England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 November 2010

1. MR JUSTICE IRWIN: This is a case where the claimant has applied for judicial review of the defendant's sequence of decisions concerning his detention, pursuant to powers under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, schedule 2, paragraph 2(3).
2. The claimant has spent two periods in immigration detention, the first being a period of 32 and a half months from 31 March 2005 to 17 December 2007, which I shall refer to as the first period. That detention ended when the claimant was released on bail, pursuant to the order of Ouseley J on 11 December 2007, pending the substantive hearing of an earlier application by the claimant for judicial review.
3. The order of Ouseley J was discharged by an order of Lloyd Jones J dated 21 December 2007. The discharge meant that the Secretary of State was re-authorised to detain the claimant, and that duly came about, with the claimant entering a second period of detention on 14 January 2008. He remained in immigration detention until Collins J ordered his release on 4 December 2009, at the same time as the application for permission for judicial review in the instant case.
4. The outline chronology which surrounds those central periods can be summarised as follows. The claimant arrived in the United Kingdom on 7 January 2003. He is an Iranian national and an Iranian citizen. He claimed asylum on 15 January 2003, which claim was refused by the Secretary of State on 15 March that year. On 1 October 2003 his appeal against the refusal of asylum was dismissed.
5. On 13 February 2004 the claimant was convicted of indecent assault in relation to an episode involving two 15 year-old girls, and on 9 March 2004 he was sentenced to 12 months' imprisonment, and was, as an administrative consequence following automatically on that sentence, required to register as a sexual offender for a period of five years, a period which of course has now expired.
6. On 7 September 2004 he was released on licence, but on 24 September of that year his licence was revoked on the basis that he had failed to comply with the terms of his licence.
7. It is relevant to note that, whatever was the failure in relation to the licence associated with his release from prison, he had been, it seems, reporting to the immigration service as a condition of his conditional leave to remain during that period, and so he had been complying with at least some of his reporting obligations.
8. He was re-arrested on 19 January 2005 whilst reporting to the immigration service, something which he had been doing with reasonable rigour for the period of months up to the point of re-arrest.
9. On 31 March 2005 the claimant was served with the decision to make a deportation order, something which underpins all of the central events in this case. On the same day he was detained under the powers held by the Secretary of State contained in the Act. There was said to be a refusal to co-operate with an immigration officer in June 2005, and on 4 August of that year the deportation order was signed, and the order was served upon him on 12 August.
10. On 5 September 2005 the claimant is said to have indicated that he wished to return to Iran. On 5 October an application was submitted to the Iranian authorities for an emergency travel document to enable him to travel home. However, that application was rejected by the Iranian authorities on 22 November 2005.
11. Whilst detained, the claimant was interviewed at the Iranian Embassy on 15 September 2006, and on 18 September of that year the Embassy wrote to his solicitors, saying that they could not, or would not, issue a travel document as no formal identification of the claimant had been provided.
12. On 17 October the Home Office were informed that the Iranian authorities required a birth certificate before any travel documents would be issued. The Home Office negotiated with the Iranian authorities to accept copy documents, and although they initially agreed with that approach, they subsequently refused.
13. On 13 September 2007 the claimant commenced judicial review proceedings challenging his detention. Those proceedings were never brought to a conclusion. On 6 November the notes record that an agreement had been reached by the Iranian authorities that they would issue a travel document, provided that the claimant was willing to sign a disclaimer.
14. I break off from the narrative of events to say that there has never been a close definition of what disclaimer it was proposed to sign, but the meaning is nevertheless pretty clear: it was a disclaimer by the claimant of the need for strict proof of his identity so that a travel document could be issued without him protesting, and his signifying that with such a travel document he would be prepared to travel home.
15. On 11 December 2007, as I have said, Ouseley J required this claimant to be released. He set specific terms for that release. I need not read them all, but they did include a requirement that this claimant should co-operate with the authorities in obtaining the relevant travel documents which would permit him to be deported home to Iran.
16. On 14 December 2007, three days after the order for release, he refused to sign the necessary disclaimer. Nevertheless, on 19 December the decision was taken by the Secretary of State to release the claimant on bail. On 21 December, two days later, after his release, the matter was brought back before Lloyd Jones J, as I have indicated, who discharged the previous order, meaning that the claimant was liable to re-detention.
17. On 27 December 2007 Group 4 Securicor reported that they had attended the claimant's nominated address on two occasions with the intention of installing the equipment needed for electronic monitoring or tagging. They attended on successive evenings, at times when, had the claimant been living there and had he been obeying the curfew which was imposed upon him by the order of Ouseley J, he should have been present at those premises. They were unable to obtain access, and it seems clear that at least by then the claimant had moved to a different address.
18. It is equally clear that he reported that different address to the immigration authorities since very shortly thereafter, in January 2008, they were able to communicate by letter with him at that substitute address. I am not able to say on the evidence before me whether he communicated the address before Group 4 Securicor attempted to enter the address they had or at what point he did so.
19. On 8 January 2008, no doubt in response to the failure of Group 4 Securicor to achieve installation of the monitoring equipment, an authority was issued for the claimant's detention, and on 14 January he was detained whilst reporting to the immigration service, again making it clear that he was, at least to that degree, complying with his obligations.
20. On 17 January he was disruptive in custody. Having been in custody for a considerable time, he had of course very recently returned to detention. By February 2008, the authorities having been alerted to the fact that he had had psychological consequences of detention, or at least was showing some signs of psychological disturbance, a report from a community psychiatric nurse noted that he had become increasingly depressed, giving the label of "reactive depression", and that he was by then receiving medication for his psychological symptoms.
21. On 26 February 2008 the claim for judicial review which had been launched the previous year was dismissed. On 7 April the claimant attended at the Iranian Embassy, but no travel document was issued, and on the following day, it seems, he was again disruptive in the hands of the authorities. On 4 June he refused to sign a disclaimer. On 25 July 2008 he is alleged to have displayed inappropriate behaviour to a female member of immigration staff at a detention centre, also in the course of an episode where he was said to be disruptive.
22. For the period into which I am now entering, in due course I will give a closer analysis of some of the facts, but for the moment it is helpful to finish the outline chronology.
23. By 1 September 2008 the claimant was threatened with a prosecution pursuant to section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, hereafter referred to in this judgment as the section 35 offence. No prosecution was mounted.
24. On 13 October he did write to the United Kingdom Border Agency, saying that he was willing to return to Iran once he was compensated, it is clear from the context, for the periods of detention he had undergone. That suggestion was rapidly and properly rebuffed by the Border Agency, telling him that he was not entitled to compensation.
25. On 6 January the authorities made another attempt to engage him in a voluntary return, as they did again on 6 February, as they did again in March, and in each case the claimant said he was not willing to co-operate or to sign a disclaimer. That pattern was repeated in May, in June and in September of 2009.
26. In the middle of 2009, on 17 March, 9 June and 7 October, he made three applications to the Asylum and Immigration Tribunal to be granted bail by an immigration judge. On each occasion the application was dismissed, with the judge giving reasons, which included the fact that it lay in the claimant's own hands to be released from detention by signing the disclaimer so that he could be returned to Iran.
27. On 21 October 2009 the claimant's solicitors wrote a letter before action, anticipating the judicial review proceedings which have come before me. On 4 November the Secretary of State responded, denying any breach of the law or any basis for successful judicial review, and proceedings were therefore issued on 6 November of last year.
28. On 4 December 2009 Collins J granted permission for judicial review in these proceedings. At that stage the Home Office could not find the file relating to the claimant, and so were unable to give any reasoned position to the court in relation to this judicial review. The judge ordered the claimant to be released on bail within 48 hours, and the matter has progressed through the ordinary stages of litigation to the hearing today.
29. In advancing the claim on behalf of the claimant, Mr Southey QC has suggested that there are five key facts or features to the story in this case which should determine the outcome. They are the length of detention undergone by the claimant; his lack of co-operation, (which it is acknowledged must be considered as a key element in the story) as to how far it can and cannot advance the case; thirdly, says Mr Southey, there is positive evidence that the claimant would not have absconded if released on bail pending deportation; fourthly, his criminal offending is not the most serious; and fifthly, his detention has had an impact on his mental health.
30. Mr Southey stresses, in relation to the last point, that this is not one of those cases where it is claimed that the impact of detention on any mental health problems are sufficiently severe that detention of the subject is inconsistent with the policy of the Secretary of State as set out in the rules.
31. I deal with those points in sequence, but with rather different detail, attention and development, in the judgment.
32. As the chronology I have outlined makes clear, this claimant had been in custody for a very long time. If one has regard to both periods of detention, at least to the degree of having regard to the first as background, the total period of detention before release on bail was one of 56 months, very nearly five years' detention. That is coming close to the equivalent of a ten-year prison sentence, allowing for the normal remission accorded to prisoners who are sentenced.
33. Mr Southey for the claimant suggests that both periods can properly be looked at as being unlawful, but he realistically concentrated his fire on the second period.
34. The defendant's position is that the first period cannot be in question legally since there was a release for a period of up to a month as a result of a court order, and since the order enforcing release was itself discharged, as I have indicated, by Lloyd Jones J. It is inconceivable says the defendant that the detention in the first period could be regarded as unlawful when the order compelling release was itself discharged.
35. However, Mr Auburn for the defendant sensibly and rightly accepts that, even if the first period of detention is not in question in the claim as being potentially unlawful, it clearly must be taken into account when considering the lawfulness of the second period of detention. To be fair to the officials within the department, it is clear that on a number of occasions in their file reviews they did exactly that, acknowledging that this claimant had been in custody for a long period before his relatively short release on bail at the end of 2007.
36. So, in effect, Mr Auburn concedes that this case is to be treated as one where the claimant has had an extremely long period of detention which must be taken into account in considering the legality of the later period, which is directly in point.
37. The second factual area is the lack of co-operation on the part of the claimant in relation to compliance with the simple step of signing a disclaimer which would at all stages have permitted him to be returned to Iran. While he has from time to time given indications that he would take this step, he has always pulled back from actually doing so. At other times he has indicated that he would not comply in that way or any other way.
38. In the end, it is an accurate description of his position, as recorded in the papers, that he was "steadfast" in his refusal to comply with the disclaimer.
39. The authorities are in a difficult position in relation to people such as this claimant, who refuse to take steps which would enable them to be deported voluntarily. The combination of the limitation of powers granted to the Secretary of State under the 1971 Act, and the operation of Article 5 of the European Convention on Human Rights imported into our law by the Human Rights Act 1998, means that they cannot indefinitely detain someone who is the subject of attempts to deport. They can only detain such a person while there is a realistic and active prospect of deportation, since the root of the power is to detain for the purpose of deportation and nothing else.
40. If someone is recalcitrant, then there are limited steps legally open to the Secretary of State. The public might find that surprising, but nevertheless it is the law. It is familiar law. It is based on a decision by Parliament, not the courts.
41. Faced with a recalcitrant person whom it is proposed to deport, the authorities can and should be free to make strenuous efforts to obtain the assent of the individual concerned. They can and should seek any way around his consent, for example by persuading his country of origin to issue travel documents without a disclaimer or any other indication of willingness on the part of the subject. But if no such action produces results, then, depending upon the facts of the case, it may be necessary for the authorities to face up to the fact that all of the shots in their locker, if I may use that expression, have been expended.
42. What the law does not permit, it seems to me, is an indefinite detention of someone who is never going to consent to deportation, without taking all other steps that might be open, but merely sitting back without at least a plan to obtain the end of deportation. Something of that kind, in my judgment, emerges here from the internal documents coming from the Secretary of State bearing on the period from the second half of 2008 to the second half of 2009.
43. I begin in January 2008, at the time when the claimant was re-detained. As I have already indicated, he was re-detained when reporting consistent with the conditions of his bail. He was informed that it was intended to remove him to Iran, and he was, as I have indicated, asked for his co-operation. That was not forthcoming.
44. On 14 February 2008 he was assessed by the Border Agency. The assessment included this account of events coming from him:

"Mr NAB has found himself becoming increasingly depressed over the past few months with associated psychosomatic symptoms due to a variety of reasons, the main one being his length of stay in detention and him facing some uncertainty about his future. To add, he came to the UK with a view of bettering his lifestyle and to enjoy the freedom and socialisation and sports activities, ie football, that this country offers. Him now being in detention has now challenged his hopes for his future which is further compounding his low mood. Since being in Dover he has been commenced on the antidepressant Fluoxetine 20 milligrams daily but has yet to see the benefit of this treatment."

45. Thus by February it was already clear to the authorities that he was in that mental state and, as the same document records, "suffering with the first episode of reactive depression with associated psychosomatic symptoms".
46. Assessments of his intention not to consent to return continued through the first part of 2008. On 4 July 2008 an assessment was made, supporting continued detention, which it is worth quoting since it is in very much in the same terms as those before and after, as we move from the central period of 2008 into 2009:

"Mr NAB is an illegal entrant and a failed asylum seeker who has exhausted all rights of appeal and is now the subject of a deportation order. He has previously failed to comply with reporting restrictions and has been consistently non-compliant with the ETD process. He is fully aware that we intend to deport him and as such the risk of him absconding is considered to be high. The only remaining barrier to [the claimant]'s removal is an ETD. Unfortunately the Iranian Embassy despite confirming him is an Iranian nation (sic) will not issue an ETD unless he signs a disclaimer and states that he wishes to return to Iran. Under these circumstances, unless [JAN] signs a disclaimer (and the evidence suggests that he will not) removal cannot be expected within a reasonable timescale. Nevertheless the onus is on the claimant to leave the UK once their appeal rights have been exhausted and by refusing to sign a disclaimer [JAN] is deliberately frustrating his own removal. In the light of the seriousness of his offence, his poor immigration history, his continued non-compliance and the high risk of him absconding, continued detention is considered both appropriate and proportionate to effect removal. This case has been considered under the current detention criteria."

47. That decision was then reviewed by a more senior officer, as appears to have been the regular procedure. On the same day he commented as follows:

"I agree with the previous assessment that this subject is contributing to his own detention by failing to comply with our attempts to document him. It is a requirement that subjects are willing to go to the Iranian Embassy to sign a disclaimer there. Subject is knowingly prolonging their own detention (sic) and in light of this, I believe that continued detention is proportionate. Maintain detention."

48. The claimant was written to on 28 July 2008 in terms again which appear through the papers and which are consistent with the decision recorded. In the middle of the letter, after some background history, the authorities write:

"On 26 June 2008 you were offered an application for removal under Operation Asarina which you declined to accept. If you wish to assist us in progressing your case and potentially reducing the time you spend in detention prior to removal, please sign the disclaimer and co-operate with the immigration officers at the removal centre and the officials at the Iranian Embassy. You were advised that your continued failure to co-operate with the Emergency Travel Documentation (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 clear that continued failure to co-operate will remain a significant factor in deciding whether to maintain detention or grant bail in future."

The letter goes on, urging him to co-operate.

49. A very similar decision was taken in August 2008, pointing up once more what the problem was and that his detention was as a consequence of his own refusal to sign the disclaimer, and again, a letter in similar terms was written to him.
50. On 1 September 2008 the documents disclosed demonstrate that the claimant had been told he was liable for prosecution for the section 35 offence, pursuant to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, and thus from that stage he knew that he was at risk of such prosecution. In October 2008 the monthly review records, under the rubric "Progress since last review", the following:

"On 13 October 2008 a letter was received from Mr NAB stating that he is willing to return to Iran as soon as the [sic] receives compensation from the British Government."

51. The proposal for action, in effect the plan set out in the documents, recites the history as before, but does not record an intention to prosecute him. It simply concludes "maintain detention".
52. Through the rest of 2008 and into 2009 nothing changes. No plan of action was formulated. No approach was made to the Iranian authorities. No prosecution was launched. No further threat of prosecution was made. Nothing happened except that the claimant continued in detention.
53. In January 2009 the monthly review concluded with an entry under the rubric "Director CCD" which reads as follows:

"I agree that continued detention is appropriate in this case on the grounds of public protection and also on the ground of absconding risk. This man now holds all the cards in that he refuses to comply with signing an Iranian declaration of intent to travel to Iran. This prevents the Iranians issuing the already agreed ETD. It is unlikely that [N] will change his approach without motivation. I think that we need to interview him assertively as to his expectations, clearly positioning him on the likelihood of continued detention. I also wonder whether Special Ops may be able to gently push the Iranians on issuing this ETD without a declaration being signed -- they have, after all, acknowledged that he is Iranian. I copy this review to Special Ops ...

? maintain detention."

54. As the first half of 2009 continued, from that report in January, again nothing changed. There is no evidence of an approach to the Iranian authorities. There is no evidence of any different approach to the claimant, although he continued to refuse to sign the disclaimer, despite being pressed.
55. In July 2009 a further review took place, and beneath the normal report there is a comment from a figure described as "director" as follows:

"I agree that Mr NAB offending and immigration records and his history of non-compliance history together outweigh the presumption of liberty. We must try an assertive interview on a regular basis in order to persuade him to sign the disclaimer."

56. Again, no decision about prosecution under section 35. Nothing had happened. There was no different approach to the claimant and no further approach to the Iranian authorities. It is fair to say that at that point, at the end of June and beginning of July 2009, the team leader suggested in the course of his report that:

"I feel that section 35 should now be progressed".

57. That plea by the team leader was not followed up. Section 35 proceedings were never progressed. The assistant director, in late July 2009, wrote as follows:

"Mr NAB continues to refuse to co-operate/sign a disclaimer which would enable removal. The case owner will now arrange for more assertive interviews to be carried out. Section 35 action should also not be ruled out together with a possible referral to the IDT team if this case meets their criteria."

58. Yet again, even in late October or into August, no section 35 action was commenced. The team leader wrote on 24 August:

"Mr NAB continues to refuse to co-operate/sign a disclaimer which would enable removal from the UK. There is no indication that the case owner has yet arranged for more assertive interviews to be carried out. This will be chased up. It is also unclear whether section 35 action has been further considered or whether possible referral to the IDT team has also been considered if the case meets their criteria. Both issues will also be chased up."

59. It follows that on the face of the records, in late August 2009, virtually a year after the claimant had been told he was liable to be prosecuted, if this entry is correct, not only had there been no prosecution, but there had been no steps towards preparing one. Not only had there been no more assertive interviews, but it was unclear whether that had even been contemplated or arranged by the "case owner" responsible for dealing with the claimant. It is impossible to avoid the conclusion that what was happening was simply drift.
60. On 14 September 2009, there was another review of the case. Under the heading "Progress since last review" appears the following:

"An interview was requested on 22 July 2009 to see if [Mr N] could be convinced to return to Iran. This interview was re-requested on 3 September 2009. Progression of this case is now in the hands of [Mr N]. The only barrier to his removal is his own refusal to sign a disclaimer at the Iranian Embassy. He has been informed on numerous occasions by immigration officers and by visiting caseworkers that he is only prolonging his own time spent in detention."

61. The report by the team leader reads as follows:

"I agree with the proposal to maintain detention. The case has been assessed under current guidance and is deemed unsuitable for rigorous contact management due to the high risk of absconding and re-offending to support himself financially and the high risk of harm to the public if released. The only barrier to his removal is his own refusal to sign a disclaimer at the Iranian Embassy which demonstrates his determination to frustrate the removal process. Should he sign the required disclaimer his removal could be effected within a reasonable timescale.

? maintain detention."

62. That is then reviewed by the "director grade 5":

"I have reviewed the case for Mr NAB and agree that, based on the presumption to release, he should remain in tension. His continued detention is a direct result of his behaviour and failure to sign a disclaimer."

63. So fully a year after the first threat to prosecute, more than 18 months after renewed detention against a background of 33 months' previous detention, there has not been a different approach to interview. There has been no further approach to the Iranian authorities to see if they would change their position. There has been no renewed threat of prosecution. There has been no actual prosecution, and there was no longer a realistic prospect of successfully achieving deportation, it seems to me.
64. In the light of that analysis of the evidence, I deal more briefly with the question of absconding and of the seriousness of offending and the impact on the claimant's mental health.
65. Mr Southey says there was positive evidence suggesting, the claimant would not abscond. There is something to this point, in that during the periods when he has been at liberty he did comply with the requirement to report to the immigration authorities. However, that clearly was not complete compliance, as the events surrounding the end of 2007 and the beginning of 2008 demonstrate. He was in breach of his licence and, although he reported, there does seem at least a genuine question mark over the address at which he was living for a period.
66. In relation to the offences of which he has been convicted, they clearly are not in the most serious bracket of offending, but it seems to me that indecent assault on two girls, attracting a 12-month prison sentence, is a sufficiently serious piece of offending to play a real part in the consideration as to whether or not someone should be released on bail. Certainly, if there had been a live prospect of achieving deportation, or a realistic plan for that, the level of this offending would not have persuaded me that matters had gone too far.
67. Next, the impact on the claimant's mental health is a significant matter, but he was being treated properly for that whilst in detention. Of course, remaining in detention for a long period, and indefinitely -- and that last is an important point -- is deleterious, or can be deleterious to someone's mental health. That I fully accept. But, again, it seems to me this is an ancillary consideration, to be taken seriously by the authorities if handling someone like this claimant, but not of prime consideration in this case.
68. In approaching the law in this case, I have regard to the principles initially set out in the case of R v The Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, which were restated by the Court of Appeal in the case of R (I) v Secretary of State for the Home Department [2003] 1 WLR 196.
69. Four key principles and a number of key factors are to be derived from Hardial Singh as restated in I. The four principles are that the Secretary of State must intend to deport and the power to detain is only to be used in furtherance of that purpose; secondly, that the detention is only lawful for a period which is reasonable in all the circumstances; thirdly, if it becomes apparent that the Secretary of State for the Home Department will not be able to deport in a reasonable period, detention should cease; and fourthly, the Secretary of State for the Home Department "must act with reasonable diligence and expedition", a phrase upon which I place emphasis as being relevant to this case.
70. The factors affecting the approach of the court to the operation of those principles were helpfully set out by Dyson LJ, as he then was, in paragraph 48 of I. They are, not surprisingly, the length of detention; the nature of the obstacles standing in the path of deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State; the conditions in which the detainee is being kept; the effect of detention on him and on his family; the risk of absconding if released; and the danger of re-offending if released.
71. I also draw helpful guidance from the case of WL (Congo) v Secretary of State for the Home Department [2010] EWCA Civ 111, where the court emphasised that a refusal of co-operation on the part of a potential deportee has the greatest importance, when it was material bearing on his removability.
72. I also have been reminded of, helpfully, the dicta of two members of the Court of Appeal in the case of R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. In this case I turn firstly to the judgment of Toulson LJ at paragraphs 54 and 55, where he said the following:

"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, there is 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."

Then paragraph 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 oversimplistic. 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."

73. At paragraph 79 of the report, in a concurring judgment, Keene LJ said the following:

"I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."

74. Doing the best I can to apply the principles stated by the higher courts, in this case the most important central element in the detention, justifying the detention for a long, long period, was the refusal of this claimant to agree to sign the relevant disclaimer and to return to Iran. The authorities would, without much more, be entitled to regard that as justifying detention because, as was said by Dyson LJ in I, it indicated a high likelihood or a high risk of absconding without other evidence.
75. In addition, detention was justified for a very long time both by his offending and thus by the realistic fear he would further offend, and by genuine and reasonable concern that he might abscond based on what happened on his release on licence from prison.
76. However, even given those factors, even given that there was a prospect of rapid deportation of this claimant in the event that he signed the disclaimer, and even given that it was entirely proper to detain him for an extended period while every step was taken to persuade him to agree, or to circumvent his refusal, there must come a time when such a sterile tactic as merely sitting and waiting while repeatedly urging him to change his mind, in the full expectation that he would not, ceases to be detention genuinely for the purpose of deportation. Certainly the woeful lack of energy and impetus applied to this case from at least the middle of 2008 means that it could not possibly be said that the Secretary of State on this occasion complied with the obligations set out in Hardial Singh and reinforced by the Court of Appeal in I to act with "reasonable diligence and expedition".
77. I add one further legal observation. Both counsel, with well prepared skeleton arguments and with a declining degree of enthusiasm in oral submissions, sought to take me to a range of single judge decisions, demonstrating that there were limits , expressed in comments by judges, to how long it might be appropriate to detain; or that there were cases of long detention on other facts and so forth.
78. For the reasons elegantly set out by Cranston J in the case of R (Davies) v Secretary of State for the Home Department [2010] EWHC 2656 (Admin) in paragraph 45, that is not an appropriate approach; not only because Court of Appeal authority is helpful to a single judge but the views of other single judges on different facts is much less helpful, but also because there are real risks in seeking to establish anything resembling a tariff.
79. The principles affecting how the Secretary of State should approach continuing detention I have touched on already. It cannot be right for the Secretary of State to be led to believe, by looking at a digest of the range of decisions that have been taken, that it is safe to detain for X months or X years.
80. Equally, it cannot be right for those who are in the position of being detained for considerable periods, stubbornly refusing to comply with the authority's requests to facilitate voluntary repatriation, to be put in a position of saying, "If I hold on another year, or two years, or three years, then I am all right". A tariff is repugnant and wrong, and it seems to me that it would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases.
81. I summarise my conclusions as follows. In this case there was a distinct lack of energy, drive, ingenuity and application on the part of the authorities, at least through the period running from mid 2008 into 2009. No active steps were taken for a year, despite endless rumination as to what they might be. The reviews give the impression of going through the motions. By September 2009 this claimant had been in custody for 19 months, following a break of approximately a month when he was free, preceded by 33 months' detention before that.
82. Those circumstances demanded either release or immediate and urgent action, pulling out every possible stop on the organ to achieve deportation. Neither happened. No decision was taken. The Secretary of State did not truly consider the legality of continued detention in those circumstances, and I find that, as from 14 September 2009, the detention was unlawful.
83. Having heard brief submissions on the question of damages, I intend to adjourn the question of the assessment of damages so that both parties can reflect on this judgment, consider what I have said and formulate how the arguments for and against damages should be presented.
84. MR SOUTHEY: My Lord, can I just make, firstly, one factual matter, and also just a comment in mitigation. Unfortunately one of the reasons why my skeleton argument took the position it did was that Cranston J's remarks in Davies were not available when I drafted it. Indeed, I have been attempt to read it for some time.
85. MR JUSTICE IRWIN: Sorry, I didn't mean to be overcritical.
86. MR SOUTHEY: No, I wasn't suggesting, but I just thought for future record I ought to record my mitigation.
87. MR JUSTICE IRWIN: The point goes far beyond what he said, actually, as I think I have made clear.
88. MR SOUTHEY: Yes. But I do take on board.
89. My Lord, the second point, just a slight correction. Your Lordship referred to the threat of prosecution under section 35.
90. MR JUSTICE IRWIN: Yes.
91. MR SOUTHEY: The date in fact was -- I think your Lordship said 4 September. It was actually 1 September, according to the document. More significantly, though, your Lordship referred to it as being a prosecution under the Immigration Act 1971.
92. MR JUSTICE IRWIN: Of course it's a different statute. When the transcript comes to be typed, I would ask the stenographer to take the title of that Act from its recital at the beginning of the judgment, rather than the later recital. It's the later Act which founds the offence, and to correct the date to 1 September.
93. MR SOUTHEY: My Lord, as your Lordship was delivering your Lordship's final remarks, I was about to take instructions. So these remarks are made slightly off the hoof, so to speak.
94. What struck me as I was listening to your Lordship's judgment, and as I was thinking about the point that had arisen potentially about the approach to damages in a case like this, is that there is arguably an issue of some importance as to the extent to which non-co-operation is taken into -- how it's taken into account in the assessment of damages.
95. MR JUSTICE IRWIN: Yes.
96. MR SOUTHEY: As a consequence, although I suggested effectively transferring it just into the normal QBD list, where it would go before a master, I'm not sure that actually makes sense.
97. MR JUSTICE IRWIN: Unless you have a very good argument, I'm going to keep it in the Administrative Court and I'm going to reserve it to myself.
98. MR SOUTHEY: My Lord, I was going to suggest that. Linked to that, can I also make a second suggestion? Can I suggest that the formal order, other than perhaps there being some sort of timescale set for exchange of skeleton arguments, et cetera, is purely that the case is adjourned? The reason I say that is if the decision as to when detention becomes unlawful were to be recorded in a declaration today, that would potentially put the claimant in a position where they would have to think about appealing from this judgment -- I'm not saying they would necessarily, but I'm sure just -- because that --
99. MR JUSTICE IRWIN: You mean you would rather wait and see the outcome on damages before you have to decide about an appeal?
100. MR SOUTHEY: My Lord, (1), that; but (2) if there were to be an appeal launched, it would be much more sensible if it could deal with all the issues that arise out of the case, rather than being a piecemeal appeal raising half of the case. I'm not saying there necessarily would be an appeal. I don't have any instructions, and that's why I'm saying this standing up. But it just seemed to me that, rather than potentially having the case go off in two directions at the same time, which would be the potential risk, it makes sense to not record your Lordship's decision in a formal declaration. The judgment will do in terms of --
101. MR JUSTICE IRWIN: The judgment is there. You know what the decision is.
102. MR SOUTHEY: Absolutely.
103. MR JUSTICE IRWIN: So it can all go in one order on one occasion later on.
104. MR SOUTHEY: Absolutely. That was my suggestion, my Lord, to deal with that.
105. As I say, far from seeking to persuade your Lordship it shouldn't be reserved to your Lordship, the complete opposite. I was going to suggest that --
106. MR JUSTICE IRWIN: It's not really fair to another judge, having got this far --
107. MR SOUTHEY: No. I had a similar thought as I was listening to your Lordship's judgment, that that made more sense.
108. My Lord, in terms of further progress of this matter, firstly, I think probably the parties will want to have a look at the transcript and may want to discuss matters between themselves. I don't know. I also suspect, knowing the state of the Administrative Court list, that getting a hearing before March next year is unlikely to happen.
109. MR JUSTICE IRWIN: Well, it will have to happen because I am out of London from this Friday until the beginning of next term --
110. MR SOUTHEY: Yes.
111. MR JUSTICE IRWIN: -- when I'm in London, and then from -- I think it's the second week in February, I'm out of London again until after Easter. So if you don't catch the period between January and mid-February, then either you leave London or it will be May.
112. MR SOUTHEY: My Lord, it may be a question of leaving London, both because of the Administrative Court availability and because of my own -- I know that my diary in early January and February, in relation to things that are, to be frank, more urgent than this, is basically full. My diary is basically full.
113. MR JUSTICE IRWIN: In that case then, what we will be able to do is, I'm sure, to have a hearing which will probably be in Liverpool or Chester.
114. MR SOUTHEY: Either of which --
115. MR JUSTICE IRWIN: Easily accessible.
116. MR SOUTHEY: Both of them.
117. MR JUSTICE IRWIN: And that could probably be done in the second half of next term.
118. MR SOUTHEY: Yes. It seems to me, given the difficulties of the court, given personal difficulties, that would seem to make sense.
119. MR JUSTICE IRWIN: Does that seem sensible to you, Mr Auburn?
120. MR AUBURN: Yes.
121. MR JUSTICE IRWIN: It can't be done before Christmas. If it can't be fitted in, and the court list would be a squeeze to fit in what might be an hour and a half, two hours -- it depends how much principle you --
122. MR SOUTHEY: Because this is something that has arisen during the course of today, I haven't really thought about how much learning, if any, there is on the subject. I pulled up one authority in an hour's work over lunchtime.
123. MR JUSTICE IRWIN: Could I just add this, to help both of you think about this? It seems to me that there is an interesting question of damages here, firstly, because it's a discretionary remedy in this court; secondly, because it seems to me there is an important principle. There may very well be separate considerations as to the lawfulness of detention, and yet as to whether you are talking about discretionary remedy or not, or whether you would be talking about damages in this court or not, the person who could at any moment be at liberty on his way to Iran, even if it becomes unlawful in the way that I've this case did, it's a different question as to whether he is entitled to compensation or to what degree.
124. MR SOUTHEY: Yes.
125. MR JUSTICE IRWIN: At the same time it will be obvious from the terms in which I have described what happened here that this is not a case where simply the case ran into the sand.
126. MR SOUTHEY: Yes.
127. MR JUSTICE IRWIN: This is not just effluxion of time, where everything was done, but deportation was not achieved through the efforts of the claimant.
128. MR SOUTHEY: Yes.
129. MR JUSTICE IRWIN: So I think it's quite a difficult or interesting exercise at least.
130. MR SOUTHEY: Absolutely, my Lord. That's sort of why I slightly was concerned about the idea of at this stage committing to an hour or two-hour time estimate.
131. MR JUSTICE IRWIN: Yes.
132. MR SOUTHEY: It seems to me at this stage it may be sensible to allocate a day, even if obviously we both --
133. MR JUSTICE IRWIN: A day? I would be reluctant to do that, Mr Southey, unless there's a well worked-out basis for it.
134. What I'll suggest is this, if I may.
135. MR SOUTHEY: Yes.
136. MR JUSTICE IRWIN: We adjourn now. We adjourn the case.
137. MR SOUTHEY: Yes.
138. MR JUSTICE IRWIN: The transcript will be prepared, and you will have it as soon as it's corrected. We need to decide whether the decision can be reported, or does that need to wait? Because there are those who will want to know that.
139. MR SOUTHEY: Yes.
140. MR JUSTICE IRWIN: There is an anonymisation of this case which has been given different forms, and we need to establish what it is and if it is to continue.
141. MR SOUTHEY: Yes.
142. MR JUSTICE IRWIN: Subject to all that, it seems to me that within 21 days both of you should submit a joint time estimate to my clerk, with dates when you can both achieve that time estimate, or a range of dates.
143. MR SOUTHEY: Yes.
144. MR JUSTICE IRWIN: And we will then try and fix a hearing, if necessary in the north or in London, depending on when that is. Then it probably will make sense, when that date is available, for directions about skeletons and so forth to flow from that.
145. So I would invite you, to submit dates. Once we fix a date, then within seven days of fixing the day you submit joint draft directions to me. If we have to join up on the phone for a directions hearing, of course we can, but it's probably easier between the two of you.
146. MR SOUTHEY: I'm sure, to be honest, we could probably agree something like 14 and seven days, or something like that, in advance.
147. MR JUSTICE IRWIN: That's right.
148. MR SOUTHEY: So I'm sure we can avoid that.
149. MR JUSTICE IRWIN: And a bundle of authorities.
150. MR SOUTHEY: And a bundle, yes.
151. MR JUSTICE IRWIN: Because the skeletons in this instance will be useless unless they cite the authorities. There's just no point.
152. MR SOUTHEY: Absolutely. My Lord, just in terms of that direction, the one thing I'm conscious of, and I suspect my learned friend has a similar problem with it, is the nature of Admin Court practice, giving dates to avoid. By the time the court takes advantage of the dates, the list can be out of date. I wonder if the more sensible thing is for my clerks and my learned friend's clerks to come up with an agreed couple of dates, speaking to your Lordship's clerk direct.
153. MR JUSTICE IRWIN: That's what I was meaning.
154. MR SOUTHEY: Sorry, I thought your Lordship was suggesting we submitted a list of dates where we are free, and my learned friend did, and the problem I have about that is that by the time the list is looked at, quite often dates that were originally identified as being free --
155. MR JUSTICE IRWIN: I'm sure suggesting that on a given day, you both submit some dates that you could do to my clerk, not to the list office, and we will deal with it quickly.
156. So if I can ask both of you then to draw up an order with those directions in.
157. MR SOUTHEY: Yes.
158. MR AUBURN: My Lord, in relation to anonymity, there have been a number of orders of the court, including, coincidentally, one by yourself.
159. MR JUSTICE IRWIN: Yes. I had totally forgotten that.
160. MR AUBURN: I wouldn't expect you to. Page 1.19, order 3.
161. MR JUSTICE IRWIN: Yes.
162. MR AUBURN: And that was continued in another order by yourself.
163. MR JUSTICE IRWIN: Well, 1.19 is not me. That's Charles J.
164. MR AUBURN: That was continued later on by yourself, I think, at 1.24.
165. MR JUSTICE IRWIN: Well, whatever it is, if the order is pursuant to CPR rule 39(2), until further order the claimant is not to be identified and to be referred as "NAB". Let it stay as that.
166. MR AUBURN: And in terms of publication of the decision, if the order is to be anonymised in terms of the name, I'm not aware of any circumstance why --
167. MR SOUTHEY: Certainly I can see no reason why the judgment --
168. MR JUSTICE IRWIN: For those who are listening, if there is anyone interested, the fact that the case is adjourned and that no order has yet been made does not prevent any reporting.
169. Anything else for now?
170. MR SOUTHEY: My Lord, no.
171. MR JUSTICE IRWIN: Costs reserved, obviously, until the further hearing.
172. MR SOUTHEY: Yes.
173. MR JUSTICE IRWIN: Good. Thank you very much.