Neutral Citation Number: [2006] EWHC 2690 (Admin)

Case No: CO/7000/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS AND
A CLAIM FOR JUDICIAL REVIEW

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/10/2006
Before :
THE RIGHT HONOURABLE LORD JUSTICE AULD
And
THE HONOURABLE MR JUSTICE WILKIE
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Between :

	R (on the application of Q)	Claimant	
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	1)	SECRETARY OF STATE FOR THE HOME DEPATMENT
2)	THE GOVERNOR OF HMP LONG LARTIN	Defendants	

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Ms Frances Webber for the Claimant
Mr Robin Tam for the Defendant
Ms Helen Mountfield as the Special Advocate

Hearing dates: 3rd October 2006
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Judgment

Lord Justice Auld:
1.	On 3rd October 2006 this Court dismissed the claims on behalf of Q, who is detained for deportation under the Immigration Act 1971 (“the 1971 Act”), Sch. 3, para 2(3), for the issue of a writ of habeas corpus, and/or for judicial review in the form of a mandatory order for his immediate release, and/or for a declaration that he is unlawfully detained or a mandatory order requiring his response to Q’s request for release.  The Court, having reserved its reasons for dismissing those claims, now gives them. 
2.	Following certification by the Secretary of State for the Home Department under section 23 of the Anti-terrorism Crime and Security Act 2001 that Q was a suspected international terrorist he was initially detained with 16 others in January 2003 under s. 21 of the Act. Omitting unnecessary detail for the purpose of these applications, he remained in detention under those powers and, for a period whilst serving a sentence of imprisonment for fraud.  Following the ruling of the House of Lords in A & Ors v SSHD [2004] UKHL 56, [2005] 2 AC 68 that section 23 was incompatible with Article 5 of the European Convention of Human Rights (“ECHR”) and its replacement and that of associated provisions in the 2001 Act by the Prevention of Terrorism Act 2005 (“the 2005 Act”), he was, in March 2005, first granted bail under strict conditions pursuant to the 2001 Act and then made the subject of a Control Order under section 1 of the 2005 Act. Thereafter, he remained at liberty subject to the Control Order until August 2005, when he was served with a notice of intention to deport, arrested and detained for the purpose under Schedule 3 of the Immigration Act 1971.
3.	Until shortly before that time, 1st July 2005, Q, who was a master of the use of aliases and documentation supporting them, had not disclosed his true identity to the UK authorities. He then disclosed to them what he maintained was his true identity, and provided them with documentation, including his birth certificate and school certificates, purporting to verify that identity.
4.	Q gave notice of appeal against deportation and applied for bail, an application that Ouseley J, sitting in the Special Immigration Appeal Commission (“SIAC”), in A & Ors v SSHD, 20th October 2005/SC/33/35-39, dismissed.
5.	On 24th March 2006 Q withdrew his appeal against the notice of intention to deport him, and 3 days later, on 27th March, a deportation order was signed and served on him. At about the same time the UK Government informed the Algerian authorities of the name Q had given to them as his true name, his date and place of birth in Algeria and his father’s name.  As the Algerian authorities had indicated that that was the only information they required to verify his identify, the UK authorities did not at that stage provide the Algerian authorities with any of the supporting documents he had given them or any further family details. However, shortly afterwards, in April, Q himself provided Algerian consular representatives with copies of those documents.
6.	Thereafter, the UK authorities, and Q’s solicitors have repeatedly urged the Algerian authorities to conduct and complete their verification of Q’s identity as an Algerian citizen so as to enable them to allow his entry to Algeria and the UK Government to give effect to the deportation order.  The Algerian authorities, for their part, have throughout indicated that they were taking steps to verify Q’s identity, that they were having difficulty in doing so, and, from time to time, asked for more information from the UK authorities to assist them in their quest.  Thus, in July 2006, the UK authorities, in response to such a request, provided the Algerian authorities with a photograph of Q and his finger- prints.   And, in September the UK authorities, in response to indications from the Algerian authorities of lack of progress and requests for more information, sent them originals of what Q had provided as his birth certificate and school certificates (copies of all or some of which Q had himself provided to Algerian consular representatives in April).  
7.	Most recently, on 2nd October 2006, the day before the Court heard these applications, the UK Authorities, having shortly before, at the request of the Algerian authorities, obtained a DNA sample from Q, sent them his DNA profile.   If, as the UK Authorities believe, Q has relatives in Algeria, prepared to be matched against that sample, the question of his identity should be capable of resolution very soon.
8.	 Thus, whilst the Algerian authorities, in response to repeated enquiries and exhortations from Q’s solicitors and UK authorities to expedite the matter, have purported to be doing their best, they seem to have made very slow progress.  Recent reports from them suggested at the time of the Court’s ruling that they were near completing their enquiries.  But as yet, the matter was unresolved and the UK Government and Q were still waiting.
9.	The result, as I have indicated, is that Q has been in detention with a view to his deportation for some 14 months since August 2005.  Whilst he had disclosed to the UK authorities in July 2005 what purported to be his true identity and his use of various aliases, he sought for the first seven months of that period, that is, until March 2006, to appeal the UK’s proposed deportation of him to Algeria.  During that period the UK Government saw little point in making contingent arrangements with the Algerian authorities – sending them documentation as to identity etc – since, if the appeal succeeded, there would be no need for them to verify his identity and Algerian provenance.  However, in the six to seven months following Q’s withdrawal in March 2006 of his appeal against deportation, both he and the UK authorities took the steps that I have summarised to facilitate his deportation to Algeria. By late August 2006, Q and those advising him had, not surprisingly, lost patience, and, by these proceedings, sought a remedy against the only target available to them, the UK authorities.
10.	Q’s complaints are that:
i)	The UK authorities have known his true identity for some 14 months, since July/August 2005, they should not have waited until his abandonment of the deportation appeal in March of this year before providing information to the Algerian authorities to enable them to start their investigations;
ii)	since his withdrawal in March 2006 of his appeal, the UK authorities have provided inadequate, incorrect or misleading information to the Algerian authorities, information that was likely to obstruct or delay the process of identification;
iii)	the Algerian authorities have shown a persistent tardiness and/or incompetence in processing the matter, which though not directly the responsibility of the UK authorities, might have been overcome if they had alerted the Algerian authorities earlier and had provided them with more, or at any rate, accurate information, and;
iv)	regardless of who is at fault for the delay, his detention has gone on so long that its length and the circumstances giving rise to its continuation have become unreasonable, citing R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, QBD, per Woolf J, as he then was, at 706B- 707F, and In re Mahmod [1995] Imm AR 311, QBD, in which it held ten months to be excessive.
11.	Miss Frances Webber, on behalf of Q, submitted that the Court should focus on the legality of the detention after all this time, bearing in mind the limits on the statutory power to detain in Schedule 3 to the 1971 Act imposed by the common law and Article 5(1)(f) of ECHR, namely that: 1) detention may only be for the purpose of removal and for a period of time necessary for that purpose; 2) that neither the UK nor the Algerian authorities had taken all necessary steps to enable the removal of Q to Algeria within a reasonable time; see Hardial Singh, per Woolf J, as he then was, at 706D-F - in particular, the UK authorities should not have waited until Q’s abandonment of his deportation appeal in March 2006 before providing the Algerian authorities with the necessary information and that they should, in any event, have provided more timely and adequate information to them than they did in the  ensuing six/seven months, and the Algerian authorities should have pursued their enquiries in Algeria with greater diligence than they appear to have done; and 3) that even if the UK authorities had done all they should have done to facilitate the execution of the deportation order, the length of detention to date and the lack, on the evidence before the Court, of any reasonable prospect of removal in the immediate future, were enough to render his continued detention unlawful; see Mahmod. 
12.	Miss Webber suggested, on a sliding scale, three alternatives to the Court if it was minded to grant or consider the grant of some relief in this case.  First, if the Court was with her on her contentions as to the illegality of Q’s continued detention, she invited it to order the Secretary of State to direct Q’s release on stringent conditions, if required – conditions, that is, akin to bail conditions on a control order.  Alternatively, she suggested, if the Court was against her and of the view that Q’s detention was lawful, it could nevertheless grant him conditional bail under paragraphs 2(5) and (6) of Schedule 3 to the 1971 Act as “a person liable to be detained” under paragraph 2(3) of that Schedule, namely liable to be “detained pending his removal or departure”.  In the further alternative, she said that the Court could do as it did in Hardial Singh, grant a short adjournment of the applications.
13.	Mr Robin Tam, as he then was, for the Secretary of State, submitted that the detention remained lawful in all the circumstances, in particular: 1) the UK government had taken all reasonable steps to facilitate the execution of the deportation order, by its provision of information to the Algerian authorities to enable them to verify Q’s identity; 2) Q’s past liberal use of aliases had made the Algerian authorities’ task in that respect particularly difficult; and 3) there was a prospect of being able to secure Q’s departure within a reasonable time.
14.	Underlying those respective submissions as to the lawfulness of Q’s detention were the first two of the requirements identified by Woolf J in Hardial Singh, including in the circumstances of this case considerations of national security. Miss Webber urged the Court, given the length and circumstances of Q’s detention pending deportation, not to give those considerations disproportionate weight.  Mr Tam rightly reminded the Court that it was one, but only one, of the circumstances that the Court should take into account. 
15.	In determining whether detention is lawful for the purpose of deportation, the Court should consider all the circumstances of the case, including its length, effects on the detainee, the likelihood of his absconding and/or offending, his willingness to accept voluntary repatriation and the relevant or substantial cause of his detention; see R(I) SSHD [2002] EWCA Civ 888, [2003] INLR 196, CA.
16.	The implications of Q’s release from detention for national security gives particular focus to the Court’s assessment of the likelihood and seriousness of his absconding and/or offending. I should record that the Court had available to it, in the open material, Ouseley J’s assessment in the bail application before him in October 2005 that Q’s application had “very significant security implications indeed”  This is what he said, in paragraph 117 of his judgment, indicating the risk to such interests but, also in passing, the contribution to it of Q’s extensive and skilful use of aliases:
“.. There is a national security case of some strength for Q to meet on this appeal.  He must know that there is a reasonable prospect that his challenge to that aspect will fail, though again it gives him two strings to his bow.  The national security implications of his absconding, if parts of that case are correct, are, however, very significant indeed.  Whatever advice he has received about the strength of the Article 3 case – and no one could sensibly advise that success for Q was certain – the decision to make the deportation order, with the greater impetus and will after the July events behind obtaining a Memorandum of Understanding with Algeria giving effect to it, represents a very significant change in the way in which SIAC judges Q would evaluate the risks he faces of and on return.  The evidence, if correct, indicates fraudulently-obtained funds, false documentation and the fact that extensive extremist contacts could be available should Q wish to take an opportunity to abscond, an opportunity which, inevitably, exists even with the strictest of conditions, an we think that there is a very real prospect that he would abscond and, having absconded, would go underground to continue what, on the Secretary of State’s evidence at present, if it is right, would suggest very significant activities?  The control order conditions might have been adequate for their purpose, but with the now much heightened risk of his absconding, we consider that bail should be refused, as it is.”   
17.	Miss Webber submitted that there is enough there for this Court to go on, unless any available closed material shows that the risk of Q to national security, if released from custody had since increased.  The Secretary of State lodged closed material with the Court, and Miss Helen Mountfield, was instructed as a special advocate to assist on the matter if required. I should record that Wilkie J and I have read the closed material, but that, in the light of our consideration of the open material and the submissions of Miss Webber and Mr Tam, we concluded that it was not necessary to have regard to it in reaching our decision on this matter.  Accordingly, we did not need to seek assistance from Miss Mountfield.
18.	 The primary issue for the Court, as both Miss Webber and Mr Tam agreed, is as to the lawfulness of Q’s continued detention, lawfulness in this context being informed by the case-sensitive consideration of reasonableness in all the circumstances.  The answer in any particular case requires a value judgment by the Court, taking into account the length, circumstances and reasons for the detention in question, including in particular the Hardial Singh considerations in the context, here, of consideration of its continuing legality, namely that that it must be for the purpose of removal and limited to the period necessary for that purpose.   As Mr Tam has pointed out, neither habeas corpus nor judicial review is an ideal remedy for the purpose of considering length and limit of lawful detention following and for the purpose of a lawful detention order, notwithstanding obiter observations of Woolf J in Hardial Singh at 706D and 708A; see R (Khadir) v SSHD [2005] UKHL 39, [2006] 1 AC 207, per Lord Brown of Eaton-under-Heywood, at paragraph 33.  Habeas corpus would not serve where a finding of unlawful detention and release might nevertheless require replacement with rigorous control conditions themselves amounting, albeit in different form, to unlawful detention.   And if the Court’s view were that the detention is in the circumstances unreasonable, but not Wednesbury irrational, there is presumably a requirement on the Court to move to proportionality, with all the untidiness of principle that that continued “trek” from Wednesbury involves.  
19.	Whatever the appropriate form of remedy to enable the Court to do justice in balancing the interests of the liberty of the subject and the national interest in a case such as this, the Court should no doubt form its own view on Hardial Singh lines whether, at the date of its decision on 3rd October, this detention, is no longer lawful in the sense of being reasonably required to secure Q’s removal from the country.  I am mindful of Miss Webber’s and Mr Tam’s caution that national security is not the only, nor depending on the circumstances, necessarily the predominant factor for consideration in answering that question.  However, it is clearly an important consideration here, given the strong national security implications if Q were to abscond, as found by Ouseley J, implications aggravated by his adeptness in the use of false aliases.  As Mr Tam pointed out, the UK Authorities are still not sure that he has disclosed his true identify, notwithstanding the documentation he produced in July 2005 purporting to verify the identify he then proffered.  
20.	In the Court’s view, despite the unfortunate legal history of this case since January 2003, the appropriate period for considering the delay for the purpose of these applications is from Q’s withdrawal in March 2006 of his appeal against deportation, a period of six to seven months.  Until then the Secretary could not know whether or when he would have power to deport him and, with it, a corresponding obligation to engage the Algerian authorities as to the details they required in his case as to his identity and family connections etc.  As to the UK Government’s conduct of the matter once Q had withdrawn his appeal, it has been uniformly one of constant urging of the Algerian authorities to undertake and conclude their enquiries, providing them with the information they requested from time to time, which Q had furnished for the purpose.  Whilst there was delay in forwarding the original of his birth certificate and possibly other originals that he had originally provided in July 2005, these were clearly not causative of the Algerian authorities’ delays or difficulties or their continuation to the date of these applications.
21.	As to the Algerian authorities, although there is said to have been dilatoriness and/or incompetence on their part, there is no evidence suggestive of bad faith.  Q’s case was similar to those of two other Algerian nationals, in respect of whom the Algerian authorities undertook the necessary enquiries and completed the documentation enabling their removal to Algeria. If Q had not been such a serial and accomplished user of aliases, their task in his case would, no doubt, have been easier.  
22.	In addition, whatever the circumstances giving rise to the delay, there appeared at the time of our hearing the applications to be a real possibility for early resolution by the Algerian authorities of the matter through DNA matching in addition to the other material provided to them earlier.  The process towards deportation appeared to the Court to have current momentum, unlike in the cases of Hardial Singh and Mahmod on which Miss Webber relied, in each of which it had seemingly stalled.  
23.	In all those circumstances, including the likelihood that the UK authorities would in the near future be empowered to deport Q and the serious risk to national security that he would pose if he were at large in the meantime, the Court was of the view that his detention had not yet become unlawful.  Accordingly, the Court considered that neither of the alternatives suggested by Miss Webber would be appropriate and that it should dismiss the claims.   
24.	The Court is grateful to Mr Tam for his argument that an additional basis for dismissal of the claims was the availability of an alternative remedy of a bail application to SIAC under paragraph 2(4A) of Schedule 3 to the 1971 Act.  However, in the light of the Court’s reasons for its decision, it was not necessary to consider that argument, save to observe that it is possibly more of tactical value than legal significance where the prime contention of a claimant, as that of Q here, is for relief on the ground that his detention is unlawful. 
Mr Justice Wilkie:
25.	I agree.