QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SAID HARRAK||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MS LISA BUSCH (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
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MR JUSTICE KING:
The Statutory Framework
"A person who is not a British citizen shall be liable to deportation from the United Kingdom --
(b) if the Secretary of State deems his deportation to be conducive to the public good..."
And then under section 5(1):
"Where a person is under section 3(5) [...] liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom..."
Under schedule 3 to the Act, paragraph 2(2):
"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."
I pause there. It is common ground that "pending" means "until" the making of a deportation order. Then under paragraph 2(3) of schedule 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 Principles
"7. Although the power which is given to the Secretary of State in paragraph 2 [of schedule 3 to the 1971 Act] 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 implicitly 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.
8. 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..."
These principles were confirmed by the Court of Appeal decision in (I). In his judgment, Dyson LJ, as he then was, summarised them thus at paragraph 46:
"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 Re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D [...]. In my judgment, [counsel for the Secretary of State] 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 reasonable diligence and expedition to effect removal."
"The deportee may only be detained for a period that is reasonable in all the circumstances."
There is implicit in that principle 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. This is principle (iv) of Dyson LJ in (I):
"The Secretary of State should act with reasonable diligence and expedition to effect removal."
"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 [...] 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."
"...a pertinent question [...] 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 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 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."
At paragraph 54, referable not merely to the risk of absconding but referable to any refusal to accept voluntary repatriation, Toulson LJ said this:
"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."
And at paragraph 55, referable again to the risk of offending:
"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 [...] 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."
"...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 would be wrong for the Secretary of State to seek to exercise his power of detention."
Dyson LJ in (I) made this his principle(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..."
To which I would add, that the Secretary of State should not seek to maintain the power of detention, even if originally it had been lawfully exercised. As Dyson LJ said within paragraph 46 of (I):
"...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."
"...whether the Secretary of State has proved on the balance of probabilities that there is a reasonable prospect of securing the Claimant's removal within a reasonable time..."
In other words, there has to be a realistic prospect of removal within a reasonable time. There is probably no difference between the formula "realistic prospect" or "reasonable prospect".
"There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act……."
The Background Facts
The Claimant's non-cooperation before December 2008
"I am writing this letter in order to keep you updated regarding your case. As you will be aware, an IS151F letter was sent to you today, detailing the current status of your case. I am aware that you have failed to cooperate with the documentation process so far. You were interviewed on 25 April 2007, 11 June 2007 and 20 June 2007. A further interview took place on 3 January 2008. During these interviews, you failed to provide sufficient information that would satisfy the authorities that you are a Moroccan national.
As you are aware, you have no legal entitlement to remain in the United Kingdom. A deportation Order was served on you on 30 July 2007. Your removal from the United Kingdom will continue to be sought.
It is important that you are aware that your behaviour in regards to the documentation process is seriously impeding any chances of being released from detention in the future. 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 failed to cooperate with interviews to gain information for the purposes of documentation. If you wish to assist us in progressing your case, you are advised to speak to one of the Officers in your prison establishment.
It is also important to reiterate the fact that your continued failure to cooperate with the ETD process is a significant factor in the decision to maintain detention. You should also be aware that case-law in this area has made it clear that continued failure to cooperate will remain a significant factor in deciding whether to maintain detention or grant bail in the future. While decisions will be considered on the basis of all the available factors, you should note that this may result in a prolonged period of detention. In addition the courts have ruled that there is an onus on you to leave the country once your appeal rights have been exhausted.
You are also advised that you remain eligible to apply for the Facilitated Return Scheme (FRS). This is a voluntary scheme which is designed to assist you in returning home and re-integrating into your home country. If you agree to return home under this scheme you will receive £46 in cash on leaving the United Kingdom as well as being eligible for up to £500 to assist you in re-integrating into your home country. This could be used for example to set up a business, further your education or assist with housing. If you are interested in this scheme, you are encouraged to contact an officer or someone from immigration."
"...to cooperate with the completion of bio data forms on 11 February 2009 until you have spoken with an officer at FRS."
"As I discussed with you on the telephone, you are more likely to be accepted onto the FRS scheme if you are seen to be complying with the documentation process as a travel document will be required for your removal."
I shall return to the issue of what was happening in February 2009. The FRS is a reference to a Facilitated Removal Scheme. For present purposes, I am simply recording that the Secretary of State did draw to the attention of the claimant by letter, both in February 2008 and 2009, the potential consequences of his non-cooperation on the prolongation of his detention.
"e-mail sent to ccd ops [Criminal Casework Directorate operations] croydon to see if there is any progress with S35 prosecutions yet."
That is a reference to potential proceedings under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, whereby a sanction can be imposed if a person fails to carry out a requirement of the Secretary of State to take specified action which will or may enable a travel document to be obtained, and where the possession of the travel document will facilitate the person's deportation or removal. But the record continues in these terms:
"in addition etd [Emergency Travel Document] app forms completed using info on file. Basic details can be filled i[n]. It is worth submitting an etd app based on this information as it may take 12mths w/o [without] supporting evidence IF MAR emb accept the incomplete application so the sooner we submit it the better (in my opinion this should have been attempted after the first failed etd i/w [interview] in april 2007). Obviously if the MAR auths [authorities] will not accept the etd app then at least we have attempted it.
"we have subs [submitted] old ppt [passport] number so this is something that the MAR [Moroccan] auths [authorities] should be able to check. Copy landing card to be submitted with the etd app[lication]."
But then this follows:
"we will need photos and f'prints in order to submit the etd app[lication]."
Events since December 2008 to the Submission of the ETD Application on 21 January 2009
"15 December 2008: Emergency Travel Document application submitted to RGDU.
29 December 2008: Claimant chased progress on his case. [...]
30 December 2008: Letter served on the Claimant informing him of progress. The Claimant spoke to a member of the UKBA and advised that he was willing to comply with the documentation process and stated that the UKBA held a copy of his passport in relation to an old marriage application. A subsequent search of the Claimant's Home Office file failed to locate a copy of his passport.
31 December 2008: RGDU advised that they could not accept the Emergency Travel Document application as it was completed on an old form and that a new form would need to be completed.
6 January 2009: Detention review completed and monthly progress report faxed to the prison to serve on the Claimant.
8 January 2009: Claimant's brother's Home Office file was requested in order to search for any information or documents that could be used as evidence of nationality.
A DVLA check was also completed on the Claimant but no trace of this was found.
A request was made to obtain the documents the Claimant had supplied when applying for a National Insurance number, but UKBA were later informed that the supporting documents were destroyed after 6 years."
"21 January 2009: Application for Emergency Travel Document submitted to Moroccan Embassy."
Steps taken by the Defendant to pursue the ETD Application of January 2009
"[Telephone call] from CCD requesting an update on the progress of the ETD application.
After several failed attempts to contact the MAR Consulate by telephone, I have sent a fax requesting an update."
Then it says:
"Have we heard from the MAR Consulate?"
And further down one reads:
"I have tried calling the Consulate several times on both numbers made available to RGDU. I have sent a fax requesting an update."
As far as July is concerned, that was the sum total of what the defendant did. August was a non-month for these purposes: the Moroccan Embassy was closed from early August to 7 September 2009, although on 28 August 2009 there was an email from CCD where the CTU requested the RGDU to chase progress with the Moroccan Embassy. Finally, on 8 September 2009, which is just under eight months after the application was submitted, there was an oral response from the Moroccan Embassy advising that:
"Checks are still ongoing."
"UKBA informed that the case will be looked in to."
On 26 November 2009, which is now some ten months after the application submitted, a fax was sent to the Moroccan Embassy requesting an update on the case. On 27 November 2009, the date of the hearing before the court, the RGDU received an update from the Embassy in which the official stated they were yet to receive a response from the authorities in Rabat. One then goes forward to February 2010, after the release from detention, when another fax was sent to the Moroccan Embassy requesting an update on the outstanding application.
"The steps taken to gain a travel document to facilitate the Claimant's removal are set out in the above chronology. I am informed by the case owner with day to day conduct of progressing the Claimant's removal that the Claimant is to be put forward for a telephone interview with the Moroccan Embassy so that they can be satisfied of his nationality before issuing an Emergency Travel Document. It is estimated that upon successfully contacting the Moroccan Embassy it could take a week for the interview to be arranged and conducted. The Moroccan Embassy will ask questions testing the Claimant's knowledge of Morocco. If the interview results in the Moroccan Embassy refusing to accept the Claimant as a national, then the case will be referred for a language analysis in order to ascertain where the Claimant originates. The case owner will also refer the case to the UKBA's Country Targeting Unit who have experience of handling cases where nationality is disputed and proving difficult to document. They will raise the case with the Foreign and Commonwealth Office to contact the Moroccan Embassy about the outstanding Emergency Travel Document application."
Non-cooperation of Claimant since Jauary 2009
"I certify the above details are fully understood and to the best of my knowledge are correct"
(Quotation not checked)
That "Mr Harrak will not comply".
"In view of ETDA [...] having already been sent to the Moroccan Embassy, are f/prints & photos still necessary?"
although the point now being made by the Secretary of State is that it was always going to assist the application if further information was obtained.
"Dear Mr Harrak.
"As per telephone call earlier today, I can confirm that after speaking with the FRS team, they are now considering your case and whether you would be suitable for the FRS scheme.
It is noted that you have refused to cooperate with the completion of bio data forms on 11 February 2009 until you have spoken with an officer at FRS. As I discussed with you on the telephone, you are more likely to be accepted onto the FRS scheme if you are seen to be complying with the documentation process as a travel document will be required for your removal. I urge you to complete the attached bio data forms and provide documentary evidence to prove your identity like a passport, birth certificate or identity card and forward these to me as soon as possible.
The FRS team have advised that they are going to review your case and decide whether you are a suitable candidate for the scheme within approximately one week. If nothing has been heard, I will chase a decision from them next week on your behalf, however in the meantime please feel free to contact the FRS team or myself for an update and I will do all I can to assist."
"The subject advised Brian that he hopes to have his Birth Certificate in his possession by Friday."
"I have not been asked to complete a bio-data form since February 2009 which I discussed above. In any event it is not clear to me what the purpose of the form is nor have I been told this. I am not aware that it necessarily is relevant to the issue of my emergency travel document by the Moroccan embassy. If it were then no doubt I would have been asked to complete it again since then."
"Dear Mr Harrak.
You have requested that you be allowed to leave the United Kingdom voluntarily.
After considering the circumstances of your case it has been decided to allow your return to Morocco under the Facilitated Return Scheme. You will not be deported but the Home Office will consider whether you should be excluded from the United Kingdom.
Please find a disclaimer enclosed for you to sign and complete and return it to the above fax number."
This event is accurately described in Mr Lowey's chronology as being:
"Claimant's application for FRS approved."
"Owing to your failure to comply with the ETD process by supplying FRS with supporting evidence for your application despite numerous requests to do so."
That was the content of a box marked with an X. This decision in October 2009 to reject his FRS application is one which the claimant says in his witness statement that he did not understand as he thought his case worker would have provided all the information that was now needed. I am bound to say there is no material before me to explain why on 18 March 2009, in the circumstances in which the defendant was aware of the failure now relied upon, to provide further material through completing the bio-data form and the birth certificate and so forth, the Secretary of State was prepared to allow the application to be part of the FRS, and then on 2 October 2009 to say that it was now refused.
The Legality of the Detention
" the only barrier to his removal is the lack of travel document which was submitted to the Kingdom of Morocco on 21 January 2009. RGDU guidelines state that Moroccan ETD can take between 6 and 12 months to obtain and, with CTU having forwarded the subject's case history to the RLU and requested RGDU make regular enquires with officials at the Moroccan Embassy. It is suggested that the subject may be documented within a reasonable timeframe".
" On 23 February 2009 RGDU advised that they are still waiting for a response from the Moroccan Embassy however without any supporting documents it may take up to 24 months for ETD whereas with supporting evidence it could only take up to 6 months"
"The Defendant's on-going decision to detain the Defendant was made on the basis that the circumstances which warranted his initial period of detention had not significantly changed. He had and has an extensive criminal record, including offences of escaping from and failing to report to custody, and he has consistently refused to comply with the documentation and removals process."
"I have considered this case in favour of presumption of release and consider it inappropriate at this time.
The subject has refused to cooperate with providing information and supporting documents for documentation purposes and failed to show for his documentation interview. The subject is aware of our intention to deport him from the UK and has been served with a signed deportation order to this effect. He has also exhausted all of his appeal rights and it is therefore considered unlikely that he would comply with any conditions of release at this stage.
The subject's immigration history indicates that he is unlikely to comply with any conditions placed upon him if released at this stage. Given his extensive criminal history; dating from 1988 a total of 26 convictions from 42 offences; there is a strong risk of re-offending which would jeopardise public safety and the fact that he has previously failed to report when required to do so suggests a strong risk of absconding. It is also noted on the special conditions screen to have escaped from custody while at North Middlesex Hospital on 20 February 2006. The subject's history of non-compliance, escape and prolific re-offending suggest that the risk of absconding is unacceptably [sic] at this late stage of the case, where appeal rights are exhausted with no outstanding applications.
I have assessed this case in accordance with the current criteria and have concluded that for the reasons above Mr Harrak is not suitable for release even under conditions of rigorous contact management. I propose that continued detention is justified in order to address the risk of absconding and re-offending, factors which outweigh the presumption of liberty.
I therefore propose to maintain UKBA detention until this subject can be removed from the United Kingdom or at least until the outcome of his ETD application, which RGDU continue to chase, is known."
They are summarised in this further paragraph set out in the review:
"Mr Harrak has a long history of offences and failure to comply with UKBA. He poses a high risk of re-offending and absconding if released under rigorous contact management. He also poses a risk of harm to the public."
The bail applications
"The applicant has an outstanding ECHR application, however this is not a barrier to removal. A travel document is required for the applicant's removal however he has previously failed to comply with the documentation process by refusing to be interviewed, give bio data details and fingerprints. A travel document application has been completed and submitted using details found on the case file. The applicant has now started to comply with the documentation process and a documentation interview is currently being arranged. It is therefore considered that a travel document can be obtained within a reasonable timescale."
"An application for an emergency travel document has been made to the Moroccan authorities using information from the case file as the applicant has failed to comply with the documentation process. The Moroccan authorities have informed us that they are carrying out verification checks, once these have been completed, a travel document should be made available within a reasonable period of time. The applicant has just started to comply with the documentation process and an interview date is now awaited. Once bio data details have been received these can be forwarded onto the Moroccan authorities. We submit that at the present time, detention remains appropriate and proportionate whilst we obtain this information and obtain a travel document."
"The applicant has however within been in custody for a very substantial period of time, 28 months, largely because of failure to cooperate with removal, but has now cooperated and the respondent states the application to have been with the Moroccan Embassy since 15 December 2008 and documentation is expected soon. If documentation is not received from the Moroccan Embassy within a reasonable period then in view of the time in custody, bail may very well become appropriate."
The application had not of course been with the Embassy from 15 December 2008 and it is very difficult to understand how the defendant could have allowed the tribunal both to consider this to be the case and moreover, to understand that the ETD documentation as at 14 January 2009 was "expected soon "
"R[espondent] is endeavouring to remove the A[pplicant] and expects to receive an ETD by end of June 2009. Removal is reasonably imminent and coupled with (i) - (iii) above justify A[pplicant]'s continued detention."