QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| Queen on the application of P H H
|- and -
|The Secretary of State for the Home Department
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Joanne Clement and Bilal Rawat (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 23/08/2012 and 21/09/2012
Crown Copyright ©
Mr C M G Ockelton :
A. The claimant's immigration history and convictions
B. Attempts to obtain documentation for the claimant
"Hi, this chap is definitely lying. No CRS trace is found. The provided address is not correct as there is [no] such road in Jiujiang City and also there are no district/town/village information. It is not genuine, either. I think he is highly likely to be Fujianese but he provided one false in other province to frustrate our investigation. His name, looks weird really. The Chinese characters in his given names are not meaningful and are rarely used in people's names. So I think he did not provide his genuine [name] either. His parents' names sound like nick names. All in all, every piece of info he provided is very dodgy and needs to be revised."
"2. The reason given by the Chinese authorities for not being able to issue me with a travel document is that I have given an incorrect road name for my former home address; this is not true. I have provided by correct address at the time. The address may as well have changed, as far as I am aware since I left China over seven years ago there has been a huge amount of development and change due to industrial development. Towns, villages and roads have been rebuilt; the address at which I used to live may well no longer be in existence. I am not in contact with anyone who would be able to confirm this. I can think of no other reason why the Chinese authorities would not be able to locate my former address.
3. I would like to confirm that I continue to fully comply with all attempts to obtain a travel document on my behalf, being truthful and providing all the information that I can."
"We have been unable to identify this subject given the inadequate information he has provided. Not only has he given very scant details re original home address but also he has refused to provide his identity card details and other family information which would enable us to verify his identity. It is our experience that the Chinese Public Security Provincial Officials retain accurate household registration details even (and especially) where there have been new developments and old districts demolished. This subject is patently not providing truthful bio details and home address. It would appear that his stance here has not changed since the "witness statement" of 2007".
"Officials believe subject is from Fu Qing City, Fujian Province"
C. Information provided by the claimant
D. Detention reviews
(1) First, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(2) secondly, the deportee may only be detained for a period that is reasonable in all the circumstances;
(3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect the deportation within that reasonable period, he should not seek to exercise the power of detention;
(4) the Secretary of State should act with reasonable diligence and expedition to effect removal.
"The length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
" There is thus an apparent tension between the approach the Supreme Court adopted in Lumba to periods of detention for which it may be said the detainee is responsible: a period of detention is largely to be disregarded in the case of a hopeless appeal but it should not be similarly disregarded merely because it could have been brought to an end by a detainee agreeing to leave voluntarily. How then should a refusal by an individual without valid passport to co-operate in obtaining travel documents to enable him to return be treated when assessing compliance with the second Hardial Singh principle and what significance should be given to efforts that he may make to frustrate their acquisition by supplying false or misleading information?
 In my judgement the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment 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 be well be longer than it will be in the case of 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 one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him. That is not merely the case at common law: see eg R (Rostami v Home Secretary  EWHC 2094 (QB) at -; R (HY) v Home Secretary  EWHC 1678 (Admin) at . It is also a conclusion to which article 5 of the Convention points. In Mikolenko v Estonia (2009) Oct 9th App No 10664/05 the European Court of Human Rights found that there was a breach of article 5 of the Convention when an individual was detained when it was impossible to remove him from Estonia without his co-operation which he was not willing to give."
" But the circumstances may be such that, even if the Secretary of State had acted with reasonable diligence and expedition, an individual would still have been in detention and the period for which he has been detained may otherwise still be reasonable. In such a case the Secretary of State's failure would have no causative effect on the length of such an individual's detention. As mentioned above, Lord Dyson indicated in Lumba that one of the factors to be taken into account in determining whether an individual has been detained for more than a reasonable period was the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles. This would suggest that any failure by her to act with reasonable diligence and expedition to effect removal would not necessarily of itself in all cases render any further continued detention unlawful. That is also supported by Lady Hale's statement in SK supra at  that "if the Secretary of State is dragging his feet, then the period may become unreasonable".
 On behalf of the Claimant Ms Harrison was minded to accept that the Secretary of State's failure to act with reasonable diligence and expedition to effect removal would not make detention unlawful unless that had had an effect on the length of an individual's detention. Unsurprisingly perhaps Mr Thomann on behalf of the Secretary of State agreed. In my judgment this may well be the case. But an earlier failure to act with reasonable diligence and expedition may well mean that it is reasonable to expect that the Secretary of State should act thereafter with greater diligence and expedition than she might otherwise reasonably be expected to do. Thus, even if that failure does not itself make detention unlawful subsequently, it may affect what a reasonable period in such a case would be. "
Application of the law to the facts