QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF HY
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Miss J Anderson (Instructed By The Treasury Solicitor) Appeared On Behalf Of The Defendant
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"The provisions of schedule 3 to this Act shall have effect with respect to ... the detention or control of persons in connection with deportation".
Sub paragraph 2 of paragraph 2 of that schedule states:
"Where notice has been given to a person in accordance with regulations ... of a decision to make a deportation order against him, he may be detained under the authority of the Secretary of State, pending the making of the deportation order"
And sub paragraph 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 ... "
The applicable legal principles
"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 affect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv) The Secretary of State should act with reasonable diligence and
expedition to affect the removal."
"I find that the arguments put forward in the acknowledgement of service are powerful, that the detention is not yet unlawful, notwithstanding the passage of 40 months. There is, on the defendant's case, still, within Khadir, some prospect of achieving removal of the defendant pursuant to his deportation order and failed asylum application, but there may come a time when this is not so, and the court will need to look at the facts of his case at the full hearing in some detail. In the light of my having this view of the case, on the evidence as it is at present, and by virtue of the claimant's 12 previous failed bail applications, it is not, in my judgment, appropriate to grant bail pending such a hearing."
"32. The true position, in my judgment, is this. 'pending' in paragraph 16 means no more than 'until'."
"The word is being used as a preposition not as an adjective. Paragraph 16 does not say that the removal must be pending, still less that it must be impending. So long as the Secretary of State remains intent upon removing the person, and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly, it may become unreasonable actually to detain the person pending a long delayed removal (ie throughout the whole period until removal is finally achievable) but that does not mean that the power has elapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21.
33. To my mind, the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot) nothing about its existence. True it is that, in Tan Te Lam  AC 97, the privy counsel concluded that the power itself had ceased to exist, but that was because there was simply no possibility of the Vietnamese government accepting the applicant's repatriation. It was effectively conceded that removal in that case was no longer achievable. Once that prospect had gone, detention could no longer be said to be pending removal. I acknowledge that, in the first passage of his judgment set out in paragraph 24 above, Lord Browne-Wilkinson, having correctly posed the question whether detention was 'pending removal', then used the expression 'if removal is not pending'. That, however, can only be a slip. He was clearly following Hardial Singh and no such error appears in Woolfe J's approach."
"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 diligent 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."
Factors relied upon by the Secretary of State
"A pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable period of time for attempting to bring about his removal or departure. The way I would put it is that 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 of the case, including the risk of absconding and the risk of danger to the public if he were at liberty."
"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, these 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.
"63. There is, similarly, no rule of our domestic law that precludes the application of a presumption in favour of detention pending deportation, subject of course to the limitations in Hardial Singh, none of which involves consideration of the risk of re-offending or absconding. Such risks are relevant to the reasonableness of the period during which it is lawful to detain an FNP, that is to say, to the continuation of detention (see A  EWCA Civ 854, paragraphs 54 and 55). However, the absence of risk does not, of itself, render detention unlawful."
"In our judgment, the fact that an FNP (a Foreign National Prisoner) is refusing to return voluntarily, or is refusing to cooperate in his return, for example by refusing to apply for an emergency travel document, as initially did WL, is relevant to the assessment of the legality of his continuing detention (see A). So is the fact that the period of detention has been increased, and his deportation postponed by his pursuit of appeals and judicial review proceedings seeking to challenge his deportation order or his application for asylum or leave to remain, particularly if his applications and appeals are obviously un-meritorious. In our judgment, as a matter of principle, an FNP cannot complain of prolongation of a detention if it is caused by his own conduct."
"I am not persuaded by Mr Griffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of the trump card. On this, I see the force of what was said by Dyson LJ in I at paragraph 52, namely the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released."
"The claimant is aware of the possibility of an assisted return to his home country with up to £3,000 available for resettlement. He declined to take up FRS on 13 December 2007. The claimant again declined to take up FRS on 30 May 2008, stating he did not wish to go back to Algeria. On 4 August 2008 he applied for FRS, his appeal rights being exhausted on 8 August 2008. He was interviewed by an immigration officer on 16 January 2009 where he stated he did wish to return to Algeria, and an application for a travel document was submitted to the Algerian Embassy on 9 February 2009. The claimant was interviewed for further evidence by an immigration officer on 17 February 2009 where he claimed he left Algerian for France when he was 15, and that his father was a policeman and their house was burnt down.
On 10th July 2009 the claimant was withdrawn from FRS in the light of the refusal of the Algerian Embassy to document him on the information provided to date."
Applications for an ETD
"They spoke for 20 minutes. From their information, the DZA authorities do not have any trace of the subject and do not believe he is a DZA national. The subject repeatedly said he was and gave family and city details. DZA suggested that he write a letter to the DZA authorities as this might help. The subject was concerned he had been detained for 22 months, and had completed 6 or 7 bio-data forms and spoken to the DZA authorities by telephone. He was upset if they say he was not from there but what could he do, and he said that he had some close family ties, a best friend and a cousin who was also a surety, they could give him a place to stay, an address was given in Boreham Wood."
The interview of December 2009
"The interview lasted approximately 12 minutes. The subject [that is the claimant] remained calm and polite throughout and appeared to be answering all questions asked of him. At the end of the interview I spoke to Mr Abidi at the Algerian Consulate, he stated Mr Y had given the same information as he had provided before and that this information had been checked and investigated in Algeria."
"Mr Y was very angry and frustrated. At the outcome of the interview he wanted to know what would happen next."
Events since the December interview
1) Conduct an interview with the claimant to introduce the officials with responsibility for his case and to question him in detail on inaccuracies in his previous documentation attempts;
2) Conduct detailed checks with other authorities into his movements before his arrival in the United Kingdom;
3) Use fingerprint checks to lease widely with groups such as Interpol to determine whether they can match the identification of the claimant overseas;
4) Interrogate UK databases, CID and CRS, for information linked to the addresses given by the claimant, such as [and an address is given in Highbury Hill] his home address in 2004;
5) Obtain a detailed copy of the RGDU file to ascertain exactly what has been submitted to the Algerian authorities to date;
6) Interrogate the UK databases, CID and CRS, for information linked to the surety address given by the claimant, an address in Oxford;
7) Interrogate the UK databases for information linked to the addresses given by C in NW2 in London;
8) Interrogate databases for information linked to Abdil Hamid at an address in Cleethorpes in North Lincolnshire;
9) Obtain wet prints of the subject and conduct urine analysis Eurodac checks
10) Through Interpol conduct specific criminal history checks in France and Spain, countries in which the claimant has stayed and has been present;
11) Collate all information given regarding names and addresses in Algeria, and follow up information submitted to the FCO for checks to be conducted in Algeria;
12) Get all documents written in Arabic translated;
13) Senior investigator to liaise with FCO to ascertain the likely conclusion date of their checks and press the case."
It is then said that these actions are already under way and will be "actively pursued to achieve results at the earliest date."
"The essential matter is to ask whether continued detention can be justified if there are available conditions of release which will provide a proportionate measure of security against a risk of absconding, which is the central risk in this case otherwise preventing release, where it might be justified if those conditions were not to be imposed."
Although I accept there may well be a high risk of absconding in this case for the reasons given in the various detention reviews, given the absence of any verified ties in the United Kingdom, I do consider there are available conditions of release which will provide a proportionate measure of security against that risk. I will detail those conditions in due course.
of public harm through the commission of serious offences if the claimant were to be released. This however in my judgment is not this case.
"Mr Y was convicted of theft which resulted in him being recommended for deportation … although Mr Y's crime was not violent, it is considered he may turn to theft to support himself if released."
"Mr Y's offences are at the lower end of the spectrum and while they do not suggest a high risk of public harm, they do by their nature indicate a risk of re-offending. Mr Y has been identified by the agency's detention service one of the most disruptive and difficult detainees. He was believed to be involved in the use of illegal drugs and the concealment of a weapon. It s also recorded that he assaulted a Detainee Custody Officer. This is a clear indication as a result that he would present a high risk of public harm. Mr Y has been detained for 46 months and in this time has steadfastly declined to provide sufficient evidence of nationality and identity to provide a successful application in ETD. He has no verified ties in the UK and no reason to remain in contact if released.
I have considered the presumption of liberty and the length of detention but on balance both are outweighed by the high risk of public harm and risk of absconding."
"In the past, Mr Y has refused to cooperate with the re-documentation process. However it would appear he has now started to comply with the
interviews. Mr Y has been placed on R40 several times for fighting, however staff at Harmsworth have stated that they believe this to be due to frustration at being detained for such a long time with no prospect of removal.
For the reasons given above, it is considered that the presumption favouring release is not outweighed in this case as there does not appear to be any prospect of removal."
"Although he is now showing signs of compliance, the Algerian authorities could take time to issue travel documents. The evidence suggests there is a high risk of harm to the public and a high likelihood that he will abscond and re-offend …… these additional factors outweigh the presumption for release."
The evidence of Miss Gridley
"The claimant's recorded adjudications range in severity from disruptive behaviour to physically attacking members of the Detention Centre staff. The reports regarding the claimant's behaviour whilst in detention are extensive, so only the most severe instances are listed below:
(a) 21 March 2007, the claimant was transferred to HMP Pentonville due to his disruptive behaviour at Colnebrooke IRC. However, the claimant threatened to kill himself if he was not moved out of prison and was transferred to Harmsworth IRC on 16 August 2007;
(b) On 20 October 2007, the claimant was identified as 'a possible ring-leader due to intelligence received'. This intelligence later revealed there were threats 'regarding the safety and security of the centre, as well as discussions regarding hostages, damage to the fabric of the centre, and also the possible receipt of parcels containing flammable liquid or petrol';
(c) On 2 September 2008, the claimant was noted as attempting to assault a doctor and using threatening behaviour;
(d) On 7 November 2008, the claimant was noted as assaulting a member of staff and making threats towards an officer;
(e) On 22 November 2008, the claimant's record showed 'detainee was caught drinking hooch during escort to R40. Became violent and produced a razor blade as a weapon. He then made several attempts to assault escorting staff'.
(f) On 30 December 2008, the claimant's records note 'the detainee is currently on a detox program for substance abuse';
(g) On 6 February 2009, the claimant was noted as fighting with other detainees;
(h) On 14 March 2009, the claimant was noted as fighting with other detainees;
(i) On 30 June 2009, the claimant was noted as fighting with other detainees;
(j) On 19 July 2009, the claimant was moved due to threats from other residents;
(k) On 10 September 2009, the claimant was noted as making threats towards staff;
(l) On 8 October 2009, blades were found concealed in the claimant's belongings. This was following intelligence from another detainee who claimed the claimant had asked him to hide blades for him."
has been produced to support the incident at (l) referable to 8th of October 2009.
"The claimant be released no later than 48 hours after service of the order on the following conditions:
(i) Live and sleep each night at Barry House, 261 Barry Road, London, SE22 0JT;
(ii) to report once a week to an Immigration Service Electric House, Mulsberry Road, Croydon, CR02AG;
(iii) the claimant shall remain in the residence between the hours of 11pm and 8am;
(iv) shall cooperate with the conditions of electric monitoring in respect of the defendant;
(v) the defendant be notified of any application of variation of address on bail."
In those circumstances, my Lord, as I have said my application is for costs, and in addition to that for the costs in respect of the second day of the hearing to be on an indemnity basis. In support of that application I have a chronology of the correspondence leading up to the hearing on 26 March; copies of the correspondence that were sent and an authority, so if I could pass that up first of all please.
So, my Lord, in terms of the procedural history, an order was made on 1 February that the claimant's skeleton was to be filed and served on 12th February, that is set out in the chronology that you have at the beginning of that bundle, and the defendant was to file a skeleton and serve it by 19th February. The hearing was then listed for 26th February. The claimant's skeleton was duly filed on 10th February, on 19th February, the deadline for the defendant's skeleton, none was filed or served, as a result of which several letters were sent by the claimant's solicitors, in total six, which you have attached, my Lord, to your chronology. My Lord, you will see that on 22nd February, three days later, my instructing solicitors wrote asking for the skeleton, a holding response was provided on 23rd February simply setting out -- this is at the second page of the bundle:
"I regret the skeleton argument is not yet finalised, I will forward it to you as soon as it is"
With no further reasoning as to why there was a delay. A letter was then sent to the court and to my solicitors on 4th March 2010 referring to the skeleton being due by order of the court on 19th February, and apologising that this had not been done and saying that, pending obtaining instructions, this would be filed. Thereafter, a further chasing letter was sent by my instructing solicitors on 5 March, requesting an explanation and also a timescale for the defendant's skeleton argument. Then a further letter is sent on 10th March:
"Please find enclosed a copy of the trial bundle and we note we have still not received a copy of the defendant's skeleton argument."
Thereafter, my Lord, another letter is sent by my instructing solicitors on 19th March, setting out, again:
"We have still not received the defendant's skeleton argument, even though this was due to be filed and served on 19th February; it is now 19th March. You have not replied to our letters enclosing a copy of the trial bundle."
A further chasing letter is then sent on 24th March, this is fifth letter making enquiries as to the skeleton argument. The final paragraph of that letter sets out:
"We have still not received the defendant's skeleton argument, despite the fact the trial is now less than 48 hours away. We understood you were waiting to hear back from your clients on Monday, we therefore assume a skeleton argument has been finalised."
Following on from that, evidence was sent attached to an email of 24th March. Again, no skeleton argument. On 24th March further documents are sent in this email and it is said that counsel is finalising the skeleton argument. On 25 March, again, a letter from my instructing solicitors asking that the skeleton be forwarded and setting out -- this is at the very back page of the correspondence bundle -- setting out:
"We have written to you on no less than five occasions since then requesting the skeleton be provided and you have either failed to respond or sent holding responses. This is extremely prejudicial to our client (inaudible). Our client remains in detention. You have provided no explanation for the delay."
Thereafter, my Lord, on the actual date of the hearing, 26th March, prior to that, the evening before, at 7 o clock that evening, the skeleton and unapproved skeleton was forwarded from the defendants. On the date of the hearing, at 20 past 10 that morning, the claimant was presented with a new bundle of documents requiring instructions to be taken on that. Thereafter, my Lord, as a result of the way in which the defendants conducted themselves in the service of this additional documentation, the hearing took an excessive period of time which could have been avoided. There was an obvious need for this evidence from the outset and no reason why it could not have been disclosed earlier.
Also, I am instructed that the effect of the submissions, more than 50 per cent of the time spent on the defendant's submissions was as a result of this late disclosure of the evidence, primarily clarifying the position. That then led to the adjournment and even after that date, my Lord, on 1st April, this further statement, which was of obvious significance and consequence and featured heavily within your Lordship's judgment, the statement of Maria Gridley was then served, and this was done on 1st April with further documents in support. So, on that basis, my Lord, I make the application. In terms of the CPR, 44.4 sets out --
"In deciding what order, if any, to make about costs, the court must have regard to all the circumstances including (a) the conduct of all the parties"
And then (5):
"The conduct of the parties includes conduct before as well as during the proceedings, and in particular the extent to which the parties followed the practice directions"
"The manner in which a party has pursued or defended his case or particular allegation in issue."
"The conduct of the party includes conduct before as well as during the proceedings"
"The manner in which a party has pursued or defended his case."
"Indemnity costs of second day of hearing caused by need to deal with defendant's default on the rules"
And that is, my Lord, the authority that you have attached to that bundle, and in particular I rely on page 15 of 19 of that decision which sets out, in the third paragraph on that page:
"The broad impression I have, and the basis upon which I propose to proceed is that, but for the City's misconduct in the litigation, there would not have been a hearing on the second day. I shall therefore direct that, notwithstanding the costs generally to be assessed on the standard basis, the costs incurred on the second day of the hearing are to be assessed on the indemnity basis."
If we come to the rules for indemnity costs, you will see that indemnity costs are, in the main, awarded to mark serious disapproval by the court with the conduct, or should I say misconduct, of a party at that litigation.
So, my Lord, that is my explanation. I would very quickly comment on the case that has been put before you.
"The City's conduct is utterly lamentable. Its breaches of the rules are inexcusable. It would be tedious to catalogue each of its faults."
So, my Lord, that is a situation when litigation had been perpetually conducted, as it were, in a manner which was seriously in breach of the rules.
My Lord might recall that, under the old rules, the respondent only ever put a skeleton in two days before the hearing.
The claimant, having succeeded, undoubtedly will have his costs of the claim against the defendant. The issue is whether I should go further and order indemnity costs in relation to the hearing on 8th April, which was an additional day to that which had been allowed for on 26th March 2010. Relied on heavily by the claimant is that the order of the court was that, by 19th February 2010, the defendant should serve the skeleton argument. There had been other orders as to the service of evidence. In the event, the defendant's skeleton argument, together with supporting material which, as at 26th March 2010, attempted to bring the court up to date as to what had been happening since the unsuccessful interview with the Algerian Embassy on 15 December, was not served and produced in completed form, as far as the claimant was concerned, until the day of the hearing, 26th March, although it had been served I understand the day before in unapproved fashion. As far as the court was concerned it was only produced to the court as the hearing commenced.