England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Friday, 12 September 2003

1. MR JUSTICE LEVESON: The claimant is a national of the Democratic Republic of Congo. For some 19 months he has been detained, currently at Dungavel Removal Centre, pending his removal to that country. He now applies for a writ of habeas corpus lodged on 17 July 2003 seeking an order for his immediate release. On 23 July Mr Justice Richards ordered that the application be heard no later than 15 August. Subsequent adjournments have been occasioned by the needs of each side to deal with the late served evidence.
2. The chronology must be set out in some detail. On 30 June 2000 at the age of 22 the claimant arrived in the United Kingdom without travel documents on the EuroStar at Waterloo. He applied for asylum. That application was processed, and on 28 February 2001 it was refused. The claimant appealed against that decision. By notice dated 4 April his appeal came to be heard by the adjudicator who, on 18 September, dismissed it, rejecting his evidence at least in part as unreliable. Thereafter the claimant unsuccessfully sought permission to appeal from the Immigration Appeal Tribunal. That application was dismissed on 9 November.
3. On 31 January 2002 the claimant brought a challenge under the Human Rights Act addressed to the Secretary of State alleging that he had a partner in the United Kingdom who was expecting their child. Meanwhile on 1 February he was detained at Tinsley House pending his removal. On 5 February he was moved to Haslar, another detention centre, but two days later was transferred to HMP Wandsworth where he remained for some two months. That transfer was consequent upon his disruptive behaviour. On 21 March 2002, after the authorities of the Democratic Republic of Congo provided approval to the Immigration Service for the claimant to be removed by European Union letter, his Human Rights Act representations were rejected. Removal directions were then set for 8 April. On that day the claimant was escorted, as he had indicated that he would resist removal. In the event, removal was not pursued because his solicitors indicated that they intended to seek judicial review. On 11 April that application was issued. In the following two months three bail applications were made, each one of which was unsuccessful.
4. On 23 July Mr Justice Pitchford dealt with the application for judicial review which he refused on paper. His reasons were:

"The claimant has merely repeated his case to the adjudicator. He has identified no error of law by the Immigration Appeal Tribunal. The adjudicator disbelieved the claimant on essential parts of his evidence. He was entitled to do so for the reasons mentioned in the determination."

5. Removal directions were set for 2 October 2002. On that date there was the second attempted removal. The claimant again resisted. On this occasion he had to be removed from the aeroplane consequent upon his disruptive behaviour. I ought to make it clear that when asked about his disruptive behaviour it was apparently asserted that this was on the basis of advice from his solicitors who suggested that he should resist. On 26 October the third attempted removal again was unsuccessful. The defendant asserts that the airline refused to carry him due to his disruptive behaviour. The claimant disputes the circumstances of this attempted removal and contends that the airline's refusal was due to lack of clear documentation. In any event, the solicitors' advice, referred to only some 24 days earlier, was presumably still in place. Further removal directions were set for 6 December.
6. Unfortunately in November the Democratic Republic of Congo stopped accepting European Union travel documentation as sufficient for the return of nationals. So the removal directions had to be cancelled because European Union documentation was all that was available. In that month there was apparent agreement that nationals of the Democratic Republic of Congo could be returned using a European Union letter and that the use of charter flights would be acceptable. Unfortunately that agreement does not appear to have been capable of being pursued.
7. In January 2003 the claimant made a further bail application which was also unsuccessful. In February the assistant director of the Management of Detained Cases Unit wrote to representatives of the claimant:

" ..... I can confirm to you the current situation relating to the return of nationals to the DRC. The Immigration Service met with officials from the embassy of the DRC on 27 November 2002 where it was agreed that nationals of the DRC could be returned there using an EU letter and that they were content, in principle, to returns by charter flights. This would resolve any difficulties that were being faced by the non-acceptance of EU letters by transit States.

Colleagues from the Immigration Service expect to meet again with the embassy of the DRC in the week beginning 24 February to discuss arrangements for the return of a number of individuals from the DRC. We are confident that once this meeting has taken place that we will be in a position to set removal directions relating to those individuals that those removal directions will take effect as soon as practically possible after that meeting."

In February another bail application was made but was withdrawn. In that month the claimant indicated his willingness to return to the Democratic Republic of Congo, although the following month he failed to complete, or refused to complete, emergency travel documentation. In March the same official of the Management of Detained Cases Unit wrote:

"No removal directions have yet been set relating to any people who we are proposing to remove to Kinshasa by charter flight. This is because the aircraft has not yet been chartered and we are awaiting clearance of the passenger manifest by the DRC Embassy."

It concludes:

"I agree that many of these cases have now been in detention for a fairly long period. This is for a variety of reasons, but I now consider that we are in a position to remove these cases in the near future. I consider that further detention remains reasonable in all the circumstances but each case is reviewed regularly and will be reviewed in the light of comments received back from the Embassy."

On 18 March a further bail application was made and withdrawn. In the following month there was an unsuccessful bail application.

8. On 30 April the claimant completed bio-data information. It is asserted by his solicitors that he completed this form on the basis that he then preferred to return to the Democratic Republic of Congo rather than to remain in long term detention. This information was necessary so that the authorities in the Democratic Republic of Congo could be satisfied that they were dealing with one of their nationals. It will be remembered that he entered this country without travel documents. On 3 May the claimant was transferred to Dungavel Removal Centre.
9. In early June a request was made, given the claimant's co-operation, that he assist in the completion of emergency travel documentation. On this he refused to do so. He said that he had been advised specifically to frustrate attempts to remove him. His willingness of 6 weeks previously had apparently evaporated. On 3 June, in response to a letter from his solicitors, the Unit wrote:

" ..... the length of Mr Badjoko's detention has been as a consequence of his own actions. Removal directions have been set on two previous occasions only to be frustrated by a last minute application for judicial review and then due to your client's disruptive behaviour resulting in the airline refusing to carry him. Since then your client has consistently displayed disruptive behaviour and has also refused to co-operate with all attempts to obtain a travel document to help facilitate his removal.

.....

Rest assured your client's case is reviewed regularly and any change in circumstances will be taken into consideration when reviewing his case. I would now advise you to speak to Mr Badjoko and advise him to co-operate with the travel documentation process, his lack of co-operation is only serving to prolong the duration of his detention."

In the event, on 13 June, the form was completed by the Unit following refusal of the claimant to co-operate.

10. In July, again, a letter was written seeking explanation for prolonged detention. The Unit replied on 22 July:

" ..... the length of your client's detention has been as a consequence of his own actions. Removal directions have been set on two previous occasions only to be frustrated by a last minute application for judicial review and then due to your client's disruptive behaviour resulting in the airline refusing to carry him. Since then your client has consistently displayed disruptive behaviour and has also refused to co-operate with all attempts to obtain a travel document to help facilitate his removal. It is not our policy to reward such behaviour by granting temporary admission as this sends out the wrong signals to other detainees. Going on Mr Badjoko's behaviour throughout his time in detention we could also have no confidence that he would maintain contact should be released from detention."

As I have indicated, on 23 July an application was made to Mr Justice Richards and so this judicial procedure commenced.

11. The law is not contentious. Detention is justified by paragraph 2 (3) of Schedule 3 to the Immigration Act 1971 which is in these terms:

"Where a deportation order is enforced against any person he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom."

12. The approach was delineated by Mr Justice Woolf (as then he was) in Re Hardial Singh [1984] 1 WRL 704 in which the judge said:

"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, the authority draws attention to the individual being detained ' ..... pending his removal'. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being confined and limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of a 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, removing persons whom it is intended to be deported within a reasonable period it seems to me to be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure the steps taken which would be necessary to ensure the removal of an individual within a reasonable time."

13. In the event, after a five-month delay, Mr Justice Woolf adjourned the hearing for a few days with an indication that he should be released unless it proved possible to remove him "within a very short time indeed". Amongst the considerations to which he appeared to have regard were: (a) the fact that the applicant was quite prepared to return to India; (b) that the Home Office had not taken the action they should have taken and nor had they taken that action sufficiently promptly; and (c) that the applicant had become distressed by his continuing detention and had made an attempt to take his own life. This formulation was specifically approved by a decision of the Judicial Committee of the Privy Council in Tan Te Lam v Tai A Chaw Detention Centre 1997] AC 97.
14. I come to a recent decision of the Court of Appeal in "I" v Secretary of State for the Home Department [2002] EWCA Civ 888, which concerned a 40-year old Afghan sentenced to 3 years' imprisonment and ordered to be deported. He was due for release on licence on 7 February 2001 but continued to be detained for nearly 16 months. The Court of Appeal ordered immediate release. The principles were summarised by Lord Justice Dyson at paragraph 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 ..... But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that if released, he will commit criminal offences."

Lord Justice Dyson summarised Tan Te Lam (above) in the following four propositions at paragraph 46:

"(1) The Secretary of State must intend to deport the person and can only have power to detain for that purpose; (2) the deportee may only be detained for a period that is reasonable in the circumstances; (3) if, before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within that reasonable period he should not seek to exercise the power of detention; (4) the Secretary of State should act with reasonable diligence and expedition to effect removal."

15. It is important to appreciate that the decision in this case does not affect deportation but only detention although, not surprisingly, the defendant contends that if in this case the claimant is released he will vanish given his wish not to return to the Democratic Republic of Congo as demonstrated by his conduct in at least two attempts to remove him. The only proper inference to draw is that he will continue his resistance both active and passive not to return and so fail to attend to be deported.
16. The application was commenced at a time when the claimant's advisers believed that the defendant was no nearer arranging the claimant's deportation than ever he was. There is no doubt that over the months between January 2003 and July 2003 a number of apparent confirmations and expressions of intention appear to have remained unfulfilled. So it was that in the original skeleton argument supporting the application the matter was put in this way:

"The applicant has been detained for a total of 17 months, which is a very long time indeed. Whilst it is true that the applicant did resist removal and this is a factor, which goes to the question of whether, he would abscond (and hence go to the issue of reasonableness of continued detention). The fact is that this took place as long ago as October 2002. Further in light of what the applicant has been told by fellow detainees and previous representatives ..... the fact that he resisted removal at that time has only limited bearing on whether he will abscond now. Indeed it would appear that CIPU are taking the risk to return failed asylum seekers very seriously. It should also be noted that the applicant has otherwise abided by all the [Immigration Service's] instructions in the past and there are no other reasons why it should be said that he is likely to abscond over and above those that would apply to any failed asylum seeker. Indeed his only failure to follow the [Immigration Service's] instructions was when he was convinced (not unreasonably) that the DRC was detaining and ill-treating returnees like himself. At the current time the CIPU is looking into this matter and this will take several months - presumably even in the unlikely event that the [Immigration Service] and the DRC Embassy could reach a decision where removal could take place this would not in any event occur until the CIPU has completed its investigations."

17. The fact that there may be evidence that the claimant feels is sufficient to justify his concern that he will be ill-treated is not to the point of whether his detention to date has been within the terms of the principles to which I have sought to refer. The defendant entirely accepts that 19 months is far longer than is generally appropriate or, indeed, than he would have wished. Assessing this case on its own facts, however, it is argued that the time has not yet passed where his detention has been unreasonable.
18. Reliance is placed on a number of features of the claimants' conduct. First, his refusal to co-operate and then his intimation of judicial review which led to the failure of the first attempt to remove him. The application for judicial review was dismissed on paper and not renewed. Second, the active obstruction in two further attempts to remove him. At least one was obstructed by physical resistance, whether advised on another. The other also may have been as a result of obstruction. Third, the efforts made by the Secretary of State since December 2002 to overcome documentary difficulties and to effect removal by scheduled flight direct to the Democratic Republic of Congo together with the claimant's refusal to co-operate in the compilation of travel documentation. Certain it is there is no reason to challenge the evidence submitted by the defendant that the government has been given assurances by the Democratic Republic of Congo and that efforts in that regard do not indicate any want or lack of due diligence on its part or want of good faith. Indeed, the only issue directed to the question of diligence is the allegation that the Immigration Service have failed to respond to two letters written by the claimant's present solicitors. There is an issue as to whether they did respond.
19. The next feature on which the defendant relies is the condition of the claimant's detention and the absence of any substantial evidence indicating that detention to date has caused him any prejudice. It is certainly correct that in "I" there was evidence the claimant was subject to a prison regime applicable to convicted prisoners. He was taking no English classes and doing no work: he needed medication to sleep and was suffering from depression. There is to no such evidence in this case and - save for two months consequent upon disruptive behaviour - he has been detained in a detention centre rather than in prison conditions. It is alleged on behalf of the claimant that he is "feeling low and prone to mood swings" but there is no suggestion that that has led to any psychological/psychiatric ill-health. While clearly the absence of prejudice cannot justify indefinite detention, it is of course relevant.
20. Finally, the defendant relies upon the risk that the claimant would abscond if released. In "I" the Court of Appeal accepted that the risk of the claimant absconding could be relevant, albeit emphasising it should not be treated as a trump card.
21. In my judgment the defendant is entitled to rely on the claimant's behaviour while in detention in relation to earlier efforts to remove him and his lack of co-operation - not only initially in relation to bio-medical data and travel documentation, but also as recently as 9 September when an attempt was made by representatives who had travelled from the Democratic Republic of Congo to this country to interview him and others to obtain confirmation that he was one of their citizens - as evidence of a willingness to frustrate the efforts of the authorities to deport him. Furthermore there is no evidence or suggestion that the claimant has any ties to any community within this country or that any particular steps could be taken by him to assure the authorities that he would in fact attend when required.
22. What is the position now? As I have indicated, on 9 September an attempt was made to interview the claimant. Although his solicitors had been advised that attempts to co-operate would be relied upon in these proceedings as demonstrating the risk to which I have referred, on advice he did fail to co-operate. In the event it has not affected the decision. I am told - and there is no basis upon which it is suggested that I should not accept what I have been told - that a removal direction has now been set for 30 September. A flight has been identified and escorts arranged. An airline ticket has been purchased and seats are available. All that remains is the issue of emergency travel documents. I am told further that representatives from the Democratic Republic of Congo, who came specifically to consider this case, and others have made it clear that they will issue such documentation within 14 days of yesterday; thus, they should be available by 25 September. I am further satisfied, based upon the assurance which I have received from Mr Otty on behalf of the defendant, that the authorities confirm the relevant delegation had sufficient authority to give that assurance. Thus I am no longer considering some indefinite time in the future to which it is hoped that deportation might take place. It seems to me that the time which has elapsed since these problems arose with travel documents - and I here refer to the period between January and September, the early period of delay being entirely due to the claimant's refusal to co-operate in October 2002 and thereafter - bring this case near to the cusp where continued detention would be unreasonable. Having said that, I recognise and accept that there is a very real risk that if released this claimant will effectively disappear. Notwithstanding that, I would not have been prepared to countenance an opened-ended prospect of ill-defined certainty and had the position not been that a speedy end could now be seen to his detention I would be prepared to take a different view to that which I have reached. I recognise of course that there have been expressions of hope and intention before. But, in my judgment, the material now available is different in quality to that previously available as support for intended plans.
23. On the basis of the present plan and having regard to all the circumstances, including the conduct of the claimant, I reject the application.
24. I do not conclude without a few further observations. If these plans fall through so that a further period is likely to elapse, absent deliberate delaying tactics on the part of the claimant, in my judgment, a different view would be justified. Thus I would then anticipate the claimant would seek similar relief to that which is now sought.
25. Secondly, in the background there is a suggestion that - in the light of recently obtained information and the fact that his solicitors have only, as of yesterday, received the original adjudication - a further application might be made to the Secretary of State to grant this claimant asylum. I would anticipate that if this application is to be made it will be made extremely swiftly. Assuming, as I anticipate and have been told, it would be dealt with swiftly, if any further steps are to be taken in this court, again I would anticipate very swift action. In that event I would hope that steps would be taken to ensure a present fixed date for deportation can be obtained should such application for judicial review fail in limine. Obviously, if it has merit it will then fall to be considered and such decisions as are appropriate as to his continued detention then will fall to be made without necessary reliance being placed upon my earlier observations as to the lapse of the present plans.
26. MR OTTY: We ask that the application be dismissed. We do not asks for costs given the length of detention, so no order as to costs.
27. MISS ROTHWELL: The claimant is funded by the Legal Services Commission.
28. MR JUSTICE LEVESON: You must certainly have an assessment.

Order: Application dismissed