QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the Application of
Mowleed Mohammed Hussein
|- and -
|The Secretary of State for the Home Department
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Mr Alan Payne (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 15/6/09 19/6/09
Crown Copyright ©
Mr Justice Sales:
"(4) On an application for judicial review the High Court may award damages to the applicant if
(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and
(b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages."
The Secretary of State's policy
"Chapter 38 Detention and Temporary Release
In the 1998 White Paper "Fairer, Faster and Firmer A Modern Approach to Immigration and Asylum" the Government made it clear the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention (see 38.20 and chapter 39). The White Paper went on to say that detention would most usually be appropriate:
- to effect removal;
- initially to establish a person's identity or basis of claim; or
- where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.
Use of detention
In all cases detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable.
The routine use of prison accommodation to hold detainees ended in January 2002 in line with the Government's strategy of detaining in dedicated removal centres. Nevertheless, the Government also made clear that it will always be necessary to hold small numbers of individual detainees in prison for reasons of security and control.
38.1.1. Implied Limitations on the Statutory Powers to Detain
In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and ECHR case law. Detention must also be in accordance with the Government's stated policy on the use of detention.
38.3 Factors influencing a decision to detain (excluding pre-decision fast track cases)
1. There is a presumption in favour of temporary admission or temporary release.
2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3. All reasonable alternatives to detention must be considered before detention is authorised.
4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
5. Each case must be considered on its individual merits.
38.10.1 Criteria for detention in prison
Immigration detainees should only be held in prison establishments when they present specific risk factors that indicate they are unsuitable for immigration removal centres, for reasons of security or control. Immigration detainees will only normally be held in prison accommodation in the following circumstances:
- national security where there is specific (verified) information that a person is a member of a terrorist group or has been engaged in terrorist activities
- criminality those detainees who have completed prison sentences of four years or more, have been involved in the importation of Class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the sex offenders' register
- security where the detainee has escaped or attempted to escape from police, prison or immigration custody, or planned or assisted others to do so
- control engagement in serious disorder, arson, violence or damage, or planning or assisting others to so engage."
The Prison Rules 1999
"Unconvicted prisoners shall under no circumstances be required to share a cell with a convicted prisoner."
"As to one offence of robbery, the appellant on his own admission admits that it involved the use of an imitation firearm. Whether or not it was a cigarette lighter and could not actually be fired is only a limited mitigating factor. Such attacks are frightening for the victim and is in my view quite rightly considered a serious offence. As to his second offence of robbery I cannot accept his explanation that all it involved was being part of a fight on a train. The matter was tried before a judge and jury and he was found guilty. I accept that it took place on a train. It was therefore a robbery on a train or possibly an attempted robbery, it matters not which. As such it again is a serious matter. Furthermore his explanation [of the offence of possessing a blade in a public place] that his blade was simply a kitchen knife is not in my view a persuasive mitigation. He himself admitted it was kept in his sock. It demonstrates to me an ability to seek to explain away matters which are in fact serious with superficially innocuous explanations. The fact that his most recent offences were for a burglary and a theft indicates the continuing approach to crime and one I consider significant."
" detention is only used where there is no reasonable alternative available and there is reason to believe that you would not comply with any restrictions attached to your release.
It has been decided that you should remain in detention because:
You are likely to abscond if given temporary admission or release.
There is insufficient reliable information to decide whether to grant you temporary admission or release.
The decision to detain you has been reached on the basis of the following factors:
You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place.
You were of no fixed abode on your arrival in prison.
You have little incentive to remain in touch.
Removal could be within a reasonable timescale should you not decide to appeal.
In reaching this decision Articles 5 and 8 of the European Convention on Human Rights have been taken into account. Article 5 states that a person may be arrested or detained to prevent them effecting an unauthorised entry into the country or where action is being taken against them with a view to deportation or extradition. You are the subject of deportation action. It is therefore considered that there is a legitimate aim in maintaining your detention. It is also considered when taking into account all the known facts of your case that detention is proportionate to a social need being fulfilled and that it is necessary for the prevention of disorder and crime and is in the wider interest of the maintenance of an effective immigration policy.
It has also been considered whether your right to respect for private and family life will be breached if you remain in detention.
You have not submitted evidence of any relationships in the United Kingdom considered to be of sufficient proximity to give rise to private/family life for the purposes of Article 8(2).
In considering whether private life exists you have not submitted any evidence of your private life here. It is not known if you own property here. You have had no known employment. Whilst it is accepted that during your time in the United Kingdom you may have established a private life it is the view that interference can be justified in the circumstances of this case.
In reaching this decision your rights have been balanced against the wider rights and freedom of others and the general public interest. The extent of your possible private/family life has been weighed against your criminal convictions. It is considered that our actions are proportional to a social need being fulfilled and it is not accepted that the decision to maintain your detention would breach Article 8.
Your detention will be reviewed on a regular basis."
The feasibility of returns to Somaliland
The immigration detention of the Claimant
(1) On 7 February 2005 he was interviewed, but gave minimal details in response to questions. In particular he did not give his mother's full names, though it appears from the previous witness statement of his dated 16 August 2004 in his immigration appeal that he was aware of them (the name given there is Maryam Adi Amin, although that should be compared with a witness statement she made dated 31 August 2008 giving her name as Hali Abdi Amin); there was also a discrepancy between the name he gave for his father on the form and in his witness statement (respectively, Mohammed Hussein Said and Mohammed Hussein Sicid). The Claimant also refused to sign the form;
(2) On 18 May 2005 there was a further attempt to interview to the Claimant, but he did not co-operate. He refused to sign a disclaimer form (i.e. to indicate he was prepared to co-operate in his voluntary return to Somaliland and to assist in obtaining an EU travel document which would facilitate his removal);
(3) The Claimant's refusal to sign such a disclaimer form was a continuing impediment to effecting the removal of the Claimant, as he knew. He was given a note dated 24 September 2005 informing him that his deportation appeal had been dismissed, and that the Secretary of State was continuing to seek to make arrangements to remove him, which stated "However this is taking longer than we would like because you have not informed us of whether you intend to sign a disclaimer". A similar note was given to him dated 30 March 2006. The Claimant did not offer to sign a disclaimer in response to these or any other notes sent to him;
(4) On 15 February 2006 the Claimant was interviewed and provided some information which was set out in the bio-data form, which on this occasion he signed. But this time he did not supply his mother's full name nor that of his father (as compared with what he had said in his witness statement of 14 August 2004); nor did he identify his father's place of birth as Hargeisa (even though that had been set out in the previous bio-data form drawn up from information supplied by him);
(5) On 31 March 2006 the Claimant was interviewed by Gemma Sturgeon, an immigration official. He told her that he would not co-operate because he had already completed a bio-data form (i.e. on 15 February 2006); according to her note of the meeting and a later signed statement from her, when Ms Sturgeon told him that that form did not contain sufficient information he "got up and walked out of the room". As a result the Claimant was served with an IS 35 notice warning that he could be prosecuted for non-compliance in answering questions (i.e. under s. 35 of the Asylum and Immigration Act 2004);
(6) On about 20 April 2006 the Claimant was interviewed by another immigration official, Bob Phee. The Claimant refused to sign the disclaimer form and stated that he did not wish to return to Somaliland. According to the note of the interview made by Mr Phee shortly afterwards, when the Claimant complained about his detention Mr Phee explained that the reason for it was his non-co-operation in relation to the required travel document, at which the Claimant "started to rant that he would not co-operate with the immigration service anymore"; Mr Phee told him that he had answered all of the questions he had put in his application for review of his detention, and "He then stormed out of the room." As a result, Mr Phee recommended that the Claimant should be prosecuted for non-compliance (in the event, this suggestion was not pursued). This interview resulted in another note to the Claimant, dated 2 May 2006, which stated: "We are continuing to make arrangements to obtain a travel document for your removal from the United Kingdom. On 20 April 2006 you refused to co-operate with documentation. By not co-operating it is viewed as a deliberate attempt to thwart the removal process. To avoid prolonged detention, you are advised to sign the attached disclaimer." The Claimant did not do so; nor did he reply to this or any other note to dispute the claim that he had been uncooperative;
(7) A note to the Claimant in similar terms was sent on 1 July 2006. This note added that his continued refusal to co-operate was viewed as a deliberate attempt to thwart the removal process, and stated that continued failure to co-operate could lead to his being prosecuted under s. 35 of the Asylum and Immigration Act 2004. A contemporaneous internal note made the fair comment, "He is determined that he will not be removed to Somalia and has no wish to sign a disclaimer for voluntary removal to Somalia. Various interviews with the subject have resulted in either him walking out or being aggressive and abusive";
(8) On 13 July 2006 the Claimant was interviewed by Bernadette Downey, an administrative officer at Dover IRC. According to a statement that Ms Downey prepared later, the Claimant asked her why he was regarded as not complying, and she replied that he had walked out of the interview at Colnbrook IRC on 5 April 2006 (this was probably a reference to his interview with Mr Phee). The Claimant responded that that was Colnbrook, but he was now at Dover, and indicated that he was now willing to sign the disclaimer. But when she met him later in the day to present the disclaimer to him for signature, he refused to sign, saying that he had spoken to his legal representatives who were making an application to the European Court of Human Rights on his behalf (see paras.  and  above);
(9) On 31 July 2006 another note was sent to him in terms similar to that of 1 July 2006. It failed to produce any co-operation from the Claimant;
(10) When the official from Somaliland attended Colnbrook IRC on about 25 October 2006 (see para.  above), no effective interview could be arranged with the Claimant, because of the dearth of information he had provided;
(11) In a monthly progress report dated 18 January 2007 sent to the Claimant it was stated "The current barrier to your removal is your non-compliance with the Immigration Service". The Claimant did not respond to offer his co-operation;
(12) A further monthly progress report dated 3 May 2007 repeated the point, stating that the current barrier to the Claimant's removal was that he had "consistently refused to co-operate with the documentation process"; it went on, "We are continuing to make arrangements to obtain a travel document for your removal from the United Kingdom. However, this is taking longer than we would like because you have refused to be interviewed by the Immigration Service authorities. If you wish to assist us in progressing your case, and potentially reducing the time you spend in detention prior to removal, please speak to one of the Immigration Officers at the Removal Centre". This seems to have produced some result, in that the Claimant was interviewed again on 6 May 2007, at which time he was assessed as being annoyed but compliant; he said would complete the bio-data form again. This time he stated that his last address in Hargeisa was in a town called Lanta; this was information which he had not proffered previously, and hence supports the impression that he had failed previously to co-operate as fully as he could;
(13) On 8 May 2007 the Claimant's claim in these judicial review proceedings for an interim order directing his release came before Collins J in the Administrative Court. The Secretary of State, through Mr Payne, conceded permission. Collins J declined to make the interim order sought. Mr Payne indicated that the Secretary of State proposed to write to the Claimant setting out the information he sought, including from the Claimant's family, and Collins J indicated that that would be a good idea. There was no express acceptance in court by Counsel for the Claimant that he would co-operate in that process, but with the support of the learned judge behind the proposal the Secretary of State could reasonably think that it might be an approach which would bear fruit. A letter setting out the information sought was sent on 14 May 2007, and Ms Tanna for the Claimant went to some lengths to seek to obtain answers both from the Claimant and from family members, which she set out in a witness statement dated 25 May 2007 (see paras. ff below). She was able to add some information to what had been supplied before, in particular identifying his clan as the Gadabursy clan. The Claimant also agreed to be interviewed again, which took place on about 29 May 2007. He filled out another bio-data form and signed it. There were still discrepancies between the names he gave for his mother and father ("Male Abdi Amin", "Mohammed Hussein") and those given on previous forms and in his witness statement of 14 August 2004, and now the Claimant put his place of birth "Not known" (rather than Hargeisa, as he had stated before) so it was difficult to conclude, even now, that the Claimant was being fully co-operative. On this occasion he also identified his clan as the Gadabursy clan, claiming that his brother told him what clan he belonged to. This information must have been easy for him to obtain at all times: see paras. - below. Its provision at this point supports the view that previously he had not been co-operating as fully as he could have done, but suggests that he was making some effort to be more candid at this stage.
The Statutory Framework
"(2) Where notice has been given to a person in accordance with regulations under [section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision)] of a decision to make a deportation order against him and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(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)."
The basis of the Claimant's claim for damages for false imprisonment and declaratory relief
(1) She relies upon the principles articulated by Woolf J in R v Governor of Durham Prison, ex p. Hardial Singh  1 WLR 704 to submit that throughout the Claimant's immigration detention there was no reasonable prospect of his removal to Somaliland, so that his detention under the power contained in Schedule 3 to the 1971 Act was unlawful throughout;
(2) In the alternative, again relying on the principles in Hardial Singh, she says that at some point the immigration detention of the Claimant became unreasonably long and hence unlawful;
(3) Finally, she submits that the Claimant's detention was unlawful because the Secretary of State failed to comply with his policy as set out in the OEM: (i) the Claimant was not detained for the shortest period of time which was necessary in his case; and (ii) reasonable alternatives to detention were not explored and pursued, namely release with hard cases support for the Claimant in the community from NASS and/or electronic tagging, so as to reduce the risk of the Claimant re-offending or absconding.
Ground (1): there was never any realistic prospect of removal of the Claimant
Ground (2): the detention of the Claimant was unreasonably long
"Under Schedule 3 to the Immigration Act 1971 the Secretary of State has the power to detain an individual who is the subject of a decision to make a deportation order, under paragraph 2(2) of the Schedule, pending the making of the deportation order. That power requires the person to be detained under paragraph 2(3) after the making of a deportation order and pending the removal of the person from the United Kingdom. Since 20 July 1983, the applicant has been detained under the power contained in paragraph 2(3) of Schedule 3 to the Immigration Action 1971. 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, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, 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 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 addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. In this connection I have been referred to two authorities which give some assistance "
"62. Whilst it is a necessary condition to the lawfulness for Mr. Youssef's detention that the Home Secretary should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to [be] judged is the Wednesday standard. I say this both because I can find nothing in the judgement of Woolf J. in Hardial Singh that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision-maker as to the reasonableness of the executive's actions, unless there are compelling reasons to the contrary, which I do not think there are. Accordingly, I hold that the reasonableness of the Home Secretary's view that there was a real prospect of being able to remove Mr. Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision-maker, just as it will be the court as primary decision-maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to effect a lawful return are taken in a reasonable time.
63. It follows that I respectfully disagree with the approach taken by Sullivan J. and apparently also by Andrew Collins J; and I do so in the realisation that if the challenge is not to the lawfulness of detention but to the decision to remove or deport, it will be by judicial review and the reasonableness of the Home Secretary's view will indeed be assessed on Wednesday principles. In most false imprisonment and habeas corpus proceedings the difference between the two approaches is likely to be more apparent than real because when applying the approach I hold to be the correct one, the court ought in my opinion to have regard to all the circumstances and in doing so should make allowance for the way that government functions and be slow to second-guess the Executive's assessment of diplomatic negotiations. However, there may be cases, albeit few in number, where the liberty of the subject will depend on which approach is applied."
(See also A (Somalia) at  per Toulson LJ, with whose judgment Longmore LJ agreed).
" there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."
"54. 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.
55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
"58. The period of A's detention after he would otherwise have been entitled to release at the end of his custodial sentence was lengthy. However, throughout that period it would have been possible for him to be transported to Somalia, if he had not refused to go, and there was moreover some prospect of the Home Secretary being able to carry out his enforced removal, although there was no way of predicting with confidence when this might be. In the meantime, on the judge's findings, the risk of A absconding if he were at liberty was as high as it could be. There was also a high risk of him re-offending, and, given the nature of his previous offending, this would have been a very worrying prospect. For the reasons already given, it was in my view wrong in principle to offset against those factors A's reasons for not wishing to return to Somalia. These were irrelevant to the lawfulness of his detention in circumstances where his return would not have involved a breach of the Refugee Convention or the European Convention. I accept also the argument on behalf of the Home Secretary that the misleading statement made by Home Office officials, to which I have referred, cannot be said to have made A's detention unlawful.
59. I would hold that the period of A's detention, despite its length, was in the circumstances reasonably necessary for the purposes of the deportation order and so lawful. I would therefore allow the Home Secretary's appeal. "
"The combination of these two factors, namely a very high risk of absconding if released and a high risk of sexual re-offending, must be seen as justifying allowing the Secretary of State, in the words of Simon Brown LJ in R (I), "a substantially longer period of time within which to arrange the detainee's removal abroad" (paragraph 29). Whether the length of detention up to and including the "middle period" was nonetheless so long as to be unreasonable and thus unlawful is far from easy to determine. I recognize that it must be exceptional to regard lengthy administrative detention as lawful when there is some prospect of removal but no clearly predicted date for it. However, when one adds to the assessment the fact that this detainee could have returned voluntarily to Somalia but had refused to do so, it seems to me that the answer has to be that his continued detention was still reasonable. He had it in his own hands to secure his release from detention by choosing to return voluntarily."
"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 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."
Ground (3): detention in breach of the Secretary of State's policy in the OEM
Alleged breach of the Prison Rules