QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| THE QUEEN (on the application of
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Colin Thomann (instructed by Treasury Solicitor) for the Defendant
Hearing dates: June 8th, June 10th and July 25th 2011
Crown Copyright ©
John Howell QC:
|The evidence in this case||-|
|(i) false and misleading evidence filed on behalf of the Secretary of State||-|
|(ii) the care with which the statements filed on behalf of the Secretary of State were prepared||-|
|(iii) what the Secretary of State's evidence does not deal with||-|
|(iv) other material available on which to determine the issues||-|
|The legal framework||-|
|(i) the ingredients of the tort of false imprisonment|||
|(ii) statutory provisions which may authorise the detention of those to be deported|||
|(iii) the substantive limitations on detention which may be authorised by or under paragraphs 2(2) and (3) of Schedule 3 to the Immigration Act 1971||-|
|a. the second Hardial Singh principle||-|
|b. the third Hardial Singh principle||-|
|c. the legal effect of a failure to comply with the fourth Hardial Singh principle||-|
|(iv) the significance of an unlawful exercise of the discretion to detain||-|
|(v) the significance of the statutory requirement to detain||-|
|(vi) damages for loss of liberty in the event of false imprisonment||-|
|(vii) Article 5 of the ECHR|||
|(ii) the Claimant's activities in this country||-|
|(iii) the Claimant's opiate dependence and his mental health||-|
|(iv) the effects of immigration detention on the Claimant||-|
|(v) the likely consequences of the Claimant's release from detention||-|
|Returning undocumented individuals to Algeria||-|
|The Attempts to get an ETD for the Claimant||-|
|(i) the first application made in about March 2003||-|
|(ii) the second application made in June 2007||-|
|(iii) the third application made in April 2009||-|
|(iv) efforts to prepare a further application||-|
|(v) whether the Claimant has sought to frustrate the process by supplying false or misleading information||-|
|(vi) facilitated voluntary removal|||
|(vii) whether the Secretary of State has acted with reasonable diligence and expedition||-|
|Whether the Secretary of State had power to detain the Claimant||-|
|(i) whether there was ever a realistic prospect of removing the Claimant within a reasonable period||-|
|(ii) whether there was subsequently any realistic prospect of the Claimant's removal within a reasonable period||-|
|(iii) whether the Claimant's further detention was justified when this claim was heard||-|
|The significance of the unlawful exercise of any discretion to detain which the Secretary of State had||-|
THE EVIDENCE IN THIS CASE
(i) false and misleading statements in the evidence filed on behalf of the Secretary of State
"7. The Family Tracing unit came into being partly because of a perception that the Algerian authorities could not carry out the level of checks necessary to gain supporting evidence for an ETD application. This has recently included searches of the Algerian criminal and population databases. The first such submission was achieved on 1st September 2010. Since that date, the Defendant has had a growing ability to submit fingerprints via the British High Commission in Algiers directly to the Algerian Police for fingerprint comparisons to be conducted on both the population and criminal databases held in Algeria.
8.....On January 5th 2011, those previously engaged in the investigation of the Claimant on advice given by this team submitted the Claimant's fingerprints via the British High Commission in Algiers to the Algerian authorities for searches to be conducted on both the criminal and population databases. On 22nd March 2011, the Claimant was advised that there was no match on the criminal database but searches were continuing. From previous such submissions searches can take anywhere from three to twelve months.....
10....the case has recently been referred to this specialised investigation team. The focus of this investigation will be on the Bengemaa identity...The strategy of this investigation will be to discover evidence that supports the Claimant's Algerian citizenship. It will not only await the result of the fingerprint search of the Algerian population database but will seek through proper tasking of the Family Tracing Unit the Claimant's surviving family in Algeria."
(1) In the first of these statements Ms Zanotti stated that there had been three applications for an ETD made to the Algerian authorities. The last of these, it was said, had been made on October 28th 2008. Mr Thomann told me that this was incorrect (although the claim had also appeared in the Defendant's Summary Grounds). No application for an ETD was made on that date. In fact the last application for an ETD appears to have been made on April 30th 2009.
(2) In her statement Ms Zanotti also stated that on December 10th 2010 the Claimant's fingerprints were obtained and passed to the "Family Tracing Unit" to pass to the International Co-operation Bureau in Algiers with a view to confirming the Claimant's nationality. She also referred to other enquiries with the Algerian Family Tracing Unit and what the Family Tracing Unit in Algiers had said to the UKBA about the likelihood of the Claimant's fingerprints being on a population database in Algeria. In Mr Coy's first statement he stated, as I have mentioned above. that "the Family Tracing Unit came into being partly because of a perception that the Algerian authorities could not carry out the level of checks necessary to gain supporting evidence for an ETD application". In the third statement filed on behalf of the Secretary of State made by Ms Jones, she said that in fact "there is no specific Family Tracing Unit". No explanation was then provided of how the two earlier witness statements had apparently referred to a Unit of which enquiries had been made and from which information had been received which did not in fact exist. In her second statement made on July 20th 2011 Ms Jones suggested that the explanation might be that the work conducted by her team to verify information provided by Algerian Foreign National Prisoners was initially called the Algerian family tracing project by her team (which began work in late 2009). This team apparently consisted initially of a Foreign Office official and an Algerian national, and, since April 2011, simply an Algerian national, working in the British Embassy in Algiers who spend part of their time checking ETD applications for basic errors such as spelling mistakes, occasionally trying to obtain more information over the telephone from a detainee, in some cases requesting a fingerprint match from the Algerian police and where appropriate referring up to six cases a month to an NGO for further checks.
(ii) the care with which the statements filed on behalf of the Secretary of State were prepared
(iii) what the Secretary of State' evidence does not deal with
"54.....We are, after all, here concerned with liberty. Where liberty is in issue the court should not be left to try and make findings as best it can on inadequate evidence. The court should not be left... having to draw inferences; and if the court is left in this position, some explanation should be forthcoming as to why it is.
55. This is far from being the first occasion when the judges have had to complain about deficiencies in the Secretary of State's response to claims such as the one which is before us. If, despite all this, the court is again left having to draw inferences in such a situation, then the Secretary of State should anticipate that the inferences drawn may well be adverse to him. And that, I have to say, is a very concerning state of affairs; concerning not merely for the reasons I have mentioned but concerning also because it means that on some future occasion an unmeritorious claimant who, in truth, has no legitimate cause for complaint may, because of the way in which the claim is handled by the Secretary of State, recover, and, moreover, recover at the expense of the public, damages and costs to which he is not entitled."
In addition, by inevitably increasing the time required to deal with a case, such a state of affairs not merely adds unnecessarily to the costs of litigation but also consumes more judicial time than the case should require to the disadvantage of other litigants.
(iv) the other material available on which to determine the issues
THE LEGAL FRAMEWORK
(i) the ingredients of the tort of false imprisonment
(ii) statutory provisions which may authorise the detention of those to be deported
"(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph ....(2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)".
(iii) the substantive limitations on detention which may be authorised by or under paragraphs 2(2) and (3) of Schedule 3 to the Immigration Act 1971
(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) the individual 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 a reasonable period, he should not seek to exercise the power of detention; and
(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.
a. the second Hardial Singh principle
b. the third Hardial Singh principle
"there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention.... if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful."
"Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors."
As Richards LJ also later observed at [68(v)], however,
"As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention."
c. the legal effect of a failure to comply with the fourth Hardial Singh principle
(iv) the significance of an unlawful exercise of the discretion to detain
(v) the significance of the statutory requirement to detain
(vi) damages for loss of liberty in the event of false imprisonment
"exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies..., it is inevitable that the appellants would have been detained. In short they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages."
Ms Harrison submitted that the issue was one of law for the court, was there lawful justification for the detention, and that the Secretary of State should not be relieved of the responsibility of showing that was the case.
(vii) Article 5 of the ECHR
(ii) the Claimant's activities in this country
(iii) the Claimant's opiate dependence and his mental health
(iv) the effects of immigration detention on the Claimant
(v) the likely consequences of the Claimant's release from detention
"The prognosis of [the Claimant's] opiate dependency depends primarily on his motivation to come off drugs and the quality of the support he obtains in doing so. It seems clear that [he] has been provided with considerable and appropriate support in his attempts to come off opiates both in the prison setting (during at least one previous sentence as well as the one which was succeeded by his current immigration detention) but has consistently failed to remain drug-free. Indeed on several occasions he has been noted to have broken the rules of the detoxification contract. In the light of this the prognosis of his opiate dependency is poor."
Professor Katona added that "if released into the community he would almost be certain to resume drug taking unless he was helped to find substitute activities (such as regular employment) and social contacts."
RETURNING UNDOCUMENTED INDIVIDUALS TO ALGERIA
"• Where applications are referred to Algeria the Algerians have stated in previous meetings that the last known address and the applicant's place of birth would be checked hence the importance of the address details we submit. The Algerian consulate rejects applications that fail to have a name, surname, date and place of birth, parents names and last known address.
• The province, district and Municipality must be correctly provided and spelt
• The subject's finger prints can also be compared against a central database in Algeria as part of the verification checks the Algerians undertake."
(1) The first document is dated July 11th 2007. It suggested "that many undocumented Algerian nationals cannot be removed without extreme delays" and that "significant numbers of undocumented Algerians are being detained for long periods of time without apparent progress in effecting removal". These conclusions were based on a survey of 22 Algerian detainees. They were said each to have been detained on average for 14 months but in only one case had a detainee been removed (in his case after a period of 28 months in detention). Others were said still to be in detention after periods of 19, 20, 29 and 77 months.
(2) The second document was produced by the same Group in March 2008 in which it was again suggested, based apparently on a survey of 25 detainees, that many undocumented Algerian nationals could not be removed "without extreme delays". The average length of detention in these cases was apparently 18.5 months and in only three cases had the detainees been removed after periods of 9, 28 and 38 months in detention respectively. Others had been in detention for periods of 24, 37 and 77 months.
Assuming that the four removals achieved were indeed separate cases, on average it took 25 months to secure their removal after they had been detained. This might be compared with the average period of 14 months between the last application for an ETD and removal in the case of those administratively removed in 2008 given in Mr Thomann's statistics. The remainder of those surveyed had not been removed. The time given for the average length of detention also tends to suggest that the position had got worse between July 2007 and March 2008.
(1) The Secretary of State may make enquiries of other United Kingdom authorities, such as HMRC and the DVLA.
(2) The Secretary of State may check fingerprints on the EURODAC system which came into operation in January 2003. This contains a central database containing the fingerprints and certain other information about asylum applicants and persons who have been apprehended in connection with an irregular crossing of an external border of the European Union.
(3) The Secretary of State can make enquiries through Interpol and SOCA to ascertain if there are criminal records relating to the individual.
(4) The Secretary of State can employ specialists to help investigate. The Secretary of State's evidence is that she now employs a specialist team, called the Country Specialist Investigation Team who specialise in following investigative strategies that supply this type of evidence and that this team has a "better track record" of obtaining ETDs for Algerian nationals (than presumably other parts of the UKBA). The investigations carried out by this unit are apparently far more intensive than those carried out by "normal caseowners". This team was apparently formed in 2009 following a merger of two other teams, the Country Tracing Unit and the IDT. In addition, as I have mentioned, the Secretary of State has been able to call on the assistance of individuals in the UK Embassy in Algiers to help with verification work and through them to send 6 cases a month to an NGO in Algeria for it to make further checks and investigations.
THE ATTEMPTS TO GET AN ETD FOR THE CLAIMANT
(i) the first application made in about March 2003
(ii) the second application made in June 2007
(iii) the third application made in April 2009
(iv) efforts to prepare a further application
(v) whether the Claimant has sought to frustrate the process by supplying false or misleading information
(vi) facilitated voluntary removal
(vii) whether the Secretary of State has acted with reasonable diligence and expedition
(1) Following Claimant's interview by the Algerian authorities on November 5th 2009, it was clear that the Secretary of State would have to obtain further information herself if any application for an ETD was to have any hope of success. Although the verification work by individuals in the United Kingdom Embassy in Algiers was instituted in late 2009, the Claimant's case was not referred to them until April 29th 2010 and no reference was made to the NGO in Algeria for further investigations until October 1st 2010. Similarly, although SOCA was asked to check against records held in other countries in January 2010, it does not appear that they instituted checks on the Algerian criminal fingerprint database until July 16th 2010, although it was an obvious place to check. Ms Zanotti gave no explanation for these delays.
(2) The Claimant's case was obviously one with which caseworkers dealing with it were not having success. The Secretary of State has had specialist teams dealing with cases such as this. The current team since some point in 2009 is the Country Specialist Investigation Team. No explanation has been provided why the Claimant's case was only transferred to such a team on March 17th 2011.
WHETHER THE SECRETARY OF STATE HAD POWER TO DETAIN THE CLAIMANT
(i) whether there was ever a realistic prospect of removing the Claimant within a reasonable period
"likelihood of removal within a reasonable time scale (outline details of barriers to removal, including availability travel documentation, and likely time needed to resolve these"
True it was that the Secretary of State was awaiting the outcome of the application for an ETD made in March 2003. But in my judgment there was no realistic prospect of that application being successful in the circumstances. Moreover, given the time which had elapsed since it had been made (over 3 years), the Secretary of State should have realised at the time that that outstanding application was virtually certain to fail: see paragraphs -,  and  above. That was no doubt why the Claimant had previously been given temporary admission repeatedly, notwithstanding his continued offending and his continuing failure to comply with the conditions imposed on the temporary admissions which he was granted.
(ii) whether there was subsequently any realistic prospect of the Claimant's removal within a reasonable period
"[the Claimant's] detention can be lawfully maintained while steps are taken to obtain a travel document so long as the SSHD seeks to progress this. It is [the Claimant's] continued failure to co-operate with the ETD process which has prevented his earlier removal to Algeria. Were he to provide verifiable information, it would allow UKBA to reapply for an ETD and, once this was agreed, removal directions could be set immediately".
The Claimant's failure to co-operate has prevented his removal to Algeria. But it is not the case that this meant that his detention remained lawful so long as the Secretary of State was taking steps to obtain a ETD regardless of whether there was any realistic prospect of securing such a travel document and deporting the Claimant within a reasonable period, even one made longer than it otherwise would have been by his lack of co-operation. Such an approach would elevate such a lack of co-operation into a "trump card" justifying indefinite detention for so long as there may be something which the Secretary of State may do which may result in an individual's removal, regardless of whether it provides a realistic prospect that the individual will be removed before he has been detained for an unreasonable period. It could involve (as in this case) a loss of liberty as the result of the exercise of an administrative discretion for a period far in excess of the maximum sentence that could be imposed following conviction on indictment for failure to co-operate without a reasonable excuse in obtaining a travel document under section 35 of the 2004 Act. In my judgment Ms Harrison's complaint that the third Hardial Singh principle had been neglected by those responsible for authorising the Claimant's detention was in fact well-founded. Its importance and implications were not sufficiently recognised by those involved in this case.
(iii) whether the Claimant's further detention was justified when this claim was heard
THE SIGNIFICANCE OF THE UNLAWFUL EXERCISE OF ANY DISCRETION TO DETAIN WHICH THE SECRETARY OF STATE HAD
"mental health issues only fall to be considered under [this policy] where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. Thus consideration must be given to the nature and severity of any mental health problem and to the impact of continuing detention on it."
Cranston J's second point was that the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. Factors such as the risk to the public from further offending and the risk of absconding do not cease to be relevant but that the effect of the policy was "that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified": see at -, . Cranston J's analysis of the policy was endorsed on appeal by Black LJ in Anam v the Home Secretary  EWCA Civ 1140 at .