England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
His Honour Judge BLACKETT (sitting as a Deputy Judge)
CO/3493/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/04/2017

LORD JUSTICE McFARLANE:

1. On 27 February 2014, His Honour Judge Blackett, sitting as a judge of the High Court, dismissed the Appellant's application for a declaration that he had been unlawfully detained by the UK immigration authorities between 10 November 2011 and 22 March 2012. Permission to appeal was granted following an oral hearing by Lord Justice Underhill on 14 January 2015.

Factual Background

2. The facts of the case can be stated shortly. The appellant claimed asylum in the UK on 10 May 2004, having, he said, arrived in the country the previous day from Burundi. He claimed, and has maintained throughout, that he is a citizen of Burundi. The claim for asylum was rejected and his subsequent appeal dismissed (on 22 November 2004) on the primary basis that his claim to come from Burundi was not accepted. Thereafter, the appellant did not come to the notice of the authorities again until 21 July 2006 when he was arrested at Edinburgh Airport while trying to board a flight to Canada with a false Canadian passport. He was subsequently convicted and sentenced to two months' imprisonment for that offence and the sentencing court in Scotland recommended that he be deported.
3. On release from prison, in August 2006, the appellant was detained under immigration powers. He was released on bail in December 2006 and subsequently awarded £3000 for unlawful detention. From October 2007 onwards the appellant failed to comply with bail reporting conditions and was officially classed as "an absconder". Nothing was heard of him by the authorities until, by chance, he was apprehended and detained on 1 February 2010. He was finally released on bail from that detention on 22 March 2012. The present claim for unlawful detention is based upon the final 4½ months of that period, which must therefore be considered in a little more detail.
4. Throughout his time in detention the appellant maintained that he was a citizen of Burundi. Although that claim had been rejected both by the immigration officer and in the appeal process in 2004, the Secretary of State revisited the issue on a number of occasions and in a variety of ways during the period of detention that started in February 2010. In May 2010 a Burundi liaison officer, having examined the Burundian identity card produced by the appellant with his original asylum claim, declared it to be a fake on the basis that the information contained within it did not relate to real locations and officials in Burundi. Thereafter, the appellant failed to comply with requests for the provision of bio-data and, when, on occasion, he did provide such material it was, again, held to be false.
5. On 10 November 2011, a Burundi liaison officer again interviewed the appellant and, based upon answers with respect to the local language and geography, he also concluded that the appellant was not from Burundi. The 10^th November 2011 date is important as being the starting date for the appellant's present claim (as I will explain at paragraph 9).
6. On 1 December 2011, a 'release submission' was initiated by the immigration service resulting in a request to explore whether the appellant should be prosecuted under Asylum and Immigration (Treatment of Claimants etc) Act 2004, s 35. On 25 January 2012, the case was discussed in detail with the specialist investigation team to consider in what way it might be possible to establish the appellant's true identity. At the regular monthly detention review conducted on 15 February 2012 the relevant Deputy Director recorded that there was no reasonable prospect of the appellant's removal within a reasonable time, but nevertheless concluded that he should remain in detention. The appellant's case is that, even if his primary claim for unlawful detention from 10 November 2011 fails, any detention after the Deputy Director's decision on 15 February 2012 must, on any view, be unlawful.
7. The process of trying to establish the appellant's true identity through the s 35 process apparently came to nothing and, on 22^nd of March 2012, the Secretary of State released the appellant on bail.
8. In the four years that have passed since his release, we were told that the Appellant has remained in England and Wales. He is still subject to the deportation recommendation and is, presumably, still on bail. No further attempt to deport him has been made, neither has he left the country voluntarily. He is not permitted to work and is not entitled to receive state benefits.

The judge's decision

9. Before the judge the appellant's case was that as soon as it had been confirmed by the liaison officer that the appellant was not a Burundi citizen, the respondent should have released him from detention because she could not deport him to Burundi and she could not contemplate any other destination to which he might be deported. Reference was made to the well-known "Hardial Singh" principles as summarised by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (to which I will turn in detail in due course). The appellant relied upon the 3^rd Hardial Singh principle to the effect that it must have been apparent to the Secretary of State that she would not have been able to achieve deportation within a reasonable period, and she should not therefore have sought to exercise the power of detention.
10. The claim was resisted on behalf of the Secretary of State.
11. The judge set out his analysis of the issues in three succinct paragraphs, giving prominent position to this summary of the relevant factors, as he saw them to be (paragraph 17):

'The claimant has been obstructive ever since he first claimed asylum in May 2004. When an adjudicator determined that he was not from Burundi and his appeal rights were exhausted he absconded. He attempted to use forged travel documents and his original ID card was a fake. When released on bail he absconded again and during the whole of his detention he failed to engage with the authorities. He continued to claim he was from Burundi but did not take any steps to provide evidence to support that claim. Instead he positively obstructed the process by failing to cooperate with all inquiries.'

12. During submissions the judge had apparently been taken to the case of R (Sino) v SSHD [2011] EWHC 2249 (Admin), although no account of that submission is referred to in the body of the judgment. In his concluding paragraphs (at paragraph 18) the judge said this about that case:

'As a matter of principle I do not entirely agree with the approach taken by John Howell QC in Sino. It is a matter of common sense that if a person obstructs the deportation process and fails to cooperate with the Secretary of State then the "reasonable" period will be longer and probably much longer. While it may not be indefinite, it may certainly extend to a period covering, if necessary, a number of years, provided the Secretary of State makes real and continuous efforts to ascertain where the detainee has come from and should be deported to.'

13. In the final paragraph (paragraph 19), regarding the period after 10 November 2011, the judge stated:

'After that date the claimant was still liable to removal and the defendant made real and continuous efforts to ascertain the destination. The period of detention remained lawful and reasonable - although it could have been shortened had the claimant cooperated with the authorities. The lawfulness and reasonableness of the detention was not altered on 15 February 2012 when (the Deputy Director) asserted that there was no realistic prospect of removal within a reasonable time scale. That assessment was based on the claimant's continued obstruction and dishonesty and (the Deputy Director) qualified it by proposing that a s 35 prosecution be pursued vigorously. In my view, at that stage it had not yet become apparent that the Secretary of State would not be able to affect deportation within a reasonable period, such reasonable period being long enough to enable the Secretary of State to exhaust all inquiries as to the claimant's country of origin.'

The Legal Context

14. Before this court, as it had been before the judge, the legal context within which the appellant's detention falls to be evaluated was not controversial, albeit that its application to the facts of the case plainly was.
15. The authority to detain the appellant arose from the deportation recommendation made by the Scottish criminal court in 2006 and from the terms of Schedule 3 paragraph 2(1) and (3) of the Immigration Act 1971, which provide that, in such circumstances, an individual 'shall' be detained unless he is released on bail or the Secretary of State otherwise directs:

'(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

….

(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (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).' [emphasis added]

16. It is common ground that the lawfulness of the Secretary of State's exercise of the power to detain must be subject to the common law limits initially described in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 ('the Hardial Singh principles') and more particularly identified by Dyson LJ, as he then was, in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at paragraph 46:

(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 the reasonable diligence and expedition to effect removal.

17. The present appeal involves consideration of the 2^nd and 3^rd Hardial Singh principles with particular focus on the 3^rd.
18. At paragraph 47 of his judgment in R (I), Dyson LJ explained the distinction between principles (ii) and (iii):

'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 yet 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. Thus, 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.'

19. The Hardial Singh principles, and Dyson LJ's formulation of them in R (I), were approved by the majority in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, where, at paragraph 103, in his judgment Lord Dyson JSC offered further description of the 3^rd principle:

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

20. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 35 ('the 2004 Act') empowers the Secretary of State to require a person to take specified action if it will or may enable a travel document to be obtained. Failure to comply with such a request, without reasonable excuse, is an offence. The relevant parts of s 35 are:

'35 (1) The Secretary of State may require a person to take specified action if the Secretary of State thinks that—

(a) the action will or may enable a travel document to be obtained by or for the person, and

(b) possession of the travel document will facilitate the person's deportation or removal from the United Kingdom.

(2) In particular, the Secretary of State may require a person to—

(a) provide information or documents to the Secretary of State or to any other person;

(b) obtain information or documents;

(c) provide biometric information (within the meaning of section 15 of the UK Borders Act 2007), or submit to a process by means of which such information is obtained or recorded;

(d) make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom;

(e) cooperate with a process designed to enable determination of an application;

(f) complete a form accurately and completely;

(g) attend an interview and answer questions accurately and completely;

(h) make an appointment.

(3) A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1).'

The Appellant's case

21. As Miss Anderson demonstrated, the Appellant's case, by the time it was considered by the judge, had become narrow in focus as a result of earlier decisions. On 27 September 2011 his first application for judicial review with respect to unlawful detention was refused permission by Ms Ingrid Simler QC, sitting as a deputy High Court judge, on the basis that the application was "unarguable and totally without merit". The present application for judicial review was issued on 3 April 2012. Permission to apply was initially refused, but subsequently granted on 15 November 2012, by Elizabeth Laing QC sitting as a deputy High Court judge, on the basis that the claim was limited to the period between 10 November 2011 and 22 March 2012 and that amended grounds of claim would be filed. The single amended ground that was duly filed claimed unlawfulness by reference to the 3^rd Hardial Singh principle. The Appellant's case before the judge was therefore limited to an assertion that, before the expiry of a period of detention, which could not be established as objectively unreasonable in itself, it had become apparent to the Secretary of [Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]State that it would not be possible to achieve the Appellant's deportation within a reasonable period.
22. Before this court, the Appellant relies on two grounds of appeal. Firstly, that the judge made an error of law in his application of the Hardial Singh principles. This ground is largely based upon the judge's statement at paragraph 18 that "as a matter of principle I do not entirely agree with the approach taken by John Howell QC in Sino". Mr. Anthony Metzer QC, who did not appear below, leading Mr Raphael Jesurum, who did, for the Appellant submits that the decision in Sino is no more than a manifestation of the required approach as established in a line of domestic decisions. The basis of the appeal on this ground, therefore, is that, by stating that he did not agree with the approach taken in Sino, the judge had stepped aside from the path established by the authorities and had therefore fallen into error.
23. The second ground of appeal relies upon the evaluation of the Deputy Director on 15 February 2012, addressing a pro-forma question based upon the third Hardial Singh principle, which recorded a negative response to the question "is there a realistic prospect of removal within a reasonable timescale?". The appellant's case on this ground is that there must, necessarily, be both a subjective evaluation, by the Secretary of State, on the question within the 3^rd Hardial Singh principle and an objective evaluation, by the court, on the same point. Both are, it is claimed, required and the Deputy Director's answer demonstrates that the Secretary of State's subjective view could no longer support continued detention.

(1) Ground One

24. To understand the first ground of appeal in full it is necessary to look both at the decision in Sino and to consider the judge's words in expressing his apparent disagreement. In R (Sino) v SSHD [2011] EWHC 2249 (Admin) an Algerian national sought a declaration and damages for unlawful detention. One aspect of the range of issues facing the judge, John Howell QC, sitting as a deputy High Court judge, was a claim by the Secretary of State that the claimant had contributed to the delay that there had been in obtaining an emergency travel document by the provision of inadequate and misleading information relating to his identity. Mr Howell considered the legal significance of that factor at paragraph 56 of his judgment:

'In my judgment the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may be well be longer than it will be in the case of individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him. That is not merely the case at common law: see eg R (Rostami) v Home Secretary [2009] EWHC 2094 (QB) at [70]-[73]; R (HY) v Home Secretary [2010] EWHC 1678 (Admin) at [29]. It is also a conclusion to which article 5 of the Convention points. In Mikolenko v Estonia (2009) Oct 9^th App No 10664/05 the European Court of Human Rights found that there was a breach of article 5 of the Convention when an individual was detained when it was impossible to remove him from Estonia without his co-operation which he was not willing to give: see at [65].'

25. For convenience, I will repeat the judge's words in at paragraph 18 of his judgment in the present case:

'As a matter of principle I do not entirely agree with the approach taken by John Howell QC in Sino. It is a matter of common sense that if a person obstructs the deportation process and fails to cooperate with the Secretary of State then the "reasonable" period will be longer and probably much longer. While it may not be indefinite, it may certainly extend to a period covering, if necessary, a number of years, provided the Secretary of State makes real and continuous efforts to ascertain where the detainee has come from and should be deported to.'

26. Mr Metzer submits that the approach taken to the issue of non-cooperation in Sino was entirely consistent with other cases (particularly Lumba) and that in holding that a period of years may be justified (providing that the Secretary of State makes real and continuous efforts to ascertain the claimant's identity during that time) the judge was in error. By contemplating that a period measured in years might be justified on this basis, the judge was, impermissibly, making non-cooperation a 'trump card' enabling the Secretary of State to detain an individual almost indefinitely. It is submitted that the judge's reference, at paragraph 19, to a 'reasonable period' of detention being one that is 'long enough to enable the Secretary of State to exhaust all inquiries as to the claimant's country of origin', again indicates that the judge has put the test of reasonableness at too high a level.
27. Mr Metzer also submits that the error of the judge is compounded by his failure to spell out the basis upon which he does 'not entirely agree' with Sino and, more generally, by the fact that the judge fails to recite the Hardial Singh principles or explain how they are to be applied to this case.

(2) Ground Two:

28. The Appellant's second ground relates to the monthly 'Detention Review' conducted by a Deputy Director on 15^th February 2012. The template review document, which runs to 9 pages, includes the following text within the final 'Comments' section (the template question is in bold):

'Is there a realistic prospect of removal within a reasonable timescale?

No, as we do not know where Mr Kajuga originates from and his continued efforts to obstruct deportation by not complying is simply fostering his prolonged detention. I cannot see why a s 35 prosecution is not permissible and would ask that we pursue this course vigorously as Mr Kajuga is clearly not complying and compounding the issue by lying.'

29. It will be recalled that the judge, at paragraph 19, had held that the Deputy Director's entry on the form did not materially alter the situation as the entry is qualified by a request for the process under s 35 of the 2004 Act to be pursued as part of the Secretary of State's continuing effort to achieve sufficient information to effect the Appellant's deportation.
30. Mr Metzer submits that the judge's analysis on this point amounts to an error of law on the basis that, in the context of the 3^rd Hardial Singh principle, at any one time there will be both a subjective state of mind (by the Secretary of State) on the question of whether deportation can be effected within a reasonable period, and an objective evaluation (by the court) of the justification for detention on the same material. It is argued that the 3^rd principle will apply if, at any time, either the Secretary of State forms the subjective view that deportation will not be able to be effected within a reasonable time, or that state of affairs becomes objectively 'apparent' when later reviewed by a court.
31. In the present case, the Appellant submits that the Deputy Director's entry in the Detention Review is conclusive of the Secretary of State's subjective analysis as at 15^th February 2012 and, irrespective of any subsequent objective evaluation by a court, from that time the facts underpinning the 3^rd principle are established and any subsequent detention is therefore unlawful.
32. Mr Metzer relies upon the following passage in the judgment of Woolf J (as he then was) in Hardial Singh (at [1984] 1 WLR p 706D) with regard to the need for a subjective belief by the Secretary of State:

'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. … 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 that passage, in support of the subjective element, Mr Metzer lays emphasis on the phrase 'where it is apparent to the Secretary of State'. His submission that there is a separate objective test arises from the terms in which the 3rd Hardial Singh principle is phrased in R (I), namely: '… it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period.'

33. Mr Metzer submits that there are numerous examples elsewhere in the law of the need for both a subjective and an objective evaluation, one such was described by Woolf LJ in the case of Castorina v The Chief Constable of Surrey (unreported) where reference is made to the requirement in Criminal Law Act 1967, s 2(4) for an arresting officer to suspect that a person is guilty of the offence (which is dependent upon the officer's subjective state of mind) in addition to the need for an objective evaluation of there being 'a reasonable cause' for such a suspicion.
34. As a second limb of Ground One, it is submitted that, in any event, the judge was wrong to find that detention remained objectively justified after the Deputy Director's evaluation on 15^th February.
35. Finally in this regard, Mr Metzer referred to R (Babbage) v The Secretary of State for the Home Department [2016] EWHC 148 (Admin) where, at paragraph 74, Garnham J holds that, if the true purpose of detention is to prosecute an individual under s 35 of the 2004 Act, rather than to deport him, that is not a lawful exercise of the power to detain.

Response of the Secretary of State

36. In her response to the appeal, on behalf of the Secretary of State, Miss Julie Anderson, whilst acknowledging that the judgment in the present case is by no means detailed, submits that the point in this case was a short one dealing with a four month period of detention where the only issue was the 3^rd principle in Hardial Singh, and all that was required was a short judgment on the point.
37. Secondly, Miss Anderson points to the finding by an Immigration Judge in January 2012 when refusing bail that the Appellant 'is a very high risk of committing further criminal offences so as to avoid enforced removal' and to his behaviour over a number of years living 'under the radar', using false documents and surviving in this country despite having no lawful means of support. The likelihood that he would abscond and commit further offences was therefore well established in her submission.
38. Miss Anderson relied upon R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, at paragraph 65, where Stephen Richards LJ, considering the 3^rd Hardial Singh principle, held that what was required was merely 'a sufficient prospect', or 'some prospect' of removal to warrant continued detention when account is taken of all the relevant factors. Miss Anderson submits that this is not a high test and one which was met at all stages of this Appellant's detention
39. On the documents in the present case, Miss Anderson draws attention to the fact that, after the evaluation by the Burundi liaison officer, which is now relied upon by the Appellant as providing the watershed moment when the facts were sufficiently clear to cause the Secretary of State to end the process of investigating the appellant's origins, in a witness statement dated 3 February 2012 the Appellant sought to reopen the investigation by challenging the adequacy of the liaison officer's interview.
40. With respect to the first ground of appeal relating to Sino, Miss Anderson submits that the judge here was making a much more nuanced point as to the ultimate length of time for the detention of a non-cooperative individual than Mr Metzer contemplates. As 'a matter of principle' the judge does not 'entirely' agree with John Howell QC in Sino, it is submitted, on the basis that, whilst the period of detention of a non-cooperative person cannot be indefinite, it may, however, justifiably be measured in years and probably be 'much longer' than that which is 'reasonable' for a fully cooperative detainee. As such, Miss Anderson argues firstly, that the dispute, such as it is, between the judge and Mr Howell relates to the outer extremity of what might be reasonable in any given case and, secondly, the difference that is pointed up with the approach in Sino is of no relevance here where issues relate to a period of four months, rather than years.
41. Miss Anderson, who submits that the judge's approach in the present case is by no means out of line with the existing authorities, relies upon the decision of this court in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 (at paragraph 54) where Toulson LJ (giving the main judgment) describes an altogether stronger approach than that taken by Mr Howell in Sino:

'I accept the submission on behalf of the Home Secretary 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. 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 the 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 individuals continued detention is a product of his own making.'

42. If, as she submits it is, the threshold for continued detention in such circumstances is at the modest level of some 'sufficient prospect' of future removal, Miss Anderson argues that the facts of this case do not come near to the territory between the lines of debate drawn by this judge and Mr Howell with respect to Sino on the basis that, at all times prior to his release, there remained at least a sufficient prospect that Appellant would relent and cooperate with the process to enable him to be repatriated to his home country.
43. With respect to the Appellant's second ground in relation to the deputy director's decision, Miss Anderson essentially makes three points. Firstly, in contrast to some statutory provisions, such as that referred to in Castorinai, the statutory scheme applicable here does not include room for any subjective element, as opposed to an objective appraisal which (as Mr Metzer also submits) is what is required under the 3^rd Hardial Singh principle (see Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, para 42). Here the wording of Schedule 3, paragraph 2(1) of the IA 1971 is plain in providing that a person who is subject to a deportation recommendation 'shall' be detained unless the sentencing court otherwise directs, or the Secretary of State directs that he be released (applying Hardial Singh), or he is released on bail.
44. Secondly, it is submitted that the judge was fully entitled to conclude that the Deputy Director's recommendation was qualified to the extent that he had advised that a vigorous attempt to deploy the s 35 process should be undertaken before any final decision was reached.
45. Thirdly, Miss Anderson advised the court that, in these circumstances, a "deputy director" was not a decision-maker on this question and that any decision to release this appellant from statutory detention could only have been taken at the more senior level of "strategic director" acting directly on behalf of the Secretary of State. On that basis, she argued that it was simply not possible to equate any opinion of the Deputy Director on the 3^rd principle with the subjective view of the Secretary of State, if, which she disputes, a subjective view is a relevant consideration.

Discussion

46. Having now summarised the relevant law and the opposing submissions in some detail, it is possible to set out my analysis and conclusions relatively shortly.
47. Although the shortness of the judgment, and the fact that the judge did not expressly relate his evaluation of the issues to the Hardial Singh principles, allow Mr Metzer room to criticise his approach, I accept Miss Anderson's basic submission that this is a case which has at its core a short single point; namely, whether as a result of the 3^rd Hardial Singh principle the Appellant's detention had become unlawful either by 10 November 2011 or 15 February 2012. It is a judgment by an experienced tribunal, applying well established principles, in which the judge has explained his approach with sufficient clarity, notwithstanding that he may not have spelled out each point as fully as some other judges may have done.
48. Although the Appellant's first and main ground of appeal is expressly argued on the basis that the judge has made an error of law when measured against the body of established case law on the point, and despite Mr Metzer's attractive advocacy, the reality is that the ground arises solely from the judge's stated inability entirely to agree with what had been said by Mr Howell QC in Sino. No other authority is directly relied upon and, conversely, it is possible to go to higher authority than Sino to suggest that the judge, in fact, was in tune with the approach that is required to cases where a speedy return is being prevented by an individual's non-cooperation with voluntary repatriation (see Toulson LJ in R (A)).
49. In any event, for the reasons given by Miss Anderson, I regard the judge's reference to Sino as being no more than passing commentary on a possible area of narrow disagreement as to the ultimate extent of justifiable detention in a case of non-cooperation that is maintained over a period of many years. The judge was not distinguishing, or disagreeing with, what had been said in Sino for the purposes of justifying his own decision. The facts of the present case, even when taking proper account of this Appellant's total period in detention of 2 years and 1 month, simply fail to engage with the mischief identified in Sino of the 'trump card', whereby continued non-cooperation might lead to indefinite incarceration. On my reading of Mr Howell's judgment at paragraph 56 of Sino, the conduct of this Appellant meets each of the aggravating factors that are listed there which would, it is said, justify a 'longer' and 'still longer' period in custody.
50. At all times, including after 15 February 2012, there remained 'some prospect' or 'sufficient prospect' (to use Stephen Richards LJ's words in R (MH)) of future removal. After 10 November 2011 it was necessary for the Secretary of State to take stock of the outcome of the Burundi liaison officer's interview. The release from detention of an individual who is subject to a deportation recommendation is a decision of importance both in terms of the otherwise mandatory wording of the statute and in terms of public policy. Where there is a history of absconding, the significance of the decision is enhanced. Where there is a history of non-cooperation, it is yet further enhanced, not least because of the consequences in terms of public policy in having such an individual living in the community, as this Appellant now has been since his release (as I have described at paragraph 8), for an indefinite period. In December 2011 and January 2012 the Secretary of State's officers actively reviewed the case and considered a range of possible interventions, for example using s 35, to break the impasse that had been reached. At the same time, the Appellant himself was questioning the adequacy of the Burundi liaison officer's interview. The review of 15 February suggested a vigorous deployment of the s 35 process, but at a meeting in early March the decision was made to release the Appellant on bail.
51. Applying that consideration of the facts to the 3^rd Hardial Singh principle, it is simply not possible to hold that the judge was wrong to find, as he did, that by the time of release 'it had not yet become apparent that the Secretary of State would not be able to affect deportation within a reasonable period'.
52. On Ground One, I therefore conclude, firstly, that the judge's passing observation to Sino does not indicate any error of law with respect to his decision in this case, and secondly, in any event, on the agreed facts of the case, there is no basis for holding that the judge was in error in his application of the law relating to the 3^rd Hardial Singh principle.
53. With respect to Ground Two, the entry made by the Deputy Director on the pro-forma must be read as a whole. The judge was entirely correct to hold that the Deputy Director's intervention on 15 February did not alter the overall lawfulness of the Appellant's continued detention and that it was qualified by the recommendation for the vigorous pursuit of a s 35 prosecution.
54. Although it is not necessary to do so in order to determine this appeal, which, as I have indicated, on this point turns on the reading of the 15 February review as a whole, for the reasons put forward by Miss Anderson, I am unpersuaded by Mr Metzer's submission that the 3^rd Hardial Singh principle requires the Secretary of State to maintain a subjective state of mind on the issue of her inability to effect deportation within a reasonable period, which is separate and distinct from a court's later objective evaluation of whether such an inability is apparent.
55. For the reasons that I have given, the appeal fails on both grounds and is to be dismissed.

Lord Justice Flaux:

56. I agree.