England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/04/2012

Mr Justice Irwin:

Introduction

1. In this case the Claimant seeks a declaration that his detention by the Secretary of State for the Home Department ["SSHD"] was unlawful from 22 October 2010 to 5 March 2012, in addition seeking damaging and costs. Originally the Claimant sought to challenge his proposed removal to Cameroon and, in parallel with judicial review proceedings, issued a writ of Habeas Corpus. The application for the writ was withdrawn on 31 January 2012. The Claimant was in fact removed to Cameroon on 5 March 2012, the challenge to removal having been rejected. By the time of that removal the Claimant had been in immigration detention for a total of 4 years and 2 days.
2. The claim is helpfully summarised in one paragraph of the second skeleton argument on behalf of the Claimant in the following terms:

"It has been accepted that the Claimant previously gave false information about his identity and nationality but in an interview with the Defendant on 22 October 2010 he confirmed that he was from Cameroon having been born in Douala…..no attempt was made to remove the Claimant to Cameroon after this for one year and 4½ months despite the fact that there was no bar upon the Defendant's ability to do so."

The Facts

3. The Claimant's date of birth appears to be accepted as 18.06.68. He obtained residency in the United Kingdom by using a forged document on 20 April 1999. On 22 June 2001 he was convicted of attempting to obtain property by deception and handling stolen goods, for which he received a fine and had to pay costs. It appears that he briefly left the United Kingdom after this date. He returned on a flight from Yaounde, Cameroon on 3 December 2001.
4. In the course of 2003, the Claimant was arrested. Upon his arrest forged British and French identity cards were recovered, as well as a recently expired French passport. The arrest was for offences of blackmail. The Claimant absconded from the Magistrates Court during the currency of these proceedings, which therefore could not be brought to a conclusion until years later.
5. In 2004 the Claimant was arrested on a charge of using a false instrument. This offence was committed in the name of Jean-Pierre Raymond Malapet. On 21 October 2004 he was convicted of this offence and sentenced to 9 months imprisonment.
6. In the latter half of 2007, the Claimant had again been arrested and was held in HMP Wandsworth on remand in relation to the blackmail offences dating from 2003, which had stalled following his absconding in 2003. When the Claimant was seen in Wandsworth on behalf of the Defendant, he claimed to be a French citizen holding a French passport and to have resided in the United Kingdom since 1996. On 15 December 2007 he was convicted of failing to surrender to bail in relation to his absconding in 2003. On 1 February 2008 he was convicted of possessing a false instrument and on 26 February was sentenced to 1 year and 2 months imprisonment. On 3 March 2008 a continuing record noted that the Claimant's nationality was uncertain. The Police National Computer [PNC] stated that the Claimant was from Cameroon. Immigration records recorded that the Claimant was born in Nigeria. The Claimant himself claimed to be French.
7. The Claimant's immigration detention, on expiry of the sentence for which credit had been given in respect of periods served on remand, commenced on 4 March 2008.
8. The Claimant was further interviewed on 10 March 2008 and served with a decision for deportation and detention paperwork. At this point the Claimant asserted that his full name was Aime Benoit Amougou-Mbarga, that he was born on 18 June 1968 and that he was a French National. The Claimant asserted that his passport was held at Bishopsgate Police Station. The City of London Police at Bishopsgate confirmed that they did not hold the Claimant's passport. Immigration officials noted that when the Claimant was arrested in 2003, he held forged British and French identity documents, as well as an expired French passport.
9. On 14 March 2008, the Claimant said he had been born in the Cameroon but moved to France as a child. On 19 March he repeated the assertion that he was a French citizen and that his French ID card was at Bishopsgate Police Station. On 25 March an international driving licence was received from Bishopsgate Police Station in the full name of Aime Benoit Maougou Mbarga, recording the place of birth as Douala.
10. On 3 April 2008 a deportation order was signed. Later that month immigration officials sought to confirm the Claimant's nationality with the French Embassy and on 25 April the French Embassy confirmed that the Claimant was not a French citizen.
11. On 20 June 2008 a deportation order was served on the Claimant and on 23 June removal directions were set for the 28 June to Cameroon. On the day of intended removal, removal was cancelled as escorts arrived too late for boarding.
12. At a further interview on 1 July 2008 the Claimant renewed his claim to be a French citizen. This was not accepted and on the following day removal directions were set again, on this occasion for 9 July 2008 to Cameroon. However, two days later on 4 July the airline cancelled the flight. Removal directions were set once more for 1 August 2008 to Cameroon, but on 29 July this planned removal was cancelled as the relevant officials were of the opinion the Claimant would be disruptive and no escorts were booked in time.
13. On 28 August 2008 removal directions were once more set for 2 October to Cameroon. This removal was frustrated because one of the escorts resigned immediately before the planned date. Removal was not practical in the absence of a full complement of escorts. On 2 October, removal directions were set for 20 November, again to Cameroon. The Claimant continued during this month to assert that he was French and that he could not be sent to Cameroon. He sought bail but his application was refused on 19 November. On the same day the planned removal was cancelled because G4S withdrew their escorts at the last minute.
14. On 10 December 2008 removal directions were set for 5 January 2009 to Cameroon. However on 30 December 2008 these removal directions were cancelled due to an error in the necessary EU letter.
15. On 19 February 2009 the Defendant received a telephone call from the principal airport in Cameroon threatening to disrupt the Claimant's removal and demanding his release. On 20 February 2009 removal directions were set for the 2 March 2009 to Cameroon. This removal was frustrated since the airline (Kenyan Airlines) were filming their operations on that day and refused to accept immigration bookings. On 3 March removal directions for 10 March were set, but were cancelled on 10 March, since insufficient notice had been given for the reception of the Claimant in Cameroon.
16. On 16 March removal directions were set for 31 March 2009. In response the Claimant wrote once more to the Defendant claiming to be Malapet Jean-Pierre Raymond and to be French. On 31 March 2009 the planned removal was cancelled due to a judicial review application lodged by the Claimant. A fresh application for bail was refused on 7 May. On 1 June 2009 detention review noted that the Claimant had provided a birth certificate in the name of Malapet Jean-Pierre Raymond. On 15 June permission was refused to apply for judicial review.
17. A place was found for the Claimant on a flight to Cameroon on 9 July 2009. On 30 June the Claimant sought an oral application for permission for judicial review. On 9 July 2009 the Claimant was refused a stay of removal pending the outcome of the judicial review proceedings and the Claimant was in fact flown to Cameroon. However Cameroonian officials refused to accept him and he was returned to the United Kingdom. In interview with the Cameroonian officials, the Claimant asserted that he was French, that his father was from the Congo and his mother from the Antilles. When interviewed after his return to the UK, the Claimant asserted that his name was Malapet Pierre-Jean Raymond, that he had a date of birth of 25 September 1967 and that he was French. On 18 August 2009 the Claimant refused to provide fingerprints to assist in establishing his true identity.
18. On 25 September 2009 a second successive difficulty arose with the Cameroonian authorities. After their refusal to accept the Claimant into Cameroon on 9 July, they now declined to look at documents relating to the Claimant presented to them on behalf of the Defendant.
19. In November 2009 the Defendants officials sought to verify the alternative name and identity advanced by the Claimant with the French Embassy. That was on 6 November. On 13 November, the Claimant was visited by the Borders Agency. The Claimant presented them with a French birth certificate in the name Pierre-Jean Raymond Malapet and a letter from the French Ministry of Justice showing that he had no convictions in France. The Claimant told officials that he was worried he would get into trouble for using the "false identity of Aimee Amougou-Mbarga". The Claimant stated that he was born in France not Cameroon and affirmed that he was indeed a French national.
20. Following this, on 17 November the Defendants' officials sent documents to the French Embassy again seeking to confirm or otherwise the Malapet identity. Exchanges with the French Consulate and the French Embassy carried on through December 2009 and into January 2010. On 20 January 2010 the Claimant completed a questionnaire with further details in support of his French nationality. A follow-up questionnaire and a telephone interview followed. On 27 January the French Embassy confirmed that the Claimant was not a French national, but was using a birth certificate in the name Malapet which was believed to be a genuine French document. The Defendants' officials pursued this on 25 February 2010. In interview the Claimant maintained that he was French and not from Cameroon.
21. In March, the Defendants' officials sought to resolve the difficulties by means of language analysis, a step to which the Claimant agreed on 23 March. On 31 March he underwent a language analysis interview. By April 2010 he had provided fingerprints, which were sent to the International Fingerprint Bureau requesting a eurodac search in France. By 20 April language analysis results confirmed that the Claimant was not French but was unable to confirm his origin. The Claimant stated at this stage that his mother was from Martinique and his father from the Democratic Republic of Congo. By 18 May 2010 the Defendant was informed that the Eurodac check was negative. On 18 June 2010, the Defendants received an email confirming that the Claimant had been fingerprinted in Lille, France in 1993, under the name Benoit Mbarga with a date of birth 4 June 1969. On 30 June the Claimant was again visited. He then asserted that he had been born in France, and indeed in Paris. He stated that he had never been to Cameroon but lived all his life in France, save for short spells in Germany and Belgium. He acknowledged that he had a son in Germany. On 19 July the French Consulate confirmed that the Claimant was not French. The Defendants' officials then wrote to the Claimant's estranged wife seeking information about the Claimant's origin.
22. On 22 October 2010 the Claimant was re-interviewed at length by officials. In the initial part of this interview he continued to insist that he was French. He said he had been to Cameroon on two occasions. The first occasion was when he was deported there by French authorities in 2001 but was returned as he told officials in Cameroon that he was French. The second occasion was the unsuccessful removal by the British Authorities in 2009, when by means of asserting to Cameroonian officials that he was French he, for the second time, achieved a return to the deporting country.
23. As this interview progressed the Claimant was told by the Defendants' officials that the documents he had put forward were believed to be false. As the information achieved to date by the Defendant was put to the Claimant, he acknowledged for the first time that he was from Cameroon. He stated that he had been born in Douala on 4 June 1968 and that his true name was Aimee Amougou-Mbarga. He asserted that he had left Cameroon in 1988 aged 20, travelling by using the Cameroonian passport belonging to a friend. Immediate checks on the identity advanced at this stage were negative.
24. It is the Claimant's case that from this moment the Defendant should have accepted his assertion that he was Cameroonian, that he should immediately either have been deported or released, and that subsequent detention was unlawful.
25. On 13 January 2011 the Claimant was again interviewed by officials. He then stated that his father was from Gabon and that he did not know his mother's name, as he had been brought up by his stepmother. He asserted that he was brought up in Cameroon. However then he altered the story and stated that he was brought up in Gabon before travelling to Cameroon when he was 19. The Claimant gave details of the school he attended in Port Gentil, Gabon.
26. On 15 January 2011 a new deportation order was served on the Claimant. On 25 February the Claimant was interviewed and on this occasion stated that he was born in Cameroon but on a different date: 18 June 1968. He stated that he was subsequently brought up in Gabon.
27. On 24 March 2011 the Claimant was again interviewed by a different team of officials. On this occasion there is some dispute of fact as to what the Claimant said. It is the Defendant's case that, as recorded by officials, the Claimant stated he was from Gabon. The document is on any view somewhat confusing. The biodata information sheet shows the Claimant's nationality as "Gabonese". The place of birth is given as "Douala, Cameroon". The "last known address in country of origin: "Port Gentil near football stadium Gabon"". The father and mother are both said to have had a place of birth in Gabon and nationality Gabonese. On 24 March the Claimant declined to sign the bio-data form. He declined again on 31 March. It is the Claimant's case that he refused to sign because the form was inaccurate, in that it gave his nationality as Gabonese. Eventually on 6 April he did sign the form, striking through the words "Jesus is Lord" which he had previously printed in the space requiring a signature.
28. On 12 April 2011 removal directions were set for 20 April to Gabon. These were served two days later on the Claimant who denied being from Gabon and stated that he would not go back there. On 18 April further representations were received from the Claimant seeking the revocation of the deportation order. On 19 April the Claimant's then solicitors faxed the Defendant claiming that the Claimant was from Cameroon not Gabon. Hence, on the following day removal directions were cancelled as a response to those representations. However, after further consideration, the Defendants' officials did not accept the assertion that the Claimant was from Cameroon not Gabon, and on 10 May removal directions were set for 18 May to Gabon.
29. On 17 May the Claimant sought a further Judicial Review. The application for a stay of removal pending judicial review was refused on 18 May, but removal planned for that date was unsuccessful since escorts were delayed at check in and the flight closed. The removal directions were reset immediately for 26 May to Gabon and the Claimant was flown there, but was "bounced back to the UK" as he claimed to Gabonese officials to be a citizen of Cameroon. He thus returned to the UK once more.
30. On 13 June 2011 the Claimant's former wife indicated that she did not believe his real name was Amougou-Mbarga. On 28 June, the Defendant's officials obtained photographs of the Claimant and sent them physically to the liaison officer in Ghana in an attempt to see if officials in Cameroon could identify the Claimant. On 11 August 2011 German police provided information which could only be transmitted physically and which was sent to the German Embassy in London. This information, sourced from the Claimant's former wife, supported a Cameroonian nationality. Enquiries were pursued in France through the assistance of the Serious Organised Crime Agency [SOCA]. On 26 September 2011 SOCA reported to the Defendant's officials that there had been a visit to the Claimant's son in Germany and he had asserted that his father (the Claimant) was French. However, on 14 October 2011 the Defendant's officials were informed that German police had visited the Claimant's former wife in Germany, who had stated that the Claimant had been born in Mbalmayo, Cameroon and had later lived in Douala. She also stated the Claimant's mother was from Cameroon not Gabon, although his father had a Gabonese origin.
31. Through the late summer and early autumn of 2011 the Claimant initiated a second judicial review claim. Following refusal on paper of permission to apply for judicial review an oral permission hearing had been adjourned in late October. On 17 October, the Claimant made a bail application in relation to his immigration detention. As I understand it, the Defendants' officials did not yet have the full details of the information coming from German police three days before. However, subject to that, full information in the case was available to the Immigration Judge who refused bail.
32. On 28 November 2011 there was a further interview between the Claimant and the Defendant's officials. Here he repeated that he was born in Douala. In early December 2011 the Defendant again began to move towards a return to Cameroon. However, at that stage there was an extant attempt at judicial review to prevent removal. A file was prepared with a plan for removal to Cameroon via Ghana on 15 February 2012, however on 17 January there was a hearing in these proceedings before Silber J. The hearing was adjourned until 31 January for service of witness statements at the direction of the Judge and for submissions in relation to Habeas Corpus.
33. On 30 January 2012 there was a further interview with the Claimant. He affirmed to officials that he was born in Douala, Cameroon. He denied that he was from Gabon and asserted that he was "made to sign the wrong paper" when he signed the biodata form for Gabon in April 2011. It appears to me clear in context that the Defendants' officials were seeking absolute commitment from the Claimant as to his Cameroonian origin, in part because of the preceding difficulties. They had to face the risk that if they did remove the Claimant to Cameroon and he then asserted that he was Gabonese or French there might be another return to the UK.
34. On the following day, 31 January 2012 there took place the resumed permission hearing, on this occasion before Stadlen J. Permission to apply for judicial review was granted. The Habeas Corpus application was withdrawn by the Claimant.
35. A charter flight had been identified on 16 February whereby the Claimant might be removed. However, the decision was taken against using this flight as it was to be utilised for the removal of "a highly disruptive Cameroon national" whose removal was regarded as a higher priority. This is confirmed by the witness statement of Deborah Zanotti of 22 February. A further removal date was planned for 5 March.
36. On 4 March 2012 the Claimant made a claim for asylum, asserting that he would be the subject of unlawful killing if returned to Cameroon. On the following day 5 March, the asylum claim was rejected having been certified as manifestly unfounded. The Claimant was removed to Cameroon with five escorts and medical attention. In Cameroon, a representative of the British High Commission had been arranged to be present on the Claimant's arrival, in order to avoid any renewed difficulties with Cameroonian officials. This removal was successful.

The Law

37. The power to detain pending removal from the United Kingdom is set out in paragraph 2 of Schedule 3 to the Immigration Act 1971. The power is of course to be exercised "pending the making of [a] deportation order" and/or "pending his removal or departure from the United Kingdom".
38. The power to detain must be exercised consistently with the principles set out in R –v- Governor of Durham Prison ex p E Hardial Singh [1984] 1AER 983 as restated and expanded slightly in R [I] v SSHD [2003] INLR 196, and as approved by the Supreme Court in R (Lumba)-v- SSHD and Others [2011] UKSC 21.
39. There is no real argument about the principles to be observed. The power must be used only with an intention to deport the individual and for that purpose; the deportee may only be detained for a period that is reasonable in all the circumstances; 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 period, he or she should cease to detain; and the Secretary of State must act with reasonable diligence and expedition throughout.
40. In addition, the Supreme Court in Lumba expressly dealt with the situation where the individual concerned did not wish to return and did not cooperate in a voluntary return. The refusal of voluntary return could not be regarded as:

"A trump card which enables the Secretary of State to continue to detain until deportation can be effected whenever that will be. "

41. In my judgment a failure to co-operate falls to be distinguished from a deliberate campaign of misinformation and deception. It seems to me the two are to be regarded differently. I note that this was the view taken by John Howell QC sitting as a deputy High Court Judge in R (Sino) –v- SSHD [2011] EWHC 2249 (Admin). It was his view that the decision of the Supreme Court in Lumba does not go so far as to exclude regard to the contribution "that a detainee's conduct may make to the length of his own detention". Further the learned deputy judge went on:

"It is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of an individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain [a travel document] by supplying false or misleading information."

42. It is also helpful to keep in mind the comments of Carnwath LJ in R –v- Krasniqi-v- SSHD [2011] EWCA Civ 1549 at paragraph 12. In this case the Court of Appeal was considering a claim for damages for wrongful detention following the report of the decision of the Supreme Court in Lumba. The Court said this:

"The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the Claimant to show a specific period during which, but for the failure, he would no longer have been detained."

Conclusions

43. It is clear that consideration of a claim for wrongful detention must reflect closely the facts and circumstances of the individual case. The facts here are striking. This is not merely a case of a refusal to co-operate with removal. Against a backdrop of repeated criminal offending involving deception, this is a story of gross repeated deception perpetrated by the Claimant to avoid removal. That deception has been successful in the past in confusing the authorities and in defeating his deportation, as outlined above. In my judgment, this cast a shadow not merely over the period before he relented and acknowledged his Cameroonian nationality. This history of deception had an important effect, as it was bound to, on events after October 2010. The Claimant had lied so long and so successfully that the authorities were entitled to feel he might be attempting to deceive them again. There was an obvious risk that they might attempt once more to deport him to the Cameroon, only to find that he went through another volte face, denied he was Cameroonian and achieved another humiliating and expensive return to the UK.
44. In that context it seems to me, it was not merely reasonable but necessary to continue the detention of the Claimant until the authorities were clear they had documentation, evidence and arrangements in place which would ensure his effective removal. It seems to me that was what they were doing, using reasonable application and intelligence, from October 2010 until the date when the Claimant was successfully removed. Both before October 2010 and after, there were some periods of administrative delay, but in the context of a complex and difficult case such as this, they did not in my judgment cross the line between administrative delay and unreasonable delay amounting to illegality.
45. I am reinforced in the conclusions I reach by the inconsistent positions taken on behalf of the Claimant in the two written skeleton arguments submitted on his behalf. In the first skeleton argument lodged before removal the Claimant suggests (see paragraph 11) that he should have been released – and should be released – because the Defendant would never achieve removal in a reasonable time. In the second skeleton argument, prepared after he had actually been removed, the Claimant submits (paragraphs 6 and 7) that removal could have been achieved much earlier by reference to the material which was eventually gathered and the arrangements eventually made by the Defendant. These assertions do not sit comfortably together.
46. For all these reasons this claim is dismissed.