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
		18th October 2012

Mr Justice Irwin:

1. This case is a challenge to the legality of the detention of the Claimant by the Defendant for a period of about 23 months beginning on 6 March 2010.

The Facts

2. The Claimant's date of birth has been accepted to be 15 December 1984. On 1 June 2000 he entered the United Kingdom illegally as an unaccompanied minor and claimed asylum. His case was that he was born in Kosovo of Albanian ethnicity. His asylum claim was refused on 23 January 2001 but satisfactory reception arrangements could not be made and so he was granted extended leave to remain until his 18^th birthday on 15 December 2002. The Claimant lodged an appeal against the refusal of the asylum claim but on 23 January 2001 the appeal was refused.
3. The Claimant turned 18 on 15 December 2002 and his extended leave to remain expired. According to those now representing the Claimant, his then solicitors failed to apply for extension in time. In early September 2003 he submitted an application for further leave to remain. That application was not dealt with until July of 2009. On 14 July 2009, nearly 6 years after the application was made, the Claimant's outstanding application for leave to remain was refused.
4. In the meantime, the Claimant acquired both criminal convictions and health problems. Beginning in March 2003, the Claimant was successively convicted of criminal damage, public order offences, assault, driving offences, and finally on 4 December 2009 he was convicted before the Croydon Crown Court of the offence of robbery and sentenced to 18 months imprisonment. In 2004, the Claimant had been diagnosed as suffering from Bronchiectasis, likely to be caused by the hereditary condition Primary Ciliary Dyskinesia. As I understand it, this is a significant health problem which can be serious, and is mitigated only if the Claimant is careful of his general health, his nutrition and any abuse of drugs or drink.
5. The Claimant completed his prison sentence and on 6 March 2010 was detained at HMP Highdown. On 10 March he was served with a deportation order and his detention was varied so that he was detained under paragraph 2 of schedule 3 to the Immigration Act 1971 pending his removal. On 24 March he lodged an appeal against the deportation order and that appeal was heard on 12 July 2010. The appeal was dismissed on 15 July and on 27 July the Claimant's appeal rights were exhausted. The Claimant was served with removal directions for 9 September 2010. This removal did not take place, the first of many ineffective decisions to removal the Claimant. The problem was achieving removal to Kosovo, where the Claimant says he was born, or Albania.
6. The Claimant was released on bail on the order of Mr Justice Charles on 7 February 2012, following an oral interim relief hearing where permission to apply for judicial review was also granted. Thus his detention persisted from 6 March 2010 to 7 February 2012.
7. In order to consider the legality of the detention, it is necessary to look closely at the successive decisions to detain.

The Decisions to Detain

8. As far back as the 18 May 2009, the Respondent was aware that there might be difficulty in removing the Claimant to Kosovo. The relevant entry reads:

"Removal to KOS on scheduled NOT authorised; we need supporting evidence in order to refer the subject to KOS for approval……If there is no supporting evidence then the sub may well not be KOS."

9. The records show that the Claimant's case was passed to the Senior Case Worker on 17 February 2010. It was recognised that "likelihood of removal within a reasonable timescale is not likely. Time is needed so case can be looked at by SCW". At that stage it was thought that "subject is a Kosovo national and can be removed with an EU letter". It was decided to detain.
10. The minute of the decision to detain on 6 March 2010 comprised a history which included the Claimant's health problems and also contains the following:

"Subject claims to have dyslexia and found it extremely difficult to read and write. This caused problems when completing his Bio Data. Sub claims that his mother, father and brother were murdered in Kosovo when he was 14 years old and he has no other family apart from a younger sister there. He has a foster mother here in the UK [name, address, postcode and phone number given] with whom he claims to have regular contact."

11. There was a detention review on 29 April 2010. The history was again noted and by then the appeal hearing was scheduled for 12 July 2010. Under the rubric of "likelihood of removal" it was suggested that "subject is removable on an EU letter subject to the appeal being dismissed and appeal rights being exhausted".
12. As I have recited above, the Claimant's appeal was dismissed on 15 July 2010. The decision of the Immigration Judge reviews the history generally. The Tribunal concluded that the Claimant was covering up, at least to some degree, the existence of relatives in Kosovo. The Tribunal found it was more likely than not that there were close family members residing there. He would not be destitute or alone if he returned to Kosovo. The Tribunal accepted that he was a Kosovar of Albanian ethnicity. There was no suggestion that the Claimant was an Albanian national.
13. On 6 August 2010 his removal pack was completed and it was noted that the Agency was awaiting the setting of removal directions. The Bio Data information which accompanied this records the place of birth as Mitrovice in Kosovo, and records the nationality as "Kosovan". Details of both parents are given with their names and their nationality as Kosovan. At that stage the Agency thought that:

"It is hoped removal directions will be set imminently."

14. Removal directions were set on 9 September 2010. The relevant entry is self-explanatory:

"Originally removal directions were requested to Kosovo. However removal directions were set to Albania. On the day of removal, 9 September 2010 and given contact from his representative on 8 September 2010 requesting why his client was being removed to Albania (I was absent on this date) I attempted to establish on what information the decision was taken to remove to Albania as I had not been copied into the discussions which took place. From emails it transpired that a member of ReSCU had decided that there was insufficient evidence for removal to Kosovo and that Mr Mulliqi may be an Albanian (it is noted on file that Mr Mulliqi was an ethnic Albanian from Kosovo) further evidence was added to this as a member of staff at Brook House IRC received a letter from another detainee informing them that Mr Mulliqi was in fact Albanian. I have not yet gained sight of this letter and when I spoke to Brook House IRC the letter could not be located on his file. In an email dated 31 August 2010 rescue advised CCD Ops that if a new EU letter could be created showing Albania then removal to Albania would be authorised. Removal directions were set for Albania. The removal proceeded to the stage where Mr Mulliqi was sat in a van with his escorts awaiting removal to Albania. However it came to light that the EU letter was not re-created (sic) to show Albania and therefore the removal was cancelled on the grounds that the Albanian authorities would not have accepted Mr Mulliqi back. I was however informed that Mr Mulliqi did want to return and was not resisting removal……. As previously stated above Mr Mulliqi's nationality was being disputed and will need to be established before removal directions can be set again…….Mr Mulliqi is removable on an EU letter but given the previous failed removal there is some ambiguity over his country of origin and he will need to be interviewed with regard to this. This will be actioned as soon as possible and it is felt removal can be achieved in a reasonable timescale."

15. The decision to detain was made on the basis that there was a high risk of absconding and that the dispute about his nationality needed to be resolved;

"Therefore further checks need to be made to provide further evidence he is from Kosovo."

16. I pause to comment that the whole problem which has bedevilled the removal of the Claimant was already laid out in the documents and in the minds of the UK Borders Agency by this date. The Claimant has all along said substantially the same thing about his origins. He was born in Mitrovice in Kosovo but he is of Albanian ethnicity. He has never, as far as I can see from the papers, claimed to be of Albanian nationality.
17. On 5 October 2010 the Claimant was re-interviewed with regard to his nationality. The notes are straightforward:

"He stated that he was a Kosovan having been born in Kosovo (Mitrovice). He stated that he left Kosovo aged 12 and fled to Albania with his sister and friend. He remembers very little of his life in Kosovo. He added his sister Diata Mulliqi remained in Italy while he travelled to the UK. He claims to have no supporting evidence of his identity or nationality as, when he returned to his home, the house was on fire and he fled. Spoke with the IO interviewing and she was of the impression Mr Mulliqi did not want to be removed. He certainly did not want to be removed to Kosovo and, if he had to be removed, his preference was to Albania…………Mr Mulliqi is removable on an EU letter, but given the previous failed removal, the case will need to be referred for advice to assess whether removal could be set given the lack of supporting evidence and also advice on how more supporting evidence can be gained."

There was at that stage an outstanding judicial review challenge to removal. He was further detained.

18. The case was reviewed again in early November. It was noted there were no charter flights to Kosovo or Albania currently scheduled. A meeting was scheduled for 11 November 2010to "examine the case and help establish Mr Mulliqi's nationality". The judicial review was still pending with a timetable set by the court: "to agree to a consent order with the Claimant's solicitors." The judicial review team were said to:

"Require confirmation of Mr Mulliqi's nationality but unfortunately there is no current supporting evidence provided by Mr Mulliqi to conclusively confirm his nationality."

The decision to maintain detention was taken on this occasion by a senior official, whose observations read as follows:

"I agree with the proposal to maintain detention. The nature of offence outweighs any presumption of liberty. I am concerned that this man's removal has been scuppered by ReSCU. Please ensure we establish a plan to progress this case with CTU tomorrow."

19. The meeting on 11 November was inconclusive. It was said that investigations would continue to attempt to establish the Claimant's nationality and "will be completed as a priority". It was noted that the judicial review had been brought to a close by a consent order cancelling the removal directions dated 1 September:

"and upon [The Secretary of State] carrying out further investigations as to the Claimant's nationality and agreeing not to set removal directions until those enquiries are complete."

20. The Claimant's case came before the Tribunal in November. The Immigration Judge held on 18 November 2010:

"The applicant's record of convictions, and findings in the determination of his deportation appeal, support the assessment in the PSR that he poses a medium risk of serious harm to the general public through means of violence and physical injury, and a medium risk of being convicted within 12 months of release.

…..

The panel who determined his deportation appeal were satisfied that he has relatives in Kosovo. He could obtain evidence to help establish his Kosovan nationality. I am satisfied that he has not provided all the assistance he could provide towards establishing his nationality so that a travel document can be obtained. He is partly responsible for the length of this detention…."

21. On 6 December 2010 it was concluded that removal could be achieved in a reasonable timescale and authority to maintain detention was given while further checks were made as to his nationality and because he was considered a high risk of absconding.
22. There was a further meeting with the Claimant on 8 December 2010. The Claimant:

"……..reiterated he was Albanian speaking and from the town of Mitrovice (Kosovo) no supporting evidence submitted."

23. On 14 December 2010 the case was discussed and:

"potential further avenues to explore identified. First action is to obtain the foster parents phone number from the file and then contact them to attempt to establish further information about his nationality."

It is therefore clear that although the foster parents' full contact details had been known since March 2010, no one had attempted to make any contact with them up to and including December 2010. The decision to maintain detention following these meetings was in the first week of January 2011. An official with the initials WFN wrote on 4 January:

"I have checked and agree with the proposal to detain. Mr M has failed to provide evidence about his identity and nationality. It is unlikely he could comply with any reporting conditions…….The onus is on him to leave the UK. Hence, he has prolonged his detention by not leaving the UK. Once we have established his nationality, his removal will be enforced. He was convicted of robberies. If he was to re-offend, the harm to the public would be serious. The nature of his offences outweigh any presumption of liberty."

24. A more senior official commented on the file:

"I agree that the risk of harm based on the nature of the offence and the risk of absconding based on immigration history and the current lack of evidence of identity outweigh the presumption of liberty. We should follow up the suggestion made by IDT for obtaining further evidence."

This last is presumably a reference to the suggestion made on 14 December that someone should contact the foster parents.

25. The Claimant makes a specific point that the approach taken at this decision to maintain detention was wrong in law.
26. The Claimant's lawyers sent a pre-action protocol letter on 28 January 2011 and a holding response was given by the Secretary of State. In the meantime, there was a further "informal meeting" with the Claimant on 10 January 2011. The meeting took place:

"With the assistance of a Kosovan interpreter via telephone. From speaking with [an official] and from the information from the interpreter they have doubts that he is indeed a Kosovan national as claimed. As such and as advised by HMI on 25 January 2011 a further nationality interview has been requested with a specific interviewer and a dual Kosovan and Albanian speaking interpreter."

27. In the meantime it was said that enquiries were continuing, that a meeting took place on 18 January and that the first planned action was "to conduct HMRC checks on current address for foster parents". It was still suggested that "removal can be achieved in a reasonable timescale". The decision to maintain detention following this activity was taken on 1 February 2011. The SEO level official wrote:

"A DO has been served and the remaining barrier to removal is an ETD. [Emergency Travel Document]. Mulliqi has thwarted a removal to Albania, by claiming to be Kosovan. Mulliqi has been interviewed [by another official] who has doubts as to his nationality. A further interview has been requested to clarify if Mulliqi is Kosovan or Albanian. The case was also discussed with IDT who have recommended an approach to HMRC to obtain details of his foster parents address."

28. On 3 February 2011 this decision was reviewed by an official whose position was described as "Director". The comments read as follows:

"I agree. Mr Mulliqi has been convicted of a serious violent offence and has a previous conviction. He has been non-compliant with efforts to remove him and there is a strong suggestion that he is attempting to deceive us over his true nationality. These factors indicate a risk of further harm to the public and of absconding and these factors outweigh the presumption in favour of liberty."

29. The Claimant makes particular complaint about this decision, suggesting that it is quite unfair to describe the Claimant's position as an attempt to thwart removal given the consistency of his account of his origins and the fact that he had previously been recorded as willing to be removed, and in particular removed to Albania.
30. There was a further detention review at the beginning of March. The review confirms that a meeting with the Country Specialist Investigation Team ["CSIT"] took place on 15 February:

"Enquires are continuing and numerous attempts have been made to contact Mr Mulliqi's foster parents, but at this time I have been unable to speak with them. ……….A further nationality interview is planned ………Mr Mulliqi is removable on an EU letter but, given the previous failed removal and doubts over his nationality, it has been necessary for further enquiries to take place to substantiate his nationality before removal directions are re-set.

Proposal

Mr Mulliqi has a clear disregard for UK immigration law having failed to regularize his stay in the UK…….."

An SEO reviewed and authorised his continued detention on 2 March with the brief comment:

"I have checked and agreed with the proposal to maintain detention. The nature of offending outweighs any presumption of liberty."

31. On 15 March 2011, the Claimant lodged an application for bail. This was withdrawn but a further application was submitted on 21 March. The Immigration Judge refused bail at a hearing on 23 March on the grounds that the Claimant was "unlikely to comply with conditions" and "likely to abscond". The Claimant's counsel draws particular attention to the history which was given to the Immigration Judge by the Secretary of State, in establishing the objection that the Claimant had shown disregard for immigration laws. The following history was given:

"Mr Mulliqi arrived in the UK on 1 June 2000 illegally as an unaccompanied minor and claimed asylum. His asylum application was refused on 23 January 2001, however because he was a minor, he was granted exceptional leave to remain until 15 December 2002, his 18^th birthday. He overstayed this leave and finally submitted an application for further leave on 12 September 2003 which was refused. On 12 May 2009 Mr Mulliqi was encountered by police and arrested. On 13 May 2009 he was served with an IS151A notice as an overstayer".

The criticism is that this history completely omits the fact that it took 5½ years for the Borders Agency to respond to the belated application for further leave to remain and that, the Secretary of State gave the impression through the history submitted that the Claimant disappeared for 6 years after his application for further leave was refused.

32. In the meantime on 22 March 2011 there was a meeting with the CSIT. It was said that enquiries were continuing and "numerous attempts have been made to contact Mr Mulliqi's foster parents" but no one has as yet spoken to them:

"If it remains not possible to contact the foster parents, consideration is being given to send police officers around to their property."

33. On 8 March, the Claimant had made an application requesting permanent residence, with his two British foster parents as sponsors. This is likely to have been misconceived given his nationality and that of his foster parents. It was suggested that removal would still likely be achieved within a reasonable time and on 29 March his detention was further authorised.
34. On 24 March 2011 a further interview took place with the Claimant, on this occasion with an Albanian interpreter present. The Claimant and the interpreter were said to have spoken at length about his time in Kosovo and the time lapse between the date when he said he had left Kosovo (1996) to his arrival in the UK in 2000. The note of the meeting continues as follows:

"Following the interview, the interpreter was of the opinion that [the Claimant] was an Albanian national and that he knew little about Kosovo. Furthermore if he was in Kosovo as he states, there is no possibility that he would not have attended school as all children attend school from primary onwards. Also it is highly likely to have extended family (sic) and would have regular contact with them and his surname is not a Kosovan name."

35. These observations, it is suggested, overlook the Claimant's age and the history he himself had given. His own account was all along that he was of Albanian ethnicity although born in Kosovo. Thus an Albanian surname might not be thought surprising. With the date of birth in December 1984, he would be at most 12 years old when leaving Kosovo and on his own history would then have spent some period in Albania before travelling through a number of other countries and arriving in the United Kingdom.
36. On 31 March 2011 a request was made to Interpol to check against the Claimant's identity in Albania, Italy and Greece. On 4 April 2011 it appears for the first time, a property search was made of the Claimant's property to see if there was anything to establish his nationality. There was not.
37. Continued detention was authorised on 14 April.
38. On 21 April 2011 it was noted that continued attempts to contact the Claimant's foster parents had still yielded no result. Further detention was approved on 23 May 2011.
39. On 7 June a second bail application was refused on similar grounds to those previously rehearsed. In the course of the June detention review, the Borders Agency noted:

"as in previous months it has not been possible to contact Mr Mulliqi's foster parents. Given this a request was sent to the local police and it is hoped they can visit the foster parents and interview them to see if they have any documents in their possession that can assist us."

Further meetings took place on 2 June and 14 June to consider the case. CSIT requested a spreadsheet to be completed with regard to "all references on file relating to his identity." They also requested visitor and phone records during the period when the Claimant was in prison. Further detention was approved on 20 June 2011.

40. The spreadsheet as requested was completed in June 2011. The requested visitor and phone records from HMP Highdown had not been completed by mid July.
41. There was one significant development in late June. A request was sent to the Metropolitan Police to contact the Claimant's foster parents on 20 June 2011. There was no delay on the part of the police. On the following day police visited Mrs McAffee at 31 Moorside Road, Downham BR1. This is the same address which the Claimant had given to the Defendant with postcode and phone number, in March 2010. Mrs McAffee confirmed that she had fostered the Claimant from June 2000 until 2004/5. She confirmed she still kept in touch with him. She confirmed his serious health problems including a spell in the Brompton Hospital, Fulham for a "serious life-threatening condition a few years ago". In response to the question as to his nationality, Mrs McAffee was quoted as saying that she believed he was Kosovan although acknowledged that there was a possibility he was from Albania. The records note that CSIT had themselves requested Serious Organised Crime Agency [SOCA] checks in Albania.
42. Authority to maintain detention was given on 14 July, on this occasion by an official with the position of "CCD Director". The comments recite the Claimant's illegal position within the UK and his representing a "risk of harm by virtue of his offences. He was thought to represent a risk of reoffending and a risk of absconding and those factors outweighed the presumption to his release." The efforts being made to document the individual and establish his nationality were noted. It was nowhere stated that there was a reasonable prospect of his removal in the near future.
43. A further meeting with CSIT took place on 25 July 2011. It was decided that the "most appropriate course of action was to attempt to set removal directions to Kosovo". However this failed. A little over two weeks after that decision a "removals pack" was forwarded to ReSCU on 11 August 2011. On the same day ReSCU advised removal could not be booked as there was "insufficient supporting evidence". On 16 August ReSCU sent an email stating that:

" "there is contradictory information provided in the original SEF in comparison to the Bio Data and discrepancies between parent and sibling names. The family names provided are very much solely Albanian names and subject to claims he cannot remember his address in Kosovo. This all gives cause to indicate the subject is Albanian. I suggest that the subject get a nationality interview done which be done very specific to where he claims he is from.(sic)"

A further nationality interview was booked.

44. That interview took place on 7 September 2011. Mr Mulliqi maintained that he was Kosovan. He stated that his father and brother were both in the Army in Kosovo. The interviewing officer advised Mr Mulliqi to have a face to face interview with the Albanian [Embassy] to assist in confirming his true nationality and he appeared willing to do this. On 9 September, the Claimant's solicitors wrote requesting the revocation of the deportation order, effectively making a fresh claim based on ECHR Articles 3 and 8. The Claimant's continued detention was approved on 14 September.
45. Meanwhile on 14 September and then again on 28 September the Claimant was interviewed on two further occasions. He again reiterated that he was Kosovan and on this occasion stated that he did not want to return to Albania. At the suggestion of officials, the Claimant made contact with the Red Cross in September 2011 to see if they could help in tracing his sister whom he believed to be in Italy. According to his subsequent witness statement made on 6 February 2012, the Red Cross had been unable to help him. Also in September 2011, the Borders Agency went through the Claimant's mobile phone to see if there were any contacts that could assist to establish his nationality. None were found.
46. The Claimant's continued detention was authorised on 10 October 2011, on this occasion by the Deputy Director. The risks of absconding and reoffending were said to outweigh the presumption to liberty. There is no statement that there was a reasonable prospect of removing the Claimant in the immediate future or at all.
47. A further application for bail was refused by the Immigration Judge on 18 November 2011. Part of the reasons for refusal of bail read as follows:

"The Panel who determined his deportation appeal were satisfied that he has relatives in Kosovo. He could obtain evidence to help establish his Kosovan nationality. I am satisfied that he has not provided all the assistance he could provide towards establishing his nationality so that a travel document can be obtained. He is partly responsible for the length of his detention. His history satisfies me that if granted bail he is likely to commit further offences and to abscond to avoid deportation."

48. In his witness statement of February 2012, the Claimant suggests that he has tried his best to assist the UKBA in giving any information he has about contacts he has in Kosovo, but goes on to suggest that he has lost all contact with any family that he had in Kosovo. He repeats his claim that he was separated from his family at a young age and that he is unaware of the whereabouts of any of his relatives.
49. On 20 December 2011 the Secretary of State gave notice of her decision refusing to revoke the deportation order against the Claimant. The Human Rights claim advanced was said to be wholly unfounded. The Claimant was told that directions would be given for his removal to Kosovo (not Albania).
50. The next detention review came at the end of December. On 29 December 2011 the relevant SEO recommended further detention citing the risks of absconding or re-offending. He also wrote this:

"A DO has been served, and the remaining barrier to removal is an ETD. The case worker has been working closely with our CSIT colleagues to establish nationality and procure an ETD. He has continued to frustrate the re-documentation process with a number of varied tactics and is the architect of his own position."

The decision was approved by the Director on 30 December 2011. It is unclear what was meant by the "varied tactics" by which the Claimant was said to have frustrated the re-documentation process.

51. The Claimant had at this stage remained in detention for more than 22 months. So far as the court has been informed, he had not been interviewed by either the Albanian or the Kosovan Embassies, and had merely had repeated discussions with various officials acting on behalf of the Secretary of State.
52. In late January 2012 these proceedings were issued on behalf of the Claimant, claiming that his detention was unlawful. They were received within UKBA on 25 January 2012.
53. The last detention review took place on 31 January 2012. Action since the previous review is described in the documentation in the following terms:

"The JR team requested a number of documents be located and the file transferred to them. This was completed on 26 January ………papers were filed on 30 January 2012 and we await the outcome …….Having contacted HMP Highdown it has not been possible to obtain telephone numbers of calls made by Mr Mulliqi while he was completing his custodial sentence this information will be fed back to CSIT. It was expected that a meeting with CSIT would take place on 26 January 2012 but it was not possible due to CSIT not having sufficient time."

The action plan for the next review period was set to be:

"Monitor the outcome of the judicial review. Given it was not possible to see CSIT on 26 January 2012, contact CSIT and arrange a meeting so that they may be able to offer advice on progressing the case. There are no other barriers to removal at this time aside his documentation (sic) and therefore further input from CSIT is required as to the next appropriate action."

54. In granting the authority to maintain detention the relevant SEO made the following comments after reciting references to the Claimant's offending and his assessment as likely to pose a risk of harm to the public:

"He has attempted to frustrate the progressions of UKBA obtaining an ETD for removal. Mr Mulliqi can be removed on an EU letter however there is the issue of establishing his true identity as previous attempts to remove him to Albania has been unsuccessful (sic). I have considered his release in line with Chapter 55 of the EIG however find that his presumption to release his outweighed by the risk of harm to the public and of absconding as he has no family ties."

55. As I have already indicated, the Claimant was granted permission to seek judicial review and was released on bail by Mr Justice Charles on 7 February 2012.

The Law

56. The power to detain pending removal from the UK is set out in paragraph 2 of schedule 3 to the Immigration Act 1971. The power is to be exercised "pending the making of a deportation order" and/or "pending his removal or departure from the United Kingdom." The power must be exercised consistently with the principles set out in R –v- Governor of Durham Prison ex parte Hardial Singh [1984] 1 AER 983, as restated and expanded in R (I)SSHD 2003 INLR 196, which authority was approved by the Supreme Court in R (Lumba)- v- SSHD and Others [2011] UKSC 21 [2012] 1AC 245.
57. The principles to be observed are now well settled. The power to detain must be used only with an intention to deport the individual and for that purpose; the potential 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.
58. The Supreme Court in Lumba dealt specifically with the situation where the individual concerned did not wish to return and did not co-operate in a voluntary return. The court confirmed that the refusal of voluntary return should 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."

See Lord Dyson JSC at paragraph 128. I bear in mind that a failure to co-operate in this context falls to be distinguished from a deliberate campaign of deception and misinformation: see the decision of John Howell QC sitting as a Deputy High Court Judge in R (Sino) - v- SSHD [2011] EWHC 2249 (Admin) and my decision in R(Amougou-Mbarga) -v- SSHD [2012] EWHC 1081 (Admin).

59. I also keep in mind the remarks of Carnwath LJ (as he then was) in R – (Krasniqi)-v- SSHD [2011] EWCA Civ 1549 at paragraph 12, when the judge stated that the Hardial Singh principles are not the equivalent of statutory rules, and went on to observe that it was not enough to fund a claim and damages for wrongful detention to demonstrate in retrospect that some part of the statutory process had taken longer than it should have done. His Lordship said there was a dividing line between administrative failing and unreasonableness amounting to illegality.
60. I also bear in mind the remarks of Blake J in R (MXL and Others) –v- SSHD [2010] EWHC 2397 (Admin). The effect of these observations was to underscore the distinction between the principles governing the refusal of bail by an Immigration Judge and the overall judgment as to the legality of the continuing detention for the purpose of removal. As Blake J said in paragraph 73:

"I appreciate that the Defendant can point to the fact that the IJ refused bail in December. As a matter of law, this is not a complete answer to the contention that the decision to detain was unlawful. It is not the IJ's function to decide on the legality of the detention or the rationality of the exercise of the power to detain. He or she must assume that the detention is lawful but may be mitigated in the exercise of discretion by admission to bail."

The Arguments

61. The Claimant's arguments can be summarised very shortly. He has never obstructed his removal, much less engaged in deception or a campaign intended to frustrate his removal from the UK. There is no evidential basis on which to displace his own account of his history. Although there may be detailed doubt about his age, he has always claimed to be born in Kosovo, to have been displaced at a young age to Albania and throughout to be of Albanian ethnicity. He has always said that his family was out of touch. He has been consistent in his position that he would co-operate with removal. He was prepared to co-operate with removal early in the process, as the Defendant's own notes confirm. Given the conditions in the Balkans at the time of his movement, there is nothing unlikely about his account. His poor use of language and poor reading, combined with his health problems and his youth, should have added to the urgency with which the Defendant dealt with his case. The Claimant's counsel has suggested that his detention was unlawful from the outset or in the alternative for a very large proportion of the time before his release and bail.
62. The Defendant submits that the matter should be taken in stages. The Claimant lodged an appeal against deportation on 24 March 2010 and detention was justified until that was resolved in July 2010. The Defendant then relies on the terms of the decision by the Immigration Judge as set out above concluding that the Claimant knew of family members continuing to reside in Kosovo.
63. The Defendant submits that thereafter it was reasonable for the Defendant to "persist with trying to obtain evidence from the Claimant in relation to his nationality……and not to allow the situation to be manipulated by the Claimant". The Defendant relies upon the bail applications as representing judicial oversight at well spaced intervals during 2011. In summary, the Defendant simply submits and that in the face of the Claimant's refusal to co-operate, the detention was justified throughout until the Claimant's release on bail.

Conclusions

64. In my judgment, the Defendant was fully entitled to detain the Claimant at the expiry of his prison sentence and to seek to deport him. There can be no doubt that there was lawful detention through to the appeal in July 2010. Given the findings of the Immigration Judge at the hearing in July, the Defendant was reasonably entitled to proceed on the assumption that the Claimant knew of living relatives in Kosovo but was declining to give their details. However, the picture is not of an unvarying refusal to co-operate since the Claimant was perfectly prepared to co-operate with a removal on 9 September 2010 and took no other positive step to prevent his removal. Indeed, he co-operated with the authorities in discussing his position repeatedly at interview and repeatedly stated the same story about his origins. This is not a case of active deception and frustration of removal.
65. What is striking about this story is the sequence of contradictory and ineffectual decisions and actions on the part of the officials acting for the Secretary of State. I fully recognise that theirs was not an easy task, but it is not unfair to conclude that by the end of the period of detention in late January 2012, the Defendant had not effectively advanced one step from the position they were in in late 2010. It is perhaps particularly striking that the Secretary of State took months before deciding to contact the Claimants' foster parents and then took months without being able to do so effectively. Police officers made contact with Mrs McAffee within 24 hours of the request that they should do so. So far as I am able to determine, none of the officials acting on behalf of the Secretary of State managed to make any connection about this case with either the Kosovan or the Albanian Embassies. Overall, the activity here was strikingly ineffectual and, perhaps more to the point, no-one on behalf of the Secretary of State reached the conclusion that they were getting nowhere.
66. Doing the best that I can and making every allowance for the inherent difficulty faced by the Defendant, it appears to me that by 10 October 2011 at the latest, the Secretary of State should have realised that they were not going to effect removal within a reasonable period. The Claimant had by now been detained for 19 months. They had really made no progress. The Claimant had not assisted removal, but had not mounted any active campaign to frustrate removal, and had indicated his preparedness to be removed. The decision to detain on this occasion was made by a senior official, who expressed no view that it was going to be practical to remove the Claimant within a reasonable period. In the light of the period of detention already undergone, the Defendant's officials should have released the Claimant on bail, albeit with significant conditions and restrictions.
67. I therefore find that the Claimant's detention was unlawful as from 10 October 2011.