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
		21 December 2012

His Honour Judge William Birtles :

Introduction

1. This is an unlawful detention claim. The Claimant is subject to a deportation order and is detained under the Defendant's immigration powers. He has been so detained since 1 November 2009, when the custodial element of his sentence of imprisonment for conspiracy to supply a Class A drug (cocaine) expired.
2. The Claimant seeks to challenge his continued detention. Permission to apply for judicial review was granted by Ms Maura McGowan QC (sitting as a Deputy High Court Judge) at an oral permission hearing on 24 July 2012, having been refused permission on the papers by Mr Stuart Catchpole QC (sitting as a Deputy High Court Judge) on 27 April 2012.
3. The Claimant is represented by Mr Toby Fisher of counsel. The Defendant is represented by Mr Mathew Gullick of counsel. I am grateful to both Counsel for their written and oral submissions. I heard the case on 31 October and 1 November 2012. At the conclusion of the hearing I reserved judgment.

Factual background

4. The Claimant arrived in the United Kingdom and claimed asylum in 2003, based on an alleged fear of persecution by factions in the war in Liberia. His asylum claim was refused and his appeal was dismissed on 16 August 2004. He has since remained in the United Kingdom unlawfully. Prior to his arrest in February 2007 he did not seek to regularise his stay in the United Kingdom and for a significant period of time was therefore registered as an absconder.
5. The Claimant was arrested by the police in February 2007, following which he was placed in immigration detention and shortly thereafter released on bail and tagged. He did not fully comply with his bail restrictions in terms of reporting/residence: see e.g. trial bundle C/248.
6. In February 2008, the Claimant was remanded in custody. In April 2008 the Claimant was sentenced at Inner London Crown Court to three-and-a-half years' imprisonment for conspiracy to supply a Class A drug (cocaine): trial bundle A/226-229.
7. In June 2009, whilst the Claimant was serving his sentence, the Defendant informed the Claimant of his liability to deportation. The Claimant then again claimed asylum, this time on the basis that he feared persecution because he was homosexual. That claim was refused in November 2009.
8. In December 2009 a deportation order was made: trial bundle A/193. In the meantime the Claimant had been released from the custodial part of his sentence on 1 November 2009 and was thereafter detained under the Defendant's immigration powers.
9. The Claimant appealed against the deportation order. His appeal was dismissed by the Asylum and Immigration Tribunal in February 2010: trial bundle A/212-225. He was refused permission to appeal.
10. In March 2011, the Claimant made an application for indefinite leave to remain, outside the Immigration Rules: trial bundle A/65-69. The Defendant treated this as an application to revoke the deportation order. That application was refused on 13 January 2012: trial bundle A/170-183. The Claimant again appealed to the First-Tier Tribunal which dismissed his appeal on 1 March 2012: trial bundle A/203-211. He has been refused permission to appeal to the Upper Tribunal against that decision. His appeal rights are therefore exhausted.
11. The Claimant claims to be Liberian (although the Defendant's records show that in March 2009 he admitted to being Nigerian but then withdrew that admission, stated at paragraph 16 of the Claimant's Grounds). However, in January 2010 the Liberian authorities refused to issue an Emergency Travel Document ("ETD") for him on the basis that he is not Liberian, having during his interview with them made constant references to Sierra Leone and spoken in a dialect from Sierra Leone.
12. The Defendant has made repeated efforts to ascertain the Claimant's true nationality. These are set out in more detail in the Detention Reviews and the Defendant's evidence to which I will return later. During 2010 the Claimant was re-interviewed by UKBA officials but maintained that he was a Liberian who had been born in the Sudan. However he was unable to answer all questions about Liberia correctly. Staff at Tinsley House Immigration Removal Centre also indicated that the Claimant was believed to converse with fellow detainees in a Nigerian language (as stated at paragraph 16 of the Claimant's Grounds).
13. Following a fingerprint check with authorities in other European countries, it was discovered in 2011 that the Claimant had been encountered by French police in 2002 when he gave the name of "Alex Smith Igwe". French records indicated that the Claimant was Nigerian. The Claimant now admits using what he says was a false Nigerian identity of Alex Igwe "for a number of years" whilst living in the Netherlands (see paragraph 19 of the Claimant's Grounds).
14. The Claimant is currently in Harmondsworth Immigration Removal Centre following a history of some disruptive behaviour whilst in detention. He has been held in immigration detention since 1 November 2009 first, pursuant to section 32(5) of the UK Borders Act 2007 (the 2007 Act) because the Defendant considered that that section applied pending the making of a deportation order, then under Schedule 3 to the Immigration Act 1971 (the 1971 Act) after the Defendant decided on 18 December 2009 that section 32(5) of the 2007 Act did apply to the Claimant and that a deportation order was made against him: trial bundle A/193.
15. In January 2012 the Claimant was interviewed by the Nigerian High Commission at Colnbrook Immigration Removal Centre where he again claimed to be Liberian. He was subsequently re-interviewed by the Nigerian High Commission on 15 March 2012 but it was reported to the Defendant that the Nigerian authorities would not issue an ETD as the Claimant was not co-operative in the interview. Since that interview, officials of the Defendant have been arranging and conducting further enquiries into the Claimant's true identity and nationality. This has involved re-referring the case to the Country Specialist Investigation Team. The Defendant says those enquiries are ongoing and that she continues to believe that (subject to the result of those enquiries) there is a reasonable prospect of removing the Claimant from the United Kingdom within a reasonable period of time. The present position is set out in the witness statements filed on behalf of the Defendant.
16. The barrier to the Claimant's deportation to date is the lack of ETD or other travel document(s) sufficient to enable the Claimant to be deported from the United Kingdom. The Defendant also argues that the Claimant's various applications, outstanding appeals in the Tribunals system and applications for permission to appeal also constituted a barrier to his removal. However it is accepted that since March 2012 the Claimant's appeal rights have been exhausted.

Legal framework

17. I gratefully adopt the statement of the law as set out by Mr Justice Haddon-Cave in R (on the application of Ahmed Yakoub Mesbah Belkasim) v. Secretary of State for the Home Department [2012] EWHC 3109 (Admin). At paragraphs 102-106 Mr Justice Haddon-Cave said this:

"The Law

102. The SSHD's powers to detain are contained in Schedule 3 paragraphs 2(2) and 2(3) of the Immigration Act 1971 (as amended).

Hardial Singh principles

103. There are limitations on the SSHD's power to detain. These were originally articulated by Woolf J in Re Hardial Singh [1984] 1 WLR 704, but then usefully distilled by Dyson LJ in R (I) v SSHD [2002] EHCA Civ 888, [2003] INLR 196 (46). Dyson LJ's distillation was approved by the SC in R (Lumba and Mighty) v Home Secretary [2001] UKSC 12, [2011] 2 LR 671 at (22) and is as follows:

(1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

(2) 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 deportation within that reasonable period, he should not seek to exercise the power of detention.

(4) The Secretary of State should act with the reasonable diligence and expedition to effect removal.

104. The factors relevant to determining what is a "reasonable" period of detention will include (per Dyson LJ at [48]):

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 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.

Ten further useful principles

105. The following further ten useful principles can be gleaned from other leading cases (such as R (Lumba and Mighty) v SSHD [2011] UKSC 12 and Richards LJ's judgment in R (MA) v SSHD [2010] EWCA Civ 1112):

(1) There can be a 'realistic' prospect of removal without it being possible to specify or predict the date by which the removal can reasonably be expected to occur and without any certainty that removal will occur at all (MH) at [65]).

(2) The extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors ((MH)) at [65]).

(3) The risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it will become a trump card ('Lumba' [108]-[110] and [121] citing Dyson LJ in R (I) at [53]).

(4) The weight to be given to time taken up by an appeal depends on the facts, but much more weight should be given to detention during a period when the detained person is pursing a meritorious appeal than to detention during a period when he is pursuing a hopeless one (Lumba at [121]).

(5) A detainee who will not comply with the ETD process or other requirements of detention and is doing everything he can to hinder the deportation process, may reasonably be regarded as likely to abscond (Lumba at [123]; MH at [68(iii)]).

(6) Refusal of voluntary return does not necessarily permit an entrance of risk of absconding (Lumba at [123]).

(7) Where return is not possible (for reasons that are extraneous to the person detained), the fact that he is not willing to return voluntarily cannot be held against him, since his refusal has no causal effect (Lumba at [127]).

(8) Where a person has issued proceedings challenging his deportation, then it is reasonable that he should remain in the UK pending determination of those proceedings and his refusal to accept an offer of voluntary return is irrelevant (Lumba at [127]).

(9) Even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the SSHD's wish to detain. If it is relevant, its relevance is limited (Lumba at [128]).

(10) There is no maximum period after which detention becomes unlawful.

106. In my view, citation of particular cases in which different periods of detention were, or were not, held to be unlawful if not particularly helpful since, in this area, cases are highly dependent on their own facts."

18. I respectfully agree with everything Mr Justice Haddon-Cave said and I propose to apply that statement of the law to the facts of this case.
19. The Claimant submits that his detention is unlawful on three grounds:

1) There is no realistic prospect of removal in a reasonable period of time (Hardial Singh principle (iii)).

2) A reasonable period of time has passed in all the circumstances (Hardial Singh principle (ii)).

3) The Defendant has failed to act with reasonable expedition to secure the Claimant's removal (Hardial Singh principle (iv)).

20. I take each ground in turn.

Ground 1: there is no realistic prospect of removal in a reasonable period of time (Hardial Singh principle (iii).

21. Mr Fisher submits that the current barrier to removal is the lack of any travel documentation. There is no pending or current application for an ETD from any embassy and this has been the situation for the last nine months. He submits that although the Defendant asserts that an ETD can be secured, there is no evidence to support that assertion, and certainly no evidence to support the assertion that it can be obtained soon. He goes on to analyse the position in his submissions as follows. The Nigerian Embassy has said that it requires evidence that the Claimant is Nigerian. Unless there is a realistic prospect of providing that evidence soon, there is no realistic prospect of removal soon. One answer is that there is no realistic prospect of providing that evidence soon because the Claimant is Liberian and not Nigerian.
22. Even on the alternative assumption that the Claimant is Nigerian, there is no evidence to support the Defendant's belief that an ETD can be secured any time soon. Even if the Claimant is Nigerian, it is not realistic to assume that he is suddenly going to tell the truth and provide evidence of his true nationality: over the course of nine years he has insisted that he is Liberian. That indeed is the difference between the parties. The Claimant asserts he is Liberian. The Defendant asserts he is Nigerian.
23. Mr Fisher refers me to the witness statement of Ms Rachel Lansana at paragraphs 29-35: trial bundle C/20-21. She says this:

"Action Due to be Taken

29. The next step is to follow up with the police on 6 September 2012. Once the police have responded to me the next steps depend on the content of that response.

30. If the Police interviews and investigations provide further information as regards Mr Momoh's identity I will prepare the necessary documentation. This would include an ETD application to whichever country the surety knows Mr Momoh is a national of, and the necessary bio data, photographs and case summaries. This application can result in a telephone interview or face to face interview depending on the country in question, and ultimately Mr Momoh's removal.

31. If the Police interviews and investigations provide evidence that Mr Momoh is in fact Nigerian, that information will be provided to the Nigerian officials as requested by them after his face to face interview on 15 March 2012. That information would allow the Nigerian officials to issue an ETD and facilitate the removal of Mr Momoh.

32. If the Police investigations fail to generate any new information, I intend to suggest to CSIT that I send an assertive letter to the Nigerian High Commission setting out our belief that Mr Momoh is Nigerian, and the evidence that supports that assertion. This letter may result in the issue of an ETD.

33. I have already spoken to my Assistant Director, Brian Finnegan, with regards to conducting a Language Analysis interview. These interviews were discontinued by UKBA around 2010. This interview involves a telephone conversation between Mr Momoh and a language analyst who should be able to determine Mr Momoh's correct country of origin. This has previously been attempted with Mr Momoh. This process would require Mr Momoh's consent and co-operation to be effective.

34. I also plan to interview people who live at and around Mr Momoh's previous stated addresses in order to discover whether anyone in the area knows him and is aware of his nationality. I am aware that it has been some time since Mr Momoh resided at the relevant addresses. However I consider it likely that local shop-owners would have spoken to him and would recognise him.

35. If Mr Momoh continues to lie about his true identity and frustrate attempts to obtain an ETD I will consider bringing a prosecution for non-compliance s.35(3) Asylum and Immigration (Treatment of Claimants) Act 2004.

36. I continue to review Mr Momoh's detention every 28 days in particular feasible time for removal, non-compliance, circumstances as a whole, risk of absconding and risk of re-offending."

24. Mr Fisher analyses the steps in this way:

1) The Nigerian Embassy has asked for evidence that the Claimant is Nigerian. An "assertive letter" is not evidence. Moreover, in internal documentation, the Defendant is only prepared to go as far as to say "we believe (Mr Momoh) could be Nigerian": trial bundle B/144. No assertion of that belief would persuade the Nigerian authorities to issue the ETD.

2) The Claimant's previous surety is likely to confirm that the Claimant is Liberian given that she has been his surety during his detention and has previously supported him and his case. In the unlikely event that she says that she thinks he is Nigerian, that is hardly the kind of evidence to convince the Nigerian Embassy that the Claimant is Nigerian.

3) Even if people who live in the vicinity of Mr Momoh's previous address (he lived in the area five years ago) knew Mr Momoh well enough to know his nationality or remember him after more than five years, whatever they say is hardly the kind of evidence that would convince the Nigerian Embassy that the Claimant is Nigerian.

4) Prosecution is not likely to lead to the acceptance by either the Liberian or Nigerian authorities that he is of one of those respective nationalities.

25. Mr Gullick submits that there is evidence that an ETD can be obtained within a reasonable period and he refers me to Ms Lansana's witness statement and submits that there is a real likelihood that those inquiries by Ms Lansana will bear fruit. In particular, he asserts that the evidence suggests that the Claimant is Nigerian, rather than Liberian, and that he has been frustrating the removal process.

Discussion

26. I am persuaded by Mr Fisher's criticisms. In addition, I note the following matters:

(a) The witness statement of Ms Lansana is dated 11^th September 2012, i.e. five days after the proposed follow-up with the police on 6^th September 2012: witness statement paragraph 29. Ms Lansana says nothing in the witness statement about the results of the follow-up and there was limited evidence from her (or anyone else) by the time of the hearing on 31^st October 2012 and 1^st November 2012. I therefore know nothing about the result of the police investigation and/or which option Ms Lansana is going to follow.

(b) I note the tentativeness in the witness statement. Thus in paragraph 30 "This application could result ….." and "ultimately Mr Momoh's removal". In paragraph 32 "I intend to suggest to CSIT ….." and "This letter may result in the issue of an ETD.".

(c) The language test has been used before and did not assist: witness statement paragraph 33.

(d) Finally, I ask myself the question: "Why has this action not been taken in the previous three years?"

27. I turn to the Defendant's submission that the Claimant has failed to co-operate with the removal process. The Claimant has claimed to be Liberian and refused to accept that he is a different nationality, i.e. Nigerian. I am not satisfied on the evidence before me that the Claimant has failed to co-operate with the ETD process. He has agreed to interviews when asked to do so by both the Liberian and Nigerian authorities. I do not find the documentation identifying the Claimant as a Nigerian national named Alex Smith Igwe as conclusive either way. There appears to be no attempt to show this documentation to the Nigerian High Commission in London to validate it. The use of false documentation by illegal immigrants is well known. Neither do I place any reliance upon Ms Lansana's comments in paragraph 9(d) of her witness statement.
28. I am not able to conclude on the balance of probabilities that the Claimant is either Liberian or Nigerian. If he is Liberian then there is no realistic prospect of removal. The Liberian Embassy refused to issue an ETD in March 2010. The Defendant has always taken the view that he is Nigerian and since March 2010 has not pursued returning the Claimant to Liberia. If the Claimant is Nigerian then there has been no realistic prospect of removal since the Nigerian High Commission refused to issue an ETD in March 2012. For the reasons I have already given, I do not think that the further inquiries to be made by the Defendant will alter that situation at all.

Ground 2: A reasonable period of time has expired in all the circumstances

29. I have already indicated that I do not find the citation of particular cases in which different periods of detention were or were not, held to be unlawful particularly helpful since cases in this area of law are very fact-sensitive.
30. In this case Mr Fisher accepts that it would be reasonable to conclude that the Claimant presents some risk of re-offending and some risk of absconding. However, he submits that those risks are not exceptional and are, at best, low to moderate. I turn to consider those issues.
31. Mr Gullick submits that the Claimant poses a high risk of absconding. He has now completely exhausted the appeals process and so has no incentive to comply with reporting restrictions. He has no community ties and is unwilling to leave the United Kingdom, having remained here unlawfully for several years. He has previously absconded and his presence in the United Kingdom only came to light when he was arrested on serious criminal charges. On his own case, he lived in Europe for several years under a fraudulent identity. He entered the country illegally.
32. In my judgment, while there is some risk of absconding in this case, it is only of a low or medium risk and can be dealt with by suitably rigorous bail conditions.
33. I turn to the issue of re-offending. The Claimant is now aged 37 years of age, his date of birth is 30^th October 1975. He has one conviction for conspiracy to supply Class A drugs and was sentenced to 3½ years' imprisonment in February 2008. The sentence reflected (a) his plea of guilty, (b) his assistance with the police investigation and (c) his role as a courier: trial bundle A/226-229. He has not been charged or convicted of an immigration offence in this country. I have no adequate information as to whether he has been convicted of a criminal offence in any other country.
34. Finally, I note that the Claimant has made a number of applications for bail to the Tribunal, all of which have been refused. This is a relevant consideration: see R (on the application of Malek Hossein Abdollahi) v. Secretary of State for the Home Department [2012] EWHC 878 (Admin) at paragraph 70.
35. A final factor which I think I am entitled to take into account is whether or not the Claimant has pursued unsuccessful legal challenges. I reject Mr Fisher's submission that they are irrelevant: Lumba at paragraph 121. The Claimant's appeal rights were exhausted on 1^st March 2012 or shortly thereafter when his application for permission to appeal to the Upper Tribunal was dismissed.

Discussion

36. Taking into account (a) the fact there is some risk of absconding, that can be met by stringent bail conditions; (b) there is a moderate risk of re-offending; and (c) that the Claimant's appeal rights are now exhausted, I am satisfied that the Claimant has been detained for a period that is longer than is reasonable. The Claimant was interviewed by the Nigerian High Commission at Colnbrook Immigration Removal Centre in January 2012 where he again claimed to be Liberian. He was subsequently re-interviewed by the Nigerian High Commission on 15^th March 2012, but it was reported to the Defendant that the Nigerian Government would not issue an ETD as the Claimant was not co-operative in the interview. In my judgment, that should have triggered an urgent re-appraisal of the Claimant's detention and any further inquiries should have been made within a reasonable period of time, which I would hold to be three months. It follows that the Claimant has been unlawfully detained since 15^th June 2012.

Ground 3. The Defendant has failed to act with reasonable expedition to secure the Claimant's removal

37. Mr Fisher submits that the main barrier to removal throughout was the absence of an ETD and it was therefore incumbent on the Defendant to proceed with reasonable expedition to secure an ETD. He submits that there was a real failure between the Liberian Embassy refusing to issue an ETD in March 2010 and the Nigerian Embassy refusing to issue an ETD in March 2012. Between those two dates the Claimant had no other ETD interviews. Mr Fisher refers to the fact that the Defendant's evidence is that she suspected Mr Momoh of being Nigerian since at least early 2010 and by 7^th February 2011 became aware that the Claimant's fingerprints matched the identity of a Nigerian national, Alex Igwe. However, no application for an ETD was made to the Nigerian authorities until October 2011 and no interview arranged until 15^th March 2012. There were "logistical errors" in arranging that interview and says the logistical errors were the fault of the Defendant.
38. The second submission made by Mr Fisher is that since the Nigerian High Commission refused to issue an ETD in March 2012, the Defendant has failed to proceed with reasonable expedition to support her claim that the Claimant is Nigerian. He refers me again to Ms Lansana's witness statement which I have set out above.
39. Against that, Mr Gullick submits that the Defendant has acted with reasonable expedition in the circumstances of this particular case. The Claimant has been un-co-operative and provided (even on his own case) untrue accounts to the Defendant and (even on his own case) used a fraudulent identity and forged identity documentation.

Discussion

40. I am satisfied that the Defendant did act with reasonable expedition in the circumstances in pursuing the ETD application to the Nigerian authorities in 2011-2012. That was based upon the notification by the French authorities of the Nigerian documentation that the Claimant had used in Europe. There were logistical errors in arranging the Claimant's interview with the Nigerian High Commission, but I do not find that those errors meant that the Claimant's detention was therefore rendered unlawful. Furthermore, the Claimant was still pursuing his unmeritorious attempt to have the deportation order revoked throughout this period.
41. However, when I turn to the position after March 2012 I am not satisfied that the Defendant has acted with reasonable expedition. For the same reasons that I have already given, I find that any further inquiries after the refusal by the Nigerian High Commission of an ETD should have been completed within a reasonable period after that date which I have said is three months. I can see no possible reason why the inquiries set out by Ms Lansana in her witness statement could not have been completed within that time and a decision reached by the Nigerian High Commission. I have considered R (on the application of Krasniqi) v. Secretary of State for the Home Department [2011] EWCA Civ 1549, but the difference between that case and this is that I have found that the Claimant has shown "a specific period during which, but for the failure, he would no longer have been detained": per Carnwath LJ at paragraph 12.

Conclusion

42. For these reasons, I find that the Claimant has been unlawfully detained since 15^th June 2012 when he should have been released. He is therefore entitled to damages and to be released. When this judgment is handed down I will hear Counsel on the questions of damages, release from detention and costs.