ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Andrew Edis QC, sitting under s.9(1) of the Senior Courts Act 1981
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE UNDERHILL
| Mustafa Fardous
|- and -
|Secretary of State for the Home Department
Stephanie Harrison QC and Greg O'Ceallaigh (instructed by Wilsons LLP) for the Respondent
Hearing dates: 5 and 6 May 2015
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ: Introduction
(a) The claimant's deception on initial entry into the UK
(b) His movements in 2004-9
i) He was prosecuted in the UK for offences in 2004, 2005 and 2006. It is not clear if he was convicted.
ii) He applied for naturalisation in the United Kingdom in 2006, telling the same three lies that had been the basis of his asylum application. He also failed to disclose the pending prosecutions. The last failure was detected and his application for naturalisation failed.
iii) Between 2006 and September 2009, he visited Norway and possibly other European countries. On 7 August 2007 he applied for asylum in Norway. Although he gave the Norwegian authorities his correct name, he claimed to have originated from Western Sahara and said that the reason for his application was that he had deserted from the military. He did not tell the Norwegian authorities about his status in the United Kingdom.
iv) The Norwegian authorities over the period to September 2009 made a number of enquiries. They obtained fingerprints from the Italian authorities to which we have referred and, using those, obtained information from Germany and Spain saying that he had visited those countries under the name of Salah Ben Kadour and given the place of his birth as Algeria.
v) On 28 May 2009 Interpol in Rabat confirmed his Moroccan citizenship. In September 2009 he was expelled from Norway.
(c) His return to the UK in September 2009
(d) The attempts to obtain an Emergency Travel Document 2009 - November 2010
(e) Position in November 2010
(f) Further attempts to secure an Emergency Travel Document
(g) The claimant's removal to Morocco on 21 October 2011
The Hardial Singh principles
i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
ii) The deportee may only be detained for a period that is reasonable in all the circumstances.
iii) If before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.
iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
As Moore-Bick LJ observed in the context of detention after conviction and pending removal in R(Francis) v Secretary of State for the Home Department  1 WLR 567 at paragraph 45, the Hardial Singh principles are to be viewed as an expression of Parliament's presumed intention to restrict the scope for detention.
The decision of the judge
"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."
"makes it clear that a risk of absconding is a factor to beconsidered alongside other factors and also, in my judgement, that a risk of absconding might justify detention up to a point but that there may come a time when the length of the detention can no longer be justified by it and it alone. Whether that is so, and if so when it becomes so, are matters of judgement on the facts of each case. There are no guidelines as to the length of the detention which may be justified by this or any other factor."
The application of the Hardial Singh principles
(a) The issue in the case is the second and/or third Hardial Singh principle
i) On the facts of this particular case, no more could have been done by the Secretary of State to secure the removal of the claimant than was in fact done. The Moroccan authorities would not cooperate in producing the one essential document in a timely manner.
ii) The monthly reviews of detention carried out by officials on behalf of the Secretary of State were careful and conscientious.
(b) The approach of an appellate court
(c) Submissions of the Secretary of State
(d) No tariffs or yardsticks
"It would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases"
(e) The objective review by the court
"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:  EWCA Civ 1112.
(f) The risk of absconding
(g) My conclusion on the assessment made by the judge
"I consider that a period of detention of 12 months or more will always require anxious scrutiny. Such periods of detention may well be lawful and may continue to be so for substantially longer periods, but great care is required in concluding that it is so in any particular case."
Lady Justice Black
Lord Justice Underhill