England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre 1 Oxford Row, Leeds LS1 3BG
		24/11/2011

HH Judge Roger Kaye QC:

Introduction

1. This is another worrying case of a foreign national, a Moroccan, the claimant, who has been in this country since about 1979 and who has been detained in custody first at HMP Peterborough then at the Lindholme Immigration Removal Centre since 4 June 2008 as a foreign national prisoner ("FNP") under the provisions of Schedule 3, paragraph 2(2) of the Immigration Act 1971, as amended, pending deportation. He seeks an order quashing the decision of the defendant Secretary of State for the Home Department (SSHD) to continue to detain him pending a decision of the Upper Tribunal on his appeal against a deportation order made on 4 June 2008 and damages.

The Facts

2. The claimant was born in Morocco on 5 June 1971. His father and mother, both Moroccan nationals, came to the UK in the late 1960s or early 1970s and remained. It is not in issue that they were granted the right shortly after they arrived to remain permanently in the UK. Both have retained family and other links with Morocco but, although neither has ever applied for British citizenship, both have largely made the UK the centre of their lives since their arrival.
3. The claimant has two brothers: one elder and one younger. The elder was also born in Morocco (in 1968) and also lives in the UK. The younger was born in the UK.
4. The claimant came to the UK with his mother in about 1978 or 1979 aged 7 having completed 2 years schooling in Morocco. He completed his education in the UK, left school at 16 (1987) and went to college for about a year. In 1988 he started to work in a variety of jobs mostly connected with the hotel trade. Every year it was the family custom to return to Morocco for an annual holiday for some weeks.
5. After he left school, the claimant started, by his own admission, to hang around with the wrong people and to indulge in petty theft. His father was so concerned about his son that in 1988 or 1989 he arranged an engagement between his son and a Moroccan cousin in the hope that a wife would present some stability in his life. The claimant went to Morocco to complete the necessary paperwork to register the engagement. He gave his father's local address. "[I]t was easier to give my Father's home address in Morocco" he said in a witness statement made in connection with his appeals against deportation of the 19 November 2008^[1]. The marriage itself did not however take place until August 1989^[2].
6. The claimant's wife (also a Moroccan national) does not seem to have had much success in meeting his father's hopes, perhaps largely because she remained in Morocco. The life of petty crime embarked upon by the claimant had already earned him a conviction in March 1989 for theft by an employee for which he was fined. He was convicted again in December 1989 also for theft. Between then and 2007 (almost 20 years) there is a regular and depressing history of repeated offending. The offences in the early years included theft, burglary, possession of obscene articles for gain (after hotels the claimant graduated to adult shops) but also two convictions for failure to surrender to bail (in 1992 and 1995).
7. In 1996 the claimant's wife was brought to England. Their first child was born on 16 December 1997, their second on 13 June 2002 and their third on 8 July 2006. All the children were born in the UK and are British citizens by birth.
8. The claimant's offending however continued. He accumulated convictions for handling (1997), burglary (2002), and attempting to obtain property by deception (2005). He was also convicted in June 1998 of unlawful sexual intercourse with a girl under the age of 16. He was then aged 27 and the girl 14. He was sentenced to 240 hours community service which he completed but not a training programme which went with it (owing to work commitments) resulting in the sentence being discharged and substituted for 12 months conditional discharge.
9. The marriage in the meantime was also failing. Following the birth of his second child the parties temporarily separated (though they continued to meet at weekends enabling him to see the children). In 2006 the claimant was convicted for indecent exposure following a plea of Not Guilty and a trial. He was sentenced to 8 months imprisonment and placed on the sex offenders' register for 10 years. Following this the claimant's wife now separated from him permanently and commenced divorce proceedings, the parties eventually being divorced in Morocco in August 2007. The children also came to the attention of the local authorities and were, for a time, placed on the at risk register (they were removed in January 2008 following the imposition of a later term of imprisonment on the claimant). It also appears that when on bail for the exposure charge the claimant failed to report to the police.
10. In the meantime, it seems around 1998 or 1999 the claimant obtained a 10 year Moroccan passport which the UK authorities stamped with a stamp on the face of it entitling him to remain in the UK with no time restriction. No steps were taken to deport him following the conviction in 2006 on completion of his prison sentence.
11. Within a relatively short time of release in November 2006 the claimant offended again. In November 2007 he was convicted of failing to notify his change of address whilst on the sex offenders register. He was moving from an hotel to a hostel and says he forgot^[3]. In December 2007 he was also convicted of a domestic burglary following a Guilty plea for which he was sentenced in January 2008 to 9 month's imprisonment. His pre-sentence report (PSR) assessed both his risk of re-offending within 2 years and the risk of harm towards members of the public as "medium" but also referred to his impulsive behaviour and lack of thought for the consequences of his actions. By this time the claimant had 20 convictions for over 20 offences.
12. By June 2008 the claimant had completed half his sentence and was due for release. Since his conviction for exposure he had continued to see his children but under supervised conditions. He had not seen them in prison but had daily contact by letter or telephone.
13. In the meantime however, despite the decision in November 2006 not to deport him following the conviction for indecent exposure, the Secretary of State had now resolved to consider his deportation. The claimant was served in February 2008 with a letter of liability for deportation. By his release date in June it had been decided to make a deportation order following the making of which he was moved first to HMP Peterborough and later to Lindholme Immigration Removal Centre. He has remained in detention since 9 June 2008.
14. The decision to deport the claimant was made under s 3(5)(a) Immigration Act 1971 (as conducive to the public good). It is clear from the contemporary documentation that the Secretary of State was then concerned about three matters: the absence of any evidence he had indefinite leave to remain in the UK, the absence of evidence about his family circumstances, and his history of offending including his bail offences and failure to notify his change of address. The reasons^[4] authorising detention were his being a foreign national "recidivist offender" in view of his history of offending including convictions for sexual and burglary offences and, as matters then stood, the lack of evidence supplied in support of his claims to rely on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (right to respect for private and family life).
15. The claimant promptly appealed against the decision to deport him as incompatible with his Article 8 rights. This was heard by the Asylum and Immigration Tribunal (AIT) on 28 August 2008 and dismissed^[5]. He was unrepresented. The AIT accepted that the claimant had lived in the UK "for a lengthy period". Nevertheless the AIT expressed the view that, despite the assessment in the PSR the personal criminal conduct of the claimant justified deportation on public interest grounds. There were no exceptional circumstances under Article 8 which outweighed that consideration: the claimant maintained links with Morocco, he used his father's address (above), his family had visited Morocco, and his deportation met a legitimate aim of maintaining immigration controls and protecting the community.
16. At the same time as detaining him the Home Office, in the absence (then) of any passport or copy passport from the claimant, set about trying to obtain Emergency Travel Documentation (ETD) to facilitate his return to Morocco.
17. The claimant obtained legal representation in October and set about appealing and applying for bail. He also refused to co-operate over the obtaining of ETD on the grounds he did not wish to be deported. His application for reconsideration was dismissed (as out of time) and his first two bail applications were withdrawn. The claimant then renewed his application. Plender J on 11 December 2008 ordered the Tribunal to extend time and to reconsider the claimant's appeal on the grounds that if his wife and children were to give evidence of their relationship with the claimant the AIT might come to a different conclusion on the question of family unity^[6].
18. By this time the Home Office had also invoked the assistance of the Children's Champion to support a proposition that the family could and should be split. This was apparently agreed to by the Children's Champion but only on the basis that a family life did not exist prior to detention^[7].
19. Prompted by the decision of Plender J the claimant sought release, made a fresh application for bail and obtained a signed witness statement of support from his ex-wife (in English despite the fact that she implies she does not or did not speak English)^[8]. Although the Tribunal ordered reconsideration on 2 March 2009^[9] his applications for release and bail were refused.
20. 2009 is littered with delays over the date for reconsideration. The fire at the offices of the AIT at Field House in London in March no doubt contributed to the delay. The claimant continued to refuse to co-operate over the issue of the travel documentation. The reconsideration case was transferred to London, then to Bradford, and then vacated in December 2009 owing to his ex-wife being on holiday. In the meantime June 2008 it appears that the Home Office had obtained copies of the claimant's now expired Moroccan passport. A further application for bail in September was refused. Despite this and incarceration, it appears that the claimant was able on occasions to see and have some contact with his children.
21. The reconsideration hearing eventually took place in January 2010 and was again dismissed^[10]. In March the AIT refused permission to appeal to the Court of Appeal^[11]. The claimant applied to the Court of Appeal. In June 2010 Richards LJ granted permission to appeal^[12] on the grounds the Tribunal had fallen into "material legal error" particularly having failed to carry out a proper balance between his claim to private life over 30 years in the UK as against his record of offending at a "relatively low level of seriousness". It was not self-evident that a proper balancing exercise would lead inevitably to a finding that deportation was proportionate. The appeal to the Court of Appeal was subsequently allowed by consent in November 2010 and remitted for a fresh hearing to the Upper Tribunal, the third time now that the claimant's appeal against deportation will have been considered.
22. This pending third hearing, too, has been bedevilled by delays. A still further bail application (by now the seventh) was refused in April 2011. In June the claimant's advisors considered that they needed the report of an independent social worker to assist their case. Although meetings have taken place the report is still not complete, though I was told it was in an advanced state of preparation. The delay in obtaining the report led the claimant to seek (and obtain) an adjournment of the Tribunal hearing fixed for September. No new date had been fixed as at the date of the hearing before me but I have since been informed that a new date, 6 January 2012, has now been established.
23. In the meantime the claimant applied on 25 May 2011 for judicial review of the decision of the SSHD to maintain his detention. Permission to make the application was granted on 4 August 2011 by HHJ Behrens. This hearing, too, was delayed, largely again because the claimant wished to amend his grounds. The hearing of 20 September 2011 was accordingly vacated and re-listed before me on 27-28 October 2011.

The Legal Framework

24. There is no issue as to the law, only its application.
25. Under s 3(5)(a) Immigration Act 1971 as amended the SSHD may deport foreign nationals from the UK if she deems the deportation to be conducive to the public good. Pending deportation the proposed deportee may be detained under Schedule 3, para. 2.
26. The starting point in my judgment is the liberty of the individual. With that fundamental principle in mind the relevant legal framework and principles under which these powers of detention are to operate has been stated on a number of occasions and are principally set out in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 ("the Hardial Singh principles"). These principles were summarised by Dyson LJ in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 at paragraph [46] and approved by a majority of the Supreme Court in R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671 at p. 683, para. 22 ("Lumba").
27. These principles are so far as relevant to this case:

•    First, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

•    Second, the deportee may only be detained for a period that is reasonable in all the circumstances (to which I would add for present purposes the burden of proof being on the Secretary of State to show there was lawful justification for the detention in the first place and for maintaining it: see Lumba per Lord Dyson JSC at p. 688, paras. 42, 44; p. 693, para 65; p. 698 para 88);

•    Third, 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, she should not seek to exercise the power of detention;

•    Fourth, the Secretary of State should act with reasonable diligence and expedition to effect removal.

28. This case is largely concerned with the second and third of these principles.
29. Every case of course depends upon its own facts, but in assessing whether a reasonable period of detention has elapsed in the circumstances, the parties agree, correctly in my view based on Lumba, that it is legitimate to look at all relevant circumstances which include the likelihood of absconding, the risk of re-offending and the protection of the public from the risk imposed by release. Consideration of the overall delay is also important, more weight being given on the side of considering the delay unreasonable where during the period of delay in question the detainee had been or was pursuing a meritorious appeal rather than a hopeless one (see Lumba at p. 707, para. 121 per Lord Dyson). Other factors that may be relevant, depending as ever on the history and particular circumstances involved, include whether or not the detainee has refused to co-operate with voluntary repatriation or in obtaining travel documents facilitating his return.
30. As was settled in the Lumba case, if the detention and imprisonment is without justification, then the SSHD was liable for the tort of false imprisonment.

The Issues

31. The claimant's starting point is that on any basis his detention between June and September 2008 was unlawful since this was a period during which the defendant applied an unlawful blanket policy to FNPs of detention pending deportation.
32. Such is now accepted on behalf of the defendant. It is therefore common ground that between June and September 2008 the claimant was detained under an unlawful and unpublished blanket policy of detention of all FNPs on completion of their sentences of imprisonment in conflict with the defendant's published policy. (The published policy was a presumption against detention; the unpublished policy was the opposite: see Lumba (above).) The claimant claims damages for this period of detention. The defendant accepts that nominal damages for false imprisonment are due at least but resists the claim for exemplary or "vindicatory" damages (as explored in Lumba) on the grounds that had the correct principles and policies been applied the claimant would inevitably have been detained and accordingly (as in Lumba) the claimant would have suffered no loss or damage as a result of the unlawful exercise of the power to detain.
33. For present purposes, however, the parties are in agreement that I should consider solely the question whether the claimant's continued detention is reasonable or whether he should now be released. Issues as to damages can await the outcome. (Though Mr Schwenk on behalf of the claimant also asks me to consider, with the issue of damages in mind, at what point in time the claimant's detention became unreasonable.)
34. In giving these matters due consideration it is also common ground that the task of the court is not limited to a review of the Secretary of State's decision-making on Wednesbury grounds, but also extends to an objective consideration as to whether in all the circumstances the claimant's detention or continued detention was or is in fact unreasonable: see R (A)(Somalia) v SSHD [2007] EWCA Civ 804 at paras. 71-75 per Keene LJ.
35. The issues I thus have to determine seem to me:

•    Was the claimant's original and maintained detention from June to September 2008 justified on the application of the correct principles and policy?

•    Is his continued detention justified?

•    If not, at what point in time did his detention become unreasonable?

The Claimant's Contentions

36. Mr Schwenk in a wide-ranging and detailed argument on behalf of the claimant makes a number of criticisms of the detention of the claimant and submitted in summary that:

•    The claimant's substantive case cannot be categorised as hopeless;

•    The initial detention was unlawful;

•    The continued detention of the claimant after September 2008 was unreasonable and unjustified;

•    The delays and elapsed time should not to be held against him;

•    The risk of re-offending, of absconding and harm to the public is minimal particularly in the context of his lengthy period of residence in the UK and his desire to stay;

•    His failure to co-operate with the ETD process is not to be held against him for the same reasons;

•    The refusals to grant him bail should not be held against him;

•    The defendant has failed to review the claimant's detention in line with her own policy with the proper degree of care or robustness;

•    Looked at now, the claimant's continued detention is on any basis unreasonable and must, at some time after, if not in September 2008, have become and is certainly now unreasonable.

The Secretary of State's Case for Initial Detention and for Maintaining Detention

37. Miss McGahey on behalf of the Secretary of State submits that the decision to detain the claimant at the outset, and indeed the continued decisions to maintain his detention, have been entirely consistent throughout, and moreover justified in summary as follows:

•    The claimant was a recidivist offender, unlikely to comply with any terms or conditions of his release and was therefore likely to abscond (or as Miss McGahey for the Secretary of State put it, "go to ground") and had a weak claim based on his Article 8 rights and assertions as to his family ties;

•    The claimant had failed to co-operate with the request to assist in obtaining ETD

38. Moreover, she submits:

•    The delays have been contributed to by the claimant's applications for adjournments;

•    There has at all times been a realistic prospect of removal even though it has not always been possible to specify or predict a date on which removal might take place;

•    The reviews have been carried out properly;

•    The refusal of bail at least is supportive of and consistent with the Secretary of State's decision to maintain detention;

•    Looked at overall, the continued detention is not unreasonable.

Discussion

The Initial Detention

39. At the outset in June 2008 the immigration history and personal circumstances of the claimant were not entirely clear to the immigration officials. In this respect the reasons were partly due, as it seems to me, to the lack of proper records in the defendant's own department (there was for example apparently no record of the claimant having been given indefinite leave to remain despite the stamp that emerged on his passport setting no time limit on his residence in the UK) and partly due to the claimant's lack of detail and supporting evidence as regards his own personal and family circumstances which tended to emerge in dribs and drabs over time.
40. In deciding whether, despite the application of the unlawful policy to the claimant in June 2008, his detention would have been justified (rendering his unlawful detention not lawful but so as to result in no loss to him), again it is common ground that the relevant test is whether, on the balance of probabilities, the claimant would have been detained: see R (OM)(Nigeria) v SSHD [2011] EWCA Civ 909 CA.
41. I am in no doubt that, viewed as at June 2008 and on the material then available to the Secretary of State, the decision to detain and to maintain the detention of the claimant to September 2008 would have been inevitable. He had over 19 convictions mostly for theft and some sexual offences. True there had only been three periods of imprisonment imposed, but the whole history of offending over almost 20 years was consistent and continued, well justifying his description as a "recidivist". There were also at least two convictions for failure to surrender to bail, and one of failing to notify his change of address when on the sex offenders' register, all of concern in the context of risk of absconding. Given these and the potential risk of harm to the public from the theft, burglary and sexual offences history and the then lack of evidence of family ties (he was divorced, not living with his wife, and had apparently little contact with his children other than indirect) I consider the case for detention in any event is more than made out by the defendant.

Post September 2008

42. I therefore turn to the position after September 2008. Here again all the relevant facts and surrounding history and circumstances fall to be considered, the most relevant (and those most pertinent to the decision to maintain detention) being the prospects of the claimant's removal, the claimant's substantive case, the overall period of delay and the factors contributing to it, the lack of co-operation as regards the ETD, the risks of his re-offending and absconding.

The Prospects of the Claimant's Removal

43. Detention is lawful on the Hardial Singh principles so long as there is a reasonable prospect of the claimant being removed from the UK in a reasonable time.
44. In this context it is legitimate in my judgment to have regard to the relative merits of the case on each side and subject to that the prospect of removal in a reasonable time even if there is no certainty as to that removal or the time it will occur.
45. The latter point was made in R (MH) v SSHD [2010] EWCA Civ 1112 where Richards LJ reiterated (at para. 65) that there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. It need not matter, however, that the date this might occur cannot be predicted with certainty nor that there was an absence of certainty that removal might occur at all.
46. The adjourned hearing date of the claimant's appeal to the Upper Tribunal had not, at the conclusion of the hearing, yet been set but in the circumstances it did not seem to me to be unreasonable to infer that it would not be in the not too distant future even if it cannot yet be predicted with any certainty. This inference seems to have been reasonable: see paragraph 22 above. Here whilst the case of the claimant is not obviously hopeless (below), equally neither is that of the Secretary of State. Moreover, there are a number of other factors powerfully operating in favour of the Secretary of State, such as risk of re-offending, the risk of harm to the public if the claimant is released, and the risk of absconding, all of which I deal with below not in the context of the substantive case but in the context of his continued detention.

The Merits of the Claimant's Case

47. If the claimant's (or for that matter the Secretary of State's) case was so obviously meritorious or so obviously hopeless (as the case may be) the decision at this stage might be very much easier either way. Inevitably without descending into a detailed analysis of the substantive case (which seems to me not the task of the court at this juncture) it is legitimate to see whether the claimant's case can at least be categorised as hopeless. If it were that may weigh in the balance more heavily against his release.
48. As a start, however, I am prepared to accept that despite two rejections of his appeal against deportation, his case based on his Article 8 rights to respect for family life is (as it has emerged and is emerging) now by no means a hopeless one. Miss McGahey, for the Secretary of State, argues that the focus of the court at this stage is not on the merits of the case. I agree, but it is relevant to the reasonableness of his period of detention. Miss McGahey points to the facts that the claimant's family retains some links with Morocco, that his father appears to have a residence there, that he and his wife are now divorced, and that he has at least in the past been only allowed supervised access to his children. On the other hand whilst I have not seen the intended report (even in draft) of the independent social worker mentioned above, there is also some evidence that the children wish to have contact with their father, want to see him, would be considerably upset if he were deported and would find it increasingly difficult (and expensive) to visit Morocco to see him.
49. All this at this stage is to some extent a matter of conjecture and untested, but nevertheless I cannot dismiss his case as at all hopeless. This has been recognised at least twice by senior judiciary (Plender J and Richards LJ).
50. Moreover it is in this context worth bearing in mind developing jurisprudence which stresses the importance of maintaining parental contact with both parents and in all court decisions involving children of giving effect to the primacy of importance to the child's welfare and best interests: see, for example, ZH (Tanzania) v SSHD [2011] 2 WLR 148; K v Newsgroup Newspapers Ltd [2011] 1 WLR 1827 CA; Re C (Direct Contact: Suspension) [2011] 2 FLR 912 CA.

Other Factors

51. On any basis the overall period of delay since June 2008 is concerning. Here again however, a number of factors are relevant to a consideration of whether the overall period is now so unreasonable in all the circumstances as to result in the claimant's immediate release or whether the decision to maintain his detention is reasonable.
52. First, I regard the period of delay overall during the period when and considered from the standpoint of when the claimant was pursuing appeals and applications as of little weight against him even recognising that, for example, the latest hearing was adjourned owing to his desire to obtain a report on his children. Given the jurisprudence I have mentioned and the attitude of the Children's Champion (based solely on what was reported by the Home Office officials) I am not surprised the claimant wanted to be in the best possible position to present his case. If anything the delays brought about by his pursuing his appeals against deportation, given his case, is a factor that weighs in his favour.
53. Second, nor do I consider that he has been so responsible for the delays in bringing the matter to a further hearing as a matter of some substance to be held against him. His appeals against deportation are perfectly understandable, likewise his bail applications (which I deal with further below), and whilst his attempt to obtain evidence and support from his family and former wife produced not the most cogent of material this might be viewed as having at least the potential for improvement by the time of his substantive hearing. Indeed, the latest delay in the adjournment of the September hearing is, as previously noted, understandably no doubt motivated by a desire to present his case in the best possible light. The fire at Field House is hardly something to be held for or against either side. Equally, I do not accept Mr Schwenk's criticisms of the defendant's officers in their own attempts to chase up the Tribunal listing: they seem to have done so (there was a case management hearing in March and a listing in June for directions when it was adjourned to September for hearing but adjourned following the claimant's application to file the further evidence of the independent social worker). The claimant is just as capable of urging as much speed as possible as the defendant, if not more so. I have little doubt that the pressures on the listings department in the Upper Tribunal are considerable.
54. Third, I also do not regard the lack of co-operation of the claimant in the obtaining of an ETD as something to be weighed against him. I am prepared again to assume that the Secretary of State was right in thinking or inferring that the claimant was not co-operating in obtaining an ETD and it was only when copies of the relevant document (the claimant's Moroccan passport) were obtained by the defendant (suggesting in fact that they had been provided with or obtained copies at some point) that officials were able to obtain the necessary ETD from the Moroccan Embassy. As Lord Dyson recognised in Lumba (para. 127) where voluntary return is not possible for reasons extraneous to the person detained, the fact that he is not willing to return voluntarily (or, in my judgment, by the same token, he is not willing to co-operate in obtaining an ETD) cannot be held against him since his refusal has no causative effect. Here the claimant at all material times had an outstanding appeal (including for these purposes his periods of application for judicial review or to the Court of Appeal) and could not be removed pending determination. Accordingly, given his long history in the UK I do not find his attitude at all surprising but in my judgment it had no causative effect on the delay and has now in any event ceased to have any effect since an ETD has now been obtained.
55. Accordingly I find the delay either not something to be weighed against his release or (from his standpoint) at worst, neutral in the overall balancing exercise.
56. Fourth, Mr Schwenk also had some criticisms of the detention review, monitoring and reporting systems of the defendant in that these were in some way inadequate, erratic, not careful enough, not regular enough or were illustrative of a lack of proper care and diligence being paid to the serious issue of the claimant's detention. I respectfully agree with Bean J's observations in Choy v SSHD [2011] EWHC 365 (Admin) where he said at para. 24 that it was not the function of the court to carry out a time and motion study of each day or week of the claimant's detention to see whether the defendant was at all times acting with due diligence. Again, looked at overall, it seems to me that the defendant carried out regular and proper reviews of the claimant's detention with a view to seeing whether it should be maintained.
57. Fifth, I now come to what I regard as the two most serious factors against the claimant: his risk of re-offending and absconding. I accept Mr Schwenk's submissions as far as they go that the PSR assessed the claimant's risk of re-offending as medium. I note also the comments of Richards LJ in granting permission to appeal, describing his history of offending as a "relatively low level of seriousness" (above).
58. But given the claimant's history of offending and repeated re-offending over almost 20 years and the nature of the offences (including domestic burglary and sexual offences) the risk of re-offending and of potential harm to the public cannot be dismissed or, despite his own protestations to the effect that he will now lead a good life, ignored.
59. In my judgment of particular relevance in this context are his re-offending within a comparatively short time of his release as late as 2006-2007 and his convictions for failure to surrender to bail and for failing to notify his change of address when on the sex offender's register. It may be he forgot in the latter case but it demonstrates a somewhat cavalier attitude (just as he found it "easier" to give the Moroccan authorities his father's address).
60. There is also powerful support for the Secretary of State in the repeated refusal of bail to the claimant in all the cases that have been heard. This, of course, does not mean his detention is lawful of itself, but the refusal of bail on repeated occasions based largely on his history of offending, the risk of re-offending (even allowing for it to be low to medium), his failure to surrender to bail, and his failure to notify his change of address does provide, as Miss McGahey submits, powerful evidence that the decisions to maintain detention were, and remain, reasonable and in my judgment essentially for these reasons justified. Mr Schwenk criticises this reasoning as essentially illogical. He maintains that the claimant has every reason to co-operate: his desire to remain in the UK and to see his children. So he may, but that does not mean he may not abscond, or as Miss McGahey puts it "go to ground" even in the UK popping up only when it suits him. I found it curious that the claimant had no proposals as to where he would stay or live pending determination of his appeal.

Overview

61. Basing himself on Lord Dyson in Lumba Mr Schwenk on behalf of the claimant submits that "There must come a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation." (p. 712, para. 144). Compared, argued Mr Schwenk, with R (Sino) v SSHD [2011] 1 EWHC 2249 (Admin) (a decision of Mr John Howell QC sitting as a Deputy High Court Judge) this case was less serious and the risk of re-offending in this case less serious than in Sino. There the claimant who had been detained for almost 5 years was held by the deputy judge not to have co-operated with the authorities, to have a very high risk of absconding but did not pose a serious risk of harm to others if not detained.
62. For my part, I do not find the comparison with other cases very helpful even though they are distinctly educational. Each case, as I have said, depends on its own facts. The total length of detention in this case is, as I have said, worrying. The claimant's case is not hopeless but is grinding its inexorable way to a conclusion. I am not persuaded conclusively either way on the contributing factors to the period of delay (certainly not enough against the claimant), nor by his lack of co-operation regarding the ETD. What does persuade me at the end to consider the Secretary of State's decision to maintain detention as both justifiable and reasonable albeit the long period of delay are the concerns as to the risk of re-offending, the potential harm to the public if he does re-offend, and the risks of his "going to ground" if released for the reasons previously stated.

Conclusions

63. Accordingly I dismiss the application with the exception that it is conceded that the defendant is liable to nominal damages only in respect of the period of detention between June and September 2008. I leave this to be settled by the parties but it can be restored if the parties cannot agree.
64. It follows it is not necessary for me to consider whether the claimant could or should have been released at an earlier stage nor is it necessary for me to consider the other questions of exemplary or vindicatory damages.

Note 1    Paragraph 15 at Bundle 2, tab F, p. 3 (cited as 2/F3).    [Back]

Note 2    Marriage certificate at 2/H11 and 2/J1.    [Back]

Note 3    See paragraph 24 witness statement at 1/A4.    [Back]

Note 4    See 1/A59-63.    [Back]

Note 5    Decision at 1/B16-31.    [Back]

Note 6    See order at 1/B46.    [Back]

Note 7    See email at 2/G12.    [Back]

Note 8    See 2/F11-15.    [Back]

Note 9    Decision at 1/B47-50.    [Back]

Note 10    1/B51-69.    [Back]

Note 11    1/B79-80.    [Back]

Note 12    1/B118.    [Back]