a real prospect of an ETD being obtained in a short period and with that the public interest in removal would be effected.  

56.	As to the health of the Claimant, there is clear evidence that he has received adequate treatment within the limits of detention, including from a neurologist and physician.  In effect the reports of Dr Genẻ-Cos only express reservation as to the absence of wider therapy which would not be capable of being provided consistent with detention.  The prognosis of continuing deterioration was at a time when the Claimant was plainly distressed because of his withdrawal from medication which accorded with the advice of Dr Gene-Cos.  It is to be contrasted with the clear evidence on the medical records of his well-being and absence of complaint since his arrival at Harmondsworth.  In the circumstances, there is nothing to indicate deterioration in his mental health as a result of further detention for what is, on the evidence of the case worker, reasonably expected to be a short period to enable removal to be effected.   

57.	Given the paramount interest arising out of the risk of absconding and re-offending and its effect on removal, the effect on the Claimant’s health is not such as should alter the balance so as to prevent continuing detention to ensure that the public interest in removal  can be delivered.  

Consideration
58.	I have indicated earlier in this judgement that I reject the submission of Mr Armstrong that an absolute time limit should be applied of 18 months or any other time period under Article 5 for the purposes of considering the lawfulness of detention under the 1971 Act.  That is not to say that in certain circumstances the length of detention may be such that, notwithstanding other factors, including the prospect of securing removal and the risk of absconding or re-offending, continuing detention may be unreasonable and unlawful on that account alone and in turn in breach of Article 5.  However, that will be a judgement to be made contextually in the light of the Hardial Singh principles and not by the imposition of any fixed timescale.  

59.	Turning accordingly to the application of those principles, I remind myself that the question of lawfulness of the exercise of the power is one for the court to determine for itself and not by way of review.  In that respect the onus is on the Defendant throughout to justify that the detention is lawful.  I therefore accept that, where there is a gap in the evidence giving rise to uncertainty or doubt, I should resolve that uncertainty or doubt in the Claimant’s favour.  

60.	It is not suggested that the detention in the present case was not in substance for the purpose of securing removal or that it was not justified at the outset.  It is also accepted that the only obstacle to deportation is the absence of an ETD.  In the circumstances, it is appropriate first to consider whether the Claimant’s continuing detention has become unreasonable so as to be unlawful.  If it is, then I should determine when it in fact became unlawful.  A convenient starting point is the period of relevant detention, that is from the 13 October 2011 when the operative part of the Claimant’s custodial sentence ended.  That is now some 19 months.  In addition there is the period required to achieve removal through obtaining an ETD.  

61.	While the details given by the Claimant of his last address were not, on the evidence, deliberately falsified, it is a fact that they were not capable of verification by the British High Commission.  However, the direct approaches by the Claimant to the Algerian Consulate appear to have borne fruit, leading to the interview of the Claimant and further inquiries, which in turn led to the request for an application for an ETD in November 2012.  The Court has no specific evidence as to what it was that led the Algerian Consulate to request that application.  However in my judgment the probability is that there was sufficient to justify the Algerian Consulate  making the request with the real prospect that the application could lead to the issue of the  ETD. While I recognise that the British High Commission had failed in its attempts at verification, the fact that the Algerian Consulate invited the application following the interview of the Claimant and making further inquiries to my mind strongly suggests that there was sufficient evidence to justify making an exception to the normal requirement for preverification by the High Commission.

62.	When the case came before Mostyn J on the 7 February, it must have been clear to the Defendant that the court was looking for direct assistance as to the progress made in respect of the application for the ETD when the case came to be relisted.  The fact is that there has been no evidence of what, if any, progress has been made or what steps are now open to the Algerian authorities to verify the Claimant’s nationality and issue the ETD.  All that the court has is the fact that the application was requested and that it has been made and that the period for provision of an ETD in circumstances where no evidence is produced, as in the present case, is between 6 and 12 months.   

63.	In the absence of any further direct evidence from the Defendant, I do not consider that there is a likelihood of determination in a period shorter than what is the normal period in these circumstances, albeit I accept that there is a prospect that is real but not certain of the application being resolved with provision of an ETD within a period of 6 to 12 months from the making of the application.  

64.	In those circumstances, in my judgement, the realistic prospect is that a further three to nine months would be required to secure the issue of the ETD, making a total of 21-27 months detention in all.  That period of overall detention would in my judgement be substantial such that the court should exercise anxious scrutiny in considering whether the period is in the circumstances reasonable for the purpose of securing removal.  

65.	On the Defendant’s case the overriding justification for detention in this case has been the identified risk of absconding, together with the risk of re-offending.  In my judgement there is indeed a real risk of absconding by the Claimant in the light of his long history of flouting the immigration laws of this country and elsewhere, including  his non-compliance and absconding.   He was largely of no fixed abode before his detention.  Prior to detention he had given false information as to his identity and nationality.  He is a person who has been addicted to drugs and alcohol, which led to his serial criminality, including what was on any view, a serious crime of violent robbery on a lone woman at night.  

66.	While in detention he has not had access to drugs or alcohol, there must in my judgement be a continuing risk of a return to drugs or alcohol abuse with the concomitant risk of renewed criminality and with that the increased risk of absconding, quite apart from the inherent threat to public safety and security through his offending.  

67.	In making these observations, I accept that the robbery was out of character and that the NOMS assessment as to the risk of re-offending with serious harm was low.  However the risk remains identifiable and in any event this does not go directly to the risk of absconding.  The provision of section 4 accommodation and support together with   his apparent overall concern with his health would tend to reduce the risk of absconding and support his remaining within the system to ensure continuing access to that accommodation and support, as well as medication. It is also right that since the beginning of 2011 he has not resisted deportation.  I do however find that there remains a serious risk of absconding and with it a real risk of re-offending which properly forms a paramount consideration as part of the overall balance.  

68.	I accept that since at least February 2011 the Claimant has not sought to frustrate the objective of removal.  His account has remained consistent and, while it is lacking in extent and detail, I consider that that is consistent with the fact that he left home at the age of 11 some 31 years ago in difficult circumstances.

69.	I then turn to consider the diligence, speed and effectiveness of the steps taken by the Defendant to obtain the ETD and with that the removal of the Claimant.  It is said with some force by Mr Armstrong that the information provided by the Claimant in his application for an ETD is essentially identical to that provided on the 18 March 2011.  I do not however accept that it would have been reasonable for the Defendant to have made an ETD application in the early part of 2011 because it was clear that pre-verification of the information by the British High Commission was required by the Algerian Consulate. 
 
70.	In this case the Defendant carried out inquiries through the High Commission, seeking to verify the details given, including after the interview on the 19 January 2012 when the officer concluded that the information that had been provided was false.  

71.	It was at the instigation of the Defendant that the Claimant made direct inquiries of the Algerian Consulate, which led to his interview by the Consulate and, following inquiries by the Consulate, the request for the ETD application to be made, notwithstanding the absence of pre-verification by the High Commission.  There is however no evidence of  the Defendant seeking directly or indirectly to contact the Algerian Consulate following the interview of the Claimant or in connection with the request for the application for an ETD, or in particular following the ETD application and the order of Mostyn J, other than the ineffective telephone call on the 1 May.  Moreover the ETD application was only put on the priority list in what appears to have been the last week before the matter returned to court.  No explanation of that has been provided to the court and there is no evidence on which I can rely as to any steps that have or are being taken since that application was made or specifically as to its likely outcome.  That, in my judgment, is to be weighed in the balance against the lawfulness of continuing detention, having regard to the apparent lack of real commitment or any urgent pursuit of the matter on the part of the Defendant following the application for an ETD.  

72.	I then turn to the effect of detention on the Claimant and in particular his mental health.  The evidence is that the Claimant suffers seizures, which are probably epileptic, and that he also suffers from PTSD arising from his abuse as a child.  He is thus of a vulnerable mental state.  On the evidence he is being reasonably cared for at Harmondsworth in this respect, although the conditions of detention do not allow for the therapy recommended by Dr Genẻ-Cos and there are inevitable problems arising, for example, in connection with securing prescribed medication.  Moreover, I accept that the conditions in which he has been detained have on occasion exacerbated his symptoms, leading for example to his self-harming and his distress from the abrupt withdrawal of medication, as reflected in the reports from Dr Genẻ-Cos and the medical records.  These are characteristic of the difficulties inherent in  the detention regime, which in this case has had a particular detrimental effect on the Claimant and which, while not in itself unlawful, should weigh in the balance  in considering the  reasonableness of continuing detention. 
 
73.	This is a finely balanced case.  The risk of absconding and of re-offending, to which I have referred, has to be balanced against other factors including the prospect of an ETD being obtained which, while real, is uncertain as to outcome and timing, the likely period of overall detention, its effect on the Claimant and the evident failure of the Defendant, at least from the making of the application for the ETD, urgently to pursue its progress.    

74.	On the evidence before the court I have concluded that in the circumstances the continued detention of the Claimant would be unreasonable notwithstanding the risk of absconding and re-offending and the consequent implications for removal.  To this extent, accordingly, the claim is made out.  I do not consider that the detention of the Claimant had become unlawful at an earlier stage, having regard to the factors that I have set out above.  It also follows from the above that my determination of the lawfulness of the detention under the 1971 Act effectively deals with the claim made under Article 5, which is made out to the same extent. In the circumstances the Claimant is entitled to a declaration as to the unlawfulness of his continuing detention. I will consider the terms of the order in the light of any submissions made by the parties.