England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		20th April 2010

MR JUSTICE HICKINBOTTOM:

1. The claimant, Ismael Abdi Mohamed, was born in Hargeisa, Somaliland on 21 April 1982. Following difficulties during the Somali civil war, his mother, Mrs Farah Elmi Godle, fled to another part of the country and thence to the United Kingdom where she was recognised as a refugee whilst the claimant, then aged about seven years, and other family members fled to the Daroor refugee camp in Addis Ababa, Ethiopia. In August 1992, when aged about 10 years, the claimant with his father and four siblings was granted leave to enter the United Kingdom under the Family Reunion Policy to join his mother. He was granted indefinite leave to remain in November 1999. He has not been back to Somaliland since he left.
2. Whilst in the United Kingdom the claimant has persistently offended, his record including the following:

10 March 1997: two burglaries, one whilst on bail, and assault occasioning actual bodily harm (aggregate sentence 12 months supervision order)

28 July 1998: burglary (a fine)

17 November 1998: burglary (100 hours community service)

13 July 1999: theft and possession of a controlled drug class B (3 months young offender institution)

2 November 1999: handling stolen goods (4 months young offenders institution)

24 November 2000: robbery (2 years' imprisonment)

23 July 2002: robbery whilst on bail (3 years' imprisonment)

30 July 2002: theft whilst on bail (6 months' imprisonment)

5 February 2002: failure to surrender (a fine)

3 November 2004: obstructing the police (15 days' imprisonment)

1 July 2005: assault of a police officer (6 months' imprisonment), possession of a class C drug (2 months' imprisonment), and failure to surrender (2 months' imprisonment)

16 December 2005: robbery (3½ years' imprisonment)

22 February 2006: burglary and assaulting a police officer (2½ years' imprisonment, concurrent with the 3½ years' imprisonment imposed in December 2005

7 June 2006: theft (6 months' imprisonment).

3. For reasons to which I shall shortly come, the claimant has been detained in one form or another since being sent to prison in 2006.
4. I do not have particulars of all of the offences to which I have referred, but one of the most serious was the robbery for which he was sentenced in December 2005. That was a planned and targeted robbery of a 71-year-old disabled man by the claimant and another man, during which the victim was threatened with a weapon in the form of a pen.
5. One of his probation reports indicates that during the course of his offending the claimant used 27 different aliases and gave 16 different dates of birth. The Probation Service (now the National Offender Management Service), has assessed him as being "MAPPA 2", i.e. at level 2 of the Multi-Agency Public Protection Arrangements; in other words, he has been assessed as posing a high risk of causing serious harm, if released into the community. He has also been assessed as posing a risk to females as a result of his conduct in custody. He is also noted as having been aggressive whilst in custody, and indeed dishonest, stealing from his fellow prisoners.
6. As a result of his offending, on 27 June 2007, whilst the claimant was still serving his last custodial sentence, the Secretary of State made a decision to deport him. The custodial part of his sentence in fact expired two days later on 29 June 2007, but he continued thereafter to be detained under the Immigration Act. On 29 December 2007, his custodial sentence license period ended, but he continued in immigration detention. His appeal against the decision to deport was refused by the Asylum and Immigration Tribunal on 10 December 2007, and reconsideration was refused on 2 January 2008. A deportation order was made on 12 February 2008, and served upon him three days later.
7. The tribunal has refused applications for bail on five occasions since, most recently on 25 March 2010, and the claimant remains in detention. He has now been in immigration detention for 34 months. Because of his risk to the public he has remained in prison estate rather than being removed to a detention centre, and his aggression and dishonesty towards other prisoners have resulted in him being the subject of frequent moves within that estate, as I understand it, for his own safety.
8. In this application for judicial review, brought with the permission of His Honour Judge Pelling QC sitting as a Deputy High Court Judge, the claimant challenges the decision to continue to detain him as being in breach of Article 5 of the European Convention on Human Rights.
9. The relevant legal framework for this application is uncontentious. Article 5 of the European Convention, so far as relevant to this case, provides:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

10. Paragraph 2 of Schedule 3 to the Immigration Act 1971 provides:

"(1) Where a recommendation for deportation made by a court is in force in respect of any person and that person is not detained in pursuance of the sentence or order of any court, he shall… be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

…

(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)."

"Pending" simply means "until": but the detention must of course be and remain for the purposes of deportation by way of removal.

11. The correct approach to detention pending deportation has been considered in a number of cases, including R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and A v Secretary of state for the Home Department [2005] 2 AC 68, the principles from which were summarised by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Deaprtment [2002] EWCA Civ 888 in a much-cited passage at [46]-[48], as follows:

"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Hardial Singh [1984] 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 [1997] 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 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."

12. In I, Dyson LJ considered that the applicant/appellant ought to be released because "by 29 May 2002 [he] had been in detention for an unreasonable period". Simon Brown LJ (as he then was) also considered the applicant ought to be released, because he considered the crucial issue was whether it was going to be possible to remove the appellant within a reasonable time having regard to the period already spent in detention. In relation to past time, if delay is caused by the applicant's own lack of cooperation then that is a relevant - perhaps a highly relevant - factor, although not necessarily determinative: Chen v Secretary of State for the Home Department [2002] EWHC 2797 (Admin) and R (FR) Iran v Secretary of State for the Home Department [2009] EWHC 2094 (Admin). The fact that an applicant may abscond or reoffend may also be relevant, as identified by Dyson LJ, because it might amount to good justification for allowing the Secretary of State "a substantially longer period within of time within which to arrange the detainee's removal abroad" (I at [29] per Simon Brown LJ; and also see FR (Iran) at [20]-[21] per Foskett J). However, even where there is a history of offending and there is a high risk of reoffending and/or absconding, nevertheless there may still be circumstances in which Article 5 requires a deportee's release: see, for example, R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin).
13. In a case where the court holds that the time spent to date is not in itself unreasonable, whilst of course the time already spent in detention is a relevant factor because the relevant authorities are bound to conduct the process with due expedition, as Simon Brown LJ in I identified, what is crucial is whether there is a reasonable prospect of the Secretary of State removing the applicant within a reasonable time. Where there is no such prospect then detention becomes arbitrary and consequently unlawful under Article 5. Whilst, as Dyson LJ makes clear, it may be that sheer length of the period of detention may at some point render that detention unlawful, that is a consistent theme through the authorities to which I was referred. By way of example only, whilst in R (Bashir) v Secretary of State for the Home Department [2007 EWHC 3017 (Admin), Mitting J (at [21]) indicated that 23 months' detention "on any view must be at or near to the top of the period during which detention can lawfully occur", in his view "of great significance" was the fact that there was no evidence before him upon which he could conclude that the suspension of flights to Baghdad relevant in that case would end in the foreseeable future. As the same judge said in R (A, MA, B and ME) v Secretary of State for the Home Department [2008] EWHC 142 (Admin) at [16]:

"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?"

That appears to me to identify the correct focus for the court in cases of this type. The burden of showing that there is a reasonable prospect of removing a deportee within a reasonable time of course falls on the Secretary of State.

14. In this case, as I have said, the claimant has been detained under the Immigration Act for 34 months.
15. For much of that time the claimant has not cooperated with the UK Border Agency in providing information about himself that the Somali government require properly to consider whether he is indeed a Somali national and whether an emergency travel document should be granted to him. During 2007, 2008 and most of 2009, despite interviews, he refused to provide all of the required data about himself and to complete the relevant Somaliland screening form. To refuse to cooperate is a criminal offence, and he was served with a formal request to cooperate in March 2009: but he still had refused to do so. It is difficult to conclude other than that he was deliberately refusing to cooperate to avoid removal.
16. During the period of his detention the detention has been the subject of regular monthly reviews, all of which are fully recorded. On each occasion his continued detention has been found to be justified because of continuing efforts to remove him, and the risk of reoffending and absconding if he were to be released. As I have said, he has made five applications to the tribunal for bail, most recently on 15 March of this year, all of which have been refused on that basis.
17. In about June 2009, UKBA approached the claimant's mother and sister and obtained some information about him from them. On the basis of it, they sent a screening form to the Somali authorities on 18 July 2009 regarding his "contact details". The "contact person" was given as "Farah Elmi Godle", i.e. his mother, whom they had just seen. Her address was, curiously, given as "the 26th of June", and her location simply "Hargeisa". In fact, as UKBA well knew, she actually lived in Southall, Middlesex. That form also had attached his father's original visa application in respect of which the claimant entered the United Kingdom as an accompanying child. However, in the detention review on 21 July it is frankly recorded that "At the moment we do not have sufficient information to persuade the Somali authorities to remove the subject there". There is no evidence before me of any response of the Somali authorities to that particular request, nor to the request being chased through (e.g.) the British Embassy in Addis Ababa.
18. It was not until as recently as 2 December 2009 that the claimant indicated that he would be prepared to cooperate if he could be transferred to an immigration removal centre. He has remained in prison because of his risk to the public and his disruptive behaviour, as I have described.
19. On 15 December, he did provide further data. Whilst much of that had been obtained before, the new screening form had his fingerprints associated to his other data and he signed the form. That information was passed onto the Somali authorities on 29 January 2010 and, because that set was apparently not received, resent on 8 February 2010.
20. The evidence of Emma Dilger, a senior executive officer of the UKBA, is that such data should have been sufficient for full identity checks to be undertaken by the Somali authorities, and once they had confirmed the claimant's Somali origin she considered that removal should follow shortly afterwards (statement, 19 February 2010, paragraph 4).
21. The Somali government responded by email on 15 March to the effect that they were in the process of tracing "Farah Elmi Godle, 26 June location Hargeisa"; that is, the contact details given in the July 2009 screening form. Of course, as I have said, that form was incorrect to suggest that the claimant had such a contact in Somaliland, the person identified being the claimant's mother who lived in Middlesex. The Somali authorities were apparently attempting to find someone in Hargeisa who was not there and had not been there for 20 years.
22. Miss Plimmer's skeleton argument was drafted on the basis that the 15 March 2010 email was the last word. She submitted on behalf of the claimant that that represented an impasse and, since 15 March 2010, the claimant's detention had been unlawful because there was no realistic possibility that any further information on the claimant concerning his bio-data would become available and the Somali authorities had effectively indicated that the information that had been provided was not good enough for them to accept that the claimant was a Somali. They were looking for a family or clan contact in Somaliland, and the claimant had none.
23. However, today, further email exchanges between the Somali authorities and the British Embassy in Addis Ababa have been produced which show:

(1) Somaliland are willing to accept returns although on the basis of restricted numbers at present. They appear to have agreed that they would accept eight returnees now or in the immediate future.

(2) The claimant was not on the list of eight as at 5 April 2010, but the United Kingdom government have asked that his case be prioritised so that he is the top priority for return to Somaliland. The Somali Government appear to be concerned about total numbers, rather than the particular identity of individual returnees.

(3) On 14 April, the British Embassy indicated that the claimant was the United Kingdom Government's top priority, and they asked whether he could be returned to Somaliland immediately. They asked for the Somali authorities to confirm acceptance of the claimant's identity at their earliest convenience. The Somali government responded the same day to say that they "thoroughly comprehended United Kingdom Government's priority", and the Minister himself had been consulted. They continued:

"We have a number of questions about this young man: how long has he been in the United Kingdom, what sort of crime he has committed etc. Please give us a hint about this case."

(4) Mr Karim for the Secretary of State did not know of any response from the Embassy to that email as yet: but, of course, UKBA have the information that has been requested readily to hand.

24. Miss Plimmer for the claimant conceded that the only barrier to deporting the claimant has been and continues to be the absence of a travel document, and for this the consent or approval of the Somali authorities is necessary (skeleton argument, paragraph 7). In her skeleton argument, she properly accepted that until December 2009 much of the delay resulted from the claimant's own failure to cooperate, and she made no real complaint about the unlawful detention during the period of non-compliance (skeleton argument paragraph 36); but (she there submitted) there was now no serious avenue for supplementing the information that has already been provided to the Somali government. That was of course based upon the position as she saw it as at 15 March, but she frankly accepted before me today that that was now not the case. However, she submitted that in all of the circumstances the Secretary of State had failed to show that there was a reasonable prospect of obtaining the Somali government's approval to accept the claimant and hence of deporting him. She did not submit in her skeleton argument (nor before me) that this was a case in which past delay amounted to unreasonable time in itself.
25. Those submissions were well and cogently put: but, after very careful consideration, I am not persuaded by them. In coming to the view that there is such a prospect, I have particularly taken into account the following factors.
26. First, the length of time that the claimant has already been in detention, namely 34 months. That, on any view, is a long time. However, as I have described, until about five months ago the claimant failed properly to cooperate with the United Kingdom authorities, and has consequently been to a considerable extent the author of that delay. That is not a conclusive factor - but it is certainly a relevant one.
27. Because these cases are quintessentially fact specific, reference to other authorities is necessarily of limited value in considering the weight to be given to particular factors. However, I was referred to R (Abdilahi) v Secretary of State for the Home Department [2010] EWHC 808 (Admin) in which the applicant had been in detention for 30 months and the judge, Sir Michael Harrison, found that there was no reasonable prospect of deporting him within a reasonable time. But in that case the applicant had an outstanding application to the European Court on Human Rights which would, the judge found, likely take the time to 4-4½ years, with a considerable amount of uncertainty even as to that. That case, it seems to me, simply underscores the fact that each case depends upon its own facts and all relevant factors, including the length of time that an applicant has already been in detention, need to be taken into account. However, the judge in that case did not appear to consider that, in the circumstances of that case, the past time of 30 mths alone made the continued detention unreasonable.
28. Miss Plimmer also prayed in aid the length of time it took for the Secretary of State to prioritise the case with the Somali authorities. I did not consider that that specific submission had significant force. The Somali authorities appear to wish to have returns done gradually, and the priorities so far as the United Kingdom are concerned are, first, a matter for the United Kingdom government, and, second, liable to change regularly as circumstances with the Somali government and individual cases change.
29. She also relied upon the failure of the UKBA to attend the claimant's mother and sister sooner and there appears to me to be some merit in that as a factor.
30. Secondly, obstacles in the path of deportation. The only outstanding matter is, as I have indicated, the emergency travel document, or rather the Somali Government approval or consent that will enable such a document to be prepared and acted upon. The recent email to which I have referred (i.e. the Somali Government's email of 15 April 2010) does not suggest that there is any information that the Somali authorities require that cannot simply be sent to them; nor does it suggest that the Somali authorities are being deliberately unhelpful or equivocal. They responded to the 15 April email from the British Embassy the same day.
31. This factor concerning obstacles in the path of deportation appears to me to be a factor of a potentially significant weight. If there is a genuine impasse, then the Secretary of State simply could not defend a decision to continue to detain because continued detention would not be for the purposes of deportation and would be truly arbitrary, whatever the risk of absconding and/or reoffending might be; indeed, that was the real force behind Miss Plimmer's submissions, before the recent inter-Government communications. But I am satisfied that, in this case, on the basis of the recent emails, there is no such impasse: and indeed the United Kingdom government (including of course the defendant, the Secretary of State) are taking active and positive steps towards the claimant's deportation, and with some success and some continuing progress. Again, that is not necessarily a conclusive factor because as Dyson LJ identified, what has happened in the past is also a factor to be taken into account; but nevertheless, as I say, it seems to me to be a factor of particular weight.
32. Third, diligence speed and effectiveness of the steps taken by the Secretary of State towards deportation. Miss Plimmer referred to a number of particular matters which she submitted showed that the Secretary of State had been less than reasonably diligent, speedy and effective in deporting the claimant:

(i) the error in the July 2009 screening document which resulted in the Somali authorities apparently conducting enquiries that were never going to be fruitful;

(ii) the fact that the UKBA did not interview the claimant's mother and sister for a period of two years until mid 2009 when they provided much but not all of the relevant information;

(iii) that there is no evidence that the Embassy in Addis Ababa chased the Somali authorities after the July 2009 request;

(iv) that the claimant's fingerprints were not used until December 2009, although they must have been available to the police authorities (although the counter-submission of Mr Karim - that they needed to be verified by the claimant himself - appears to me to have force);

(v) that a prosecution for non-cooperation with the authorities so far as bio-data are concerned was regularly considered by the UKBA, but not pursued: although it does seem to me that this factor matter is not forceful, because I find it difficult to see how the claimant can pray in aid a complaint about not being prosecuted. The Secretary of State has, as I understand it, taken the practical course of not seeking a prosecution in circumstances in which an applicant, albeit late in the day, complies and produces the necessary relevant bio-data.

33. In summary, it seems to me that the Secretary of State could have taken further or quicker steps than he did; but that does not mean that he failed to act reasonably. By far the greatest cause of the extensive delay in steps towards deportation lies at the claimant's door for failing to cooperate properly and fully with UKBA.
34. Fourth, the conditions in which the applicant is kept. He is being kept in prison, and not in a detention centre. That is a factor; but is one which in my view has little weight in this case, because he is in prison as a result of his own conduct and the risk to the public and other detainees which he poses, as well as the risk to himself if he were in immigration detention estate because of his criminal behaviour towards other detainees.
35. Fifth, the effect of his detention on himself and his family. The submission of Miss Plimmer was that, other than the obvious detrimental effect on any detainee and his family, there was no specific adverse effect on the claimant or his family in this case.
36. Sixth, the risk of absconding. I have set out the claimant's criminal record, from which it can be noted that he has on a number of occasions failed to produce himself when on bail, and on bail applications the tribunal have consistently found the risk of him absconding to be high, irrespective of any steps and conditions that may be imposed to reduce that risk. It seems to me that his risk of absconding if released is undoubtedly high.
37. Seventh, the risk of reoffending. He is, as I have said, assessed as MAPPA 2, i.e. there is a significant risk of him causing serious harm if released into the community. Whilst I accept that the offences which he has committed, serious as they are, are not of the worst kind, it seems to me that those who have assessed him if released to have a high risk of reoffending, and of serious harm if he does, have made a proper assessment.
38. Eighth, general material relating to returns to Somaliland. Miss Plimmer submitted that the unlikelihood of Somaliland accepting the claimant as a Somali is further supported by their general record for accepting or not accepting returnees. The Secretary of State has confirmed that since August 2007 there have been ten returnees to Somaliland, the last being, as I understand it, in August 2009. Since January 2009 there have been 21 referrals and just four returns, 17 referrals being outstanding (the Treasury Solicitor's letter of 1 April 2010). As I have said, the rate of acceptance of returnees has been slow but there is no evidence before me that Somaliland simply refuses to take returnees and the recent emails confirm that they do not refuse. Far from it. In R (Hussein) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), Sales J considered on the basis of apparently substantial evidence the general position with regard to returns to Somaliland. He concluded (in [39]) that there was not an impasse on returns to Somaliland, which corresponds with my conclusion on the basis of the more limited evidence which I have before me. The evidence before me is that Somaliland will take returnees and that the claimant is the very top priority of the United Kingdom government to return to that country.
39. Ninth, the regular reviews by the Secretary of State. As I have indicated, the Secretary of State has conducted regular monthly reviews, and in some detail. Each month a decision has been taken, and the continued detention of the claimant has recently been referred to the relevant section manager. Those documents show that the Secretary of State is rightly concerned about the time the claimant has been in detention. Whilst in some respects, as I have indicated, perhaps the Secretary of State may have acted more quickly, I accept that most of the delay until December 2009 was due to the claimant's own intransigence; and, since December 2009, in my judgment the Secretary of State has acted with reasonable speed, diligence and indeed endeavour.
40. Tenth and finally, as I have indicated, the claimant has made a number of applications for bail to the tribunal (i.e. the Asylum and Immigration Tribunal, and, since February of this year, the Immigration and Asylum Chamber of the First-Tier Tribunal), most recently on 25 March 2010. The tribunal is a specialist forum charged by Parliament to deal with immigration matters, including bail in the circumstances of this case. Of course, in considering whether to grant bail, the tribunal has to consider whether continued detention would be in breach of Article 5. Less than a month ago it considered that continued detention was not in breach of the claimant's human rights. Of course the evidence before the tribunal was less than the evidence before me, its reasons were short and continued detention can always be challenged by way of judicial review. However, given the statutory scheme and the statutory right of detainees to seek bail from the tribunal, where the tribunal concludes that continued detention will be lawful and not in breach of the detainee's human rights, that in my view is a decision worthy of considerable respect. This court should be cautious before coming to a different conclusion in relation to a matter that is essentially a matter of balancing competing factors, and one of some discretion. It certainly comes as some comfort to me that, in this case, I have come to the same conclusion as that reached by the tribunal.
41. Having considered all of those factors and balanced them together, the Secretary of State has satisfied me that despite the length of time of the claimant's detention he, the Secretary of State, has a reasonable prospect of deporting the claimant within a reasonable time. Of course, I can only make that decision on the basis of matters as they stand today, and on the evidence that I have seen. The claimant has been in detention for a long time, and, if the Secretary of State does not keep up his endeavours and/or if the Somali authorities show a disinclination to accept his return and reasonably promptly, the balance may change. It will then be open to the claimant to make a further application on the basis of the new circumstances, no doubt by way of application to the tribunal for bail in the first instance.
42. However, for the reasons I have given, I shall refuse this application for judicial review.