QUEEN'S BENCH DIVISION THE
ADMINISTRATIVE COUR T
Strand London WC2A 2LL
Date; Thursday, 9 October 2008
B e f o r e :
(Sitting as a Deputy High Court Judge)
| THE QUEEN ON THE APPLICATION OF IO
|SECRETAR Y OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company 190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Miss C Patry-Hoskins (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Crown Copyright ©
"The last review was signed off at the appropriate level on 29 July 2008, it was recommended that section 35 action was initiated as soon as possible."
On 1 August 2008 a request was sent to CCD Ops to initiate section 35 action, however we have been advised that we cannot proceed with this until the judicial review is concluded.
On 21 August 2008 a further letter was sent to SB asking if she has, or can obtain, contact details for the subject's (adopted) mother who apparently now lives in Canada. A letter was also sent to the subject asking him for his last address in Ghana and the hospital where the DNA test was carried out in 1995."
"On 11 July 2008 Ops team stated that a section 35 prosecution was not likely to succeed, but there was no preclusion on serving an IS35 even though there is no prospect of conviction."
"The current barriers to removal remain a valid ETD and the outstanding judicial review. We are currently making efforts to secure an ETD, however Mr O's failure to provide sufficient proof of his identity or nationality has hindered our attempts."
Under the "Proposal" section, it reads:
"Mr O's actions indicate that he would represent a high risk of absconding. He overstayed his permitted leave and failed to regularise his stay for a considerable period. He has repeatedly provided misleading information relating to his nationality and has failed to provide any evidence to support his claims despite numerous prompts. He has no known close ties in the United Kingdom and is also aware of our intention to remove him as soon as a travel document is made available. It is therefore suggested that he would have little incentive to remain in contact if released."
"Following the expiration of his visitor's visa in 1999 and his detection in 2004 he made no effort to regularise his stay. This happened again following his unsuccessful appeal in November 2006 and December 2007. For these reasons, the subject is considered to pose an average risk of absconding and his continued detention is therefore in line with current criteria as outlined in the EIG.
Despite this, we are no nearer to removing the subject and, although we are still pursuing avenues, we cannot gauge the timescales or prospects of success. The court may soon decide whether they believe his continued detention to be reasonable as an unlawful detention hearing is currently scheduled for 3 October 2008.
"You are advised that your continued failure to co-operate with the Emergency Travel Documentation process is a factor in the decision to maintain detention. You should also be aware that continued failure to co-operate will remain a factor in deciding whether to maintain detention or grant bail in the future. While decisions will be considered on the basis of all known relevant factors, you should note that non-co-operation may result in a prolonged period of detention. In addition, there is an onus on you to leave the country once your appeal rights have been exhausted."
"Now that the claimant has agreed to participate in language testing analysis and that Interpol are involved, we are confident that we shall soon be able to independently established the claimant's nationality without further recourse to him. Given the claimant's previous non-compliance and poor immigration history it is proposed detention should be maintained until we can establish his true nationality and arrange his removal from the United Kingdom. The claimant has stated he was born in Niger, but brought up in Ghana and Liberia. On previous occasions the claimant has stated that he is a national of Ghana and has claimed asylum as such. He is unable to provide any supporting evidence of any nationality or connection to any country. He has also provided contradictory information about his family relationships and history. The confusion over the subject's nationality is in part down to his previous deception and non-compliance. It is therefore considered that he would not comply with any conditions imposed upon him and that he imposes an absconder risk. We are satisfied that he can be deported within a reasonable time."
"I have tried to co-operate throughout in the process, having also waived any appeal rights that may be open to me. I have attended every interview requested, have provided information when requested, and have not made contradictory statements regarding my complex family set up. I have agreed to undertake language testing and provided as much information as I can, having also served a term of imprisonment for accepting that a previous passport has been wrongly obtained by me. I do believe it is wrong to characterise my approach as anything other than co-operative."
The Legal framework
"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)."
"There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment, Mr Robb correctly submitted that the following four principles emerge:
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.
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 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.
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(3) of schedule 3 to the Immigration Act 1971. 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 sur mount 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."
"In those circumstances, for continued detention to be lawful two questions have to be capable of being answered. First, by when does the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation? Mr Patel, on instructions, is understandably unable to answer either of those questions, other than by the generality that the Secretary of State expects to be able to deport him within a reasonable time. Mr Patel realises that that begs the question. In my view, against the history that I have recited, there is simply no basis for concluding that A can be expected to be deported within the near future, nor can anybody, let alone the Secretary of State, give an answer to the first of those questions. An impasse has been reached in A's case. It has been reached after the lapse of many months of detention. His detention has now become unlawful."
"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 individual's continued detention is a product of his own making."
The claimant's submissions
The defendant's submissions
"Despite this, we are no nearer to removing the subject and, although we are still pursuing avenues, we cannot gauge the timescales or prospects of success."
That was capable of referring to the overall position on detention, although the defendant submitted that, in fact, that was dealing with the position looking forward and that the defendant had in fact taken all reasonable steps.
"We are satisfied that he can be deported within a reasonable period of time."
"We are no nearer to removing the subject and, although we are pursuing avenues, we cannot gauge the timescales or prospects of success."
claim for damages and I do make that claim, but suggest that those be determined in due course.
-- well, before damages can be assessed, there has to be some assessment of the period for which detention was unlawful because of course you cannot assess damages unless you take a view as to which period. Obviously detention was initially lawful. This is not a case where you have said that the entire period was unlawful, and we do not have a time marking for when the period did become unlawful. So that might be something which we might need to discuss between us.
respond to some correspondence, I accept that, but that is not, in my submission, a basis for awarding costs on the indemnity basis. Had the Secretary of State failed to respond to this claim or had somehow behaved unreasonably in the course of litigation, then that might be different, but in this case the Secretary of State has at every stage throughout the detention attempted to take steps to remove or depo rt the claimant, has attempted to ensure that he is informed of why, by carrying out detention reviews on a regular basis, and the failure to respond to a few letters, in my submission, is not a proper basis for awarding indemnity costs. If you are minded to make such an order, then I would be grateful for a moment to have a look at the rules and make sure I have said everything that there is to say.
"The order which I propose to make, subject to counsel, is that which I made in Bashir v Secretary of State  EWHC Admin 3017, namely that each of the three claimants I have identified should be admitted to bail on conditions which include a 12•hour curfew, tagging, daily reporting to an immigration office or at a police station and residence at an address to be identified or agreed by the Secretary of State."