Title: CO/9949/2008
Last saved by: URY/CRONIN

Neutral Citation Number: [2009] EWHC 1289 (Admin)

Case No: CO/9949/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 
 
Date: Wednesday, 14 January 2009 
B e f o r e: 

MR JUSTICE LLOYD JONES 
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Between: 
THE QUEEN ON THE APPLICATION OF ADEWALE 
Claimant 
v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Graham Denholm (instructed by Wilson & Co) appeared on behalf of the Claimant 
Mr Colin Thomann (instructed by Treasury Solicitor) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE LLOYD JONES:  This is an application for interim relief by Mr Adewale, a national of Nigeria, who is detained by the Secretary of State pending deportation.  
2.	The claim for permission to apply for judicial review was issued on 30 October 2008.  It sets out a number of grounds, including grounds relating to the policy set by the Secretary of State, in relation to detention pending removal in deportation cases.  Those grounds have recently been considered by Mr Justice Davis at length in his judgment in Abdi v Secretary of State for the Home Department [2008] EWHC 3166 Admin.  I am told that there is a possibility that there will be an appeal against that decision.  
3.	The application before me today is not brought on such grounds.  It is based entirely on the Hardial Singh principles.  
4.	The background is that the claimant was born in 1959.  It is claimed that he arrived in the United Kingdom in 1984.  There is no documentary evidence as to that.  The records show that since February 2004 he has been convicted of 27 offences on 17 occasions in England and Wales.  He has a number of convictions for theft and other matters relating to dishonesty in 2004, 2005, 2006 and 2007.  The most serious conviction, that which prompted the Secretary of State to decide to deport him, was on 31 September 2007 for which he was sentenced to 9 months' imprisonment and he was to be deported.  
5.	It is important to record that the claimant suffers from chronic lymphocytic leukaemia.  He also suffers from glaucoma hypertension and a blood disorder.  So far as his leukaemia is concerned, the condition is capable of being monitored on a regular basis.  He is not receiving medication.  He has to have regular medical appointments.  The view of one doctor expressed in May 2008 was that it was likely he would be heading towards treatment in the relatively near future.  A report of September 2008 indicated that indicators for commencing treatment had not been met at that date.  His life expectancy has been determined variably; by one expert as 7 to 9 years and another greater than 10 years.  
6.	On 21 August 2007, a day before the end of his most recent term of imprisonment, the Secretary of State served on Mr Adewale a decision that he be deported.  As a result, he was taken the following day into detention under the Immigration  Act.  He appealed against that decision and it was dismissed.  His appeal rights were exhausted on 13 March 2008.  It is clear that notwithstanding the ongoing appeal, the Secretary of State began to take steps to obtain documents for the  removal of the claimant.  Those steps were taken as early as November 2007.  The applicant has therefore been in immigration detention since 22 August 2007, a period approaching 17 months.  
7.	On 30 January 2008 the applicant was interviewed by a  representative of the Nigerian High Commission.  Following that interview, the Nigerian High Commission, on 1 February 2008, accepted that he was a Nigerian national and indicated  that a travel document would be issued provided that he was well.  Thereafter the Nigerian High Commission has failed, despite repeated requests, to provide the necessary travel documentation.  
8.	I should say that a note of the interview which took place on 30 January 2008 records that the Nigerian official's statement on that occasion stated that he would issue travel documents once the claimant ocmpleted his treatment and received assistance as to his condition.  In this case little criticism is made by the applicant of the steps taken by the defendant beyond the criticism that the Nigerian High Commission might have been pressed harder to give the  recommendation.  Equally while it is said on behalf of the  Secretary of State that there were occasions when the claimant did not help himself and he may on occasion have exaggerated his medical condition, it is not a case where it is said the passage of time that has occurred has been   contributed to ‑ to any significant extent ‑ by the non‑co‑operation of the applicant.  
9.	There appear to have been two obstacles to the provision of documentation to the claimant.  The first is that the High Commission appears to have said repeatedly from February 2008 onwards that the relevant official was absent.  There was no one dealing with the case.  The second is that there has been a reluctance on the part of the High Commission to issue travel documentation at a time when the claimant still has medical appointments.  I should make clear that it is not in dispute that the claimant is in a fit condition to travel to Nigeria.   Moreover the nature of his condition is that he is likely to have medical appointments ‑ whether or not treatment ‑ for the foreseeable future.  
10.	An examination of the contacts between the defendant and the Nigerian High Commission reveals, amongst other things,  that on 28 February the defendant heard that the official who normally deals with these things was away and then was told that he was on leave.  In May 2008 the official responsible was absent from the High Commission.  On 22 May 2008 the defendant was informed that the official was on leave.  It appears that on 21 July 2008, when detention was reviewed, the Deputy Director was under a misapprehension that a travel document had been issued.  By 14 August 2008 it was recorded by the defendant that the official was still away and negotiations as to other cases were taking precedence.  
11.	On 18 August there was the submission of a skeleton argument.  
12.	On 13 September bail application submissions were made.  The delay in issuing an emergency travel document had been caused by the key official at the Commission who was on long term leave.  It was anticipated that the matter would be resolved in the future.  
13.	There is before me no evidence on behalf of the defendant.  This is a matter which I consider unfortunate.  The court would have been greatly assisted by a witness statement from an official with responsibility in this case, indicating the steps which had been taken and setting out that official's view of the prospects of this matter being brought to a satisfactory conclusion in the near future.  No such evidence has been brought before me.  In the event, Mr Denholm has had to make his submissions as best he can.  
14.	Mr Denholm has produced today an e.mail of 13 January 2008 relating to this case.  It appears to be from the official.  It states:
"It is confirmed that ..... the application unit has been in contact with the Commission ..... and been informed by them as there is now a completely new complement of staff at the Commission therefore, as Mr Adewale has never been met by any of these new staff, we shall require to interview him again."
It goes on to state:
"It has been suggested that the best course of action is to transfer the case ..... where there shall be a one‑day event on 28 January ..... where Mr Adewale's appeal may be successful." 
15.	It seems to me, as Mr Denholm submits, that that document does place a very different complexion on the application.  As he puts it, the claimant is now in the same position as he was almost 12 months ago, before the High Commission ‑ on 1 February 2008 ‑ accepted that Mr Adewale was a Nigerian national and would issue a document subject to satisfaction about his health.  
16.	I approach this application on the basis of the  principles in Governor of Durham Prison v Hardial Singh [1984] WLR 704 and R (on application of I) v Secretary of State for the Home Department [2003] INLR 196.  In the latter case Lord Justice Dyson suggested four distinct principles which came from Hardial Singh: (1) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (2) the deportee may only be detained for a period that is reasonable in all the circumstances; (3) 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; (4) the Secretary of State should act with reasonable diligence and expedition to effect removal.  
17.	We are concerned with the second, third and fourth of  those principles.  
18.	I have also been referred in argument to the decision in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804.  
19.	In I, Lord Justice Dyson (at paragraph 48) drew attention to material matters in respect of which, as he points out, it is not possible to produce an exhaustive list.  However the matters that would be relevant include 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 obstales; 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."  
20.	I turn to consider the relevant matters in turn.  So far as the risk ‑ the propensity of the claimant to commit further offences, it is accepted, as it has to be by Mr Denholm, that there is a history of persistent offending by the claimant.  It is however a relatively low level category of offending.  The pattern of offending would indicate it is related, at least in part, to drug abuse.  It is right to say that the seriousness of these offences increases with time.  
21.	So far as the likelihood of further offences being committed is concerned, I accept that there is a risk here.  However Mr Denholm is able to point to successful completion of a short‑duration programme during his last imprisonment.  This may lend some support to his submissions that risk of offending is less than it might be.  There is some indication here to suggest he has been addressing drug misuse.  
22.	As far as the gravity of possible offending if the claimant were released on bail is concerned, I bear in mind that the offending of this claimant in the past ‑ although of  a serious nature ‑ has not involved any violence and has been limited to offences of dishonesty.  
23.	So far as the duration of detention is concerned, the defendant concedes that ‑ as Mr Denholm puts it ‑ the length has been unsatisfactory.  He accepts it is highly relevant in this case that this claimant is now a man with a limited life expectancy.  The defendant, rightly, to my mind, accepts that this matter has a considerable degree of urgency which is not present normally in cases of this sort.  
24.	Mr Denholm has drawn my attention to the judgment of Mr Justice Laws (as he then was) in Sivakumaran 2005] IAR 35 which was concerned with rather fruitless negotiations while the defendant spent 10 months in detention following a sentence of imprisonment for drug offences.  In that case, Mr Justice Laws considered it unacceptable.  He said it was unlawful to deprive the applicant of his liberty while fruitless negotiations were being carried on.  It was necessary to make a finding because he was satisfied that  whatever a reasonable period was, it had been exceeded.  
25.	What then is the likely further period of administrative detention?  The official at the High Commission is supposed to have responded on 28 September 2008 and referred to the difficulties which his or her absence created thereafter.  The bail summaries indicated the absence of the official being the cause of the delay.  There is no evidence lodged on behalf of the defendant in relation to this or any other matter.  There is no evidence before me on which I can conclude that the matter is making any progress so that the detention may be considered lawful.  In this regard, I am troubled by the further information provided to the court this morning.  It does appear that Mr Denholm is right in his submission that this case ‑ because of the attitude taken by the High Commission ‑ has gone back to the position it was in a year ago.  Moreover while it is hoped that Mr Adewale may be interviewed by the Nigerian High Commission on 28 January 2009, this is not the specific assessment of his case.  It merely states that his case can be considered on that occasion.  If it is considered on that occasion there is no indication that the matter will then be advanced in any way.  
26.	I turn to the risk of absconding.  This is a matter which has caused me real concern.  It is accepted by Mr Denholm, on behalf of the claimant, that there must be some risk of absconding in the present case.  I also bear in mind that this claimant does have a history of on one occasion failing to respond to bail and on another of not complying with conditions imposed by a court.  However I weigh against that consideration that this is a man who ‑ although not receiving medical treatment at the moment ‑ is well aware of his need for his medical condition to be reviewed regularly.  That is a significant factor weighing against the risk of his absconding in this case.  
27.	I was initially attracted by the possibility of adjourning this matter for 21 days in order that the outcome of the meeting of 28 January 2009 could be considered by the court.  However it became clear that this is not a specific assessment arranged with the High Commission in respect of Mr Adewale.  There is no more than a hope that he will be able to be interviewed on that occasion.  There is no information before me on which I could conclude that there is a real prospect that the matter will then be brought to a speedy conclusion.  On the contrary, all the indications are that matters are now less advanced than they were on 30 January 2008.  
28.	Mr Thomann, in his submissions, has been able to do no more than express a hope that the matter may be resolved as a result of what may occur on 28 January 2009.  In these circumstances I have come to the conclusion ‑ weighing all these factors as best I can in accordance with the principles set out in Hardial Singh ‑ that there is so little prospect of anything being achieved in the immediate future that the continued detention beyond this point of Mr Adewale would be unlawful.  In those circumstances I propose to admit him to bail.  I will do so only on the most stringent conditions because of risk of absconding and further offences.  
29.	I will hear counsel in relation to those conditions.  It may not be possible to deal with those matters today. 
30.	MR DENHOLM:  I am instructed that solicitors are checking with the office to see if there is any further word from NASS on the bail address.  You have had my submission already.
31.	MR JUSTICE LLOYD JONES:  My present view is that there will be a residence condition; there will be a tagging condition; there will be a reporting condition and there will be a curfew. 
32.	MR DENHOLM:  I am entirely in your hands.  I will not seek to persuade you from the curfew.
33.	MR JUSTICE LLOYD JONES:  I cannot go any further because at this stage no one can tell me about the condition ‑ ‑ ‑ ‑ ‑ 
34.	MR DENHOLM:  One option might be to order release on bail within seven days on whatever conditions you see fit subject ‑ ‑ ‑ ‑ ‑ 
35.	MR JUSTICE LLOYD JONES:  What I am minded to do is to give liberty to apply to me.  I am sitting this week.
36.	MR DENHOLM:  Would you like us to come back to your Lordship once we know the address.
37.	MR JUSTICE LLOYD JONES:  Yes.
38.	MR DENHOLM:  There is no objection to that.  The other issues in the case so far as they arise at all remain open.  There are still questions about past unlawfulness.  There may still be issues in relation to policy at appeal ‑ ‑ ‑ ‑ ‑
39.	MR JUSTICE LLOYD JONES:  Those are not matters for me today. 
40.	MR DENHOLM:  No.  There has been nothing from the Secretary of State in relation to other matters in the case.  It may be appropriate for us to put in further submissions within 14 days.
41.	MR JUSTICE LLOYD JONES:  In relation to the points.
42.	MR DENHOLM:  In relation to any outstanding points ‑ past unlawfulness.
43.	MR JUSTICE LLOYD JONES:  I do not think there is any point in  
doing it before the application is decided.
44.	MR DENHOLM:  Indeed, yes.
45.	MR THOMANN:  It may be in due course my friend should have permission to amend his grounds and for me to have to agree to provide an acknowledgement of service.  As to when that is, I am in your hands.  I do not know if there is any knowledge about how the application is progressing. 
46.	MR JUSTICE LLOYD JONES:  I have no better knowledge than anyone else has.
47.	MR THOMANN:  I wonder about the listing in the next week if there is a time waiting ‑ ‑ ‑ ‑ ‑
48.	MR DENHOLM:  As far as the application has been made to the Court of Appeal it will ‑ ‑ ‑ ‑ ‑ 
49.	MR JUSTICE LLOYD JONES:  Do you want to amend at this stage and press on?
50.	MR DENHOLM:  In many ways our case turns more on whether the Hardial Singh point avails us further back than today.  I would seek permission to amend within 21 days.  I would also seek our costs of today as well.
51.	MR JUSTICE LLOYD JONES:  I will say I am going to admit him to bail on conditions and give leave to apply in relation to those conditions.  I will hear you any day this week.  I am away about Tuesday midday next week   I will not be available after that next week.  You shall have 21 days within which to amend the claim form and grounds.  How long do you want to respond?
52.	MR THOMANN:  If I could have 21 days too.
53.	MR JUSTICE LLOYD JONES:  21 days to lodge acknowledgement of service and ‑ ‑ ‑ ‑ ‑ 
54.	MR THOMANN:  I cannot resist the costs aspect.
55.	MR JUSTICE LLOYD JONES:  Are you asking me for summary assessment? 
56.	MR DENHOLM:  I am not. 
57.	MR JUSTICE LLOYD JONES:  I will say that the defendant to pay costs of and occasioned by the application, to be assessed if not agreed.

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