England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 July 2013

Mr C M G Ockelton :

1. This claim has a long history: it was filed on 28 August 2008. It originally challenged a number of issues in relation to the Secretary of State's dealings with the claimant. Following amendments, the sole issue now relates to the legality of the claimant's detention under the Immigration Acts between 4 July 2007 and 14 August 2009.

The Claimant

Personal History

2. The claimant is a national of Iraq. He came to the United Kingdom on a student's visa in March 1973. His student leave was apparently extended twice. In January 1976 he married a British National. He claims that he subsequently sought, and was granted, indefinite leave to remain as a spouse: that is a matter to which I shall have to return. There were two children of the marriage. The claimant and his wife were divorced some time in 1986 or 1987. In 1989 he married again. The claimant has subsequently had another long-term relationship. It is not said that he is in contact with any of his previous partners or the children.
3. The claimant has a substantial criminal record. He has twenty convictions for thirty-five offences in the period from 1977 to 2004. His convictions include threats to kill, for which he was sentenced for four years imprisonment in 1990, various drug offences, fraud, forgery, theft and handling stolen goods. On 21 May 2004 he was convicted of supplying crack cocaine and was sentenced to five years imprisonment.

Immigration History

4. Whether or not he had indefinite leave to remain, the claimant came to the Secretary of State's attention following his conviction in 2004. There is an internal minute dated 5 March 2006, concluding that deportation action against him was not appropriate at that time. Soon after that, however, the claimant, still serving his prison sentence, claimed asylum. His claim was refused, and the defendant issued a decision to make a deportation order, no doubt in order to ensure that he had a right of appeal (there being, generally speaking, no statutory right of appeal against the refusal of asylum). The claimant did appeal. The Tribunal heard his appeal in October 2007. It concluded that the claimant had fabricated his account of his past in order to endeavour to remain in the United Kingdom. It regarded him as not credible in relation to his own history, his account of his relatives in Iraq, and his claim to have obtained indefinite leave to remain in the United Kingdom. The Tribunal dismissed his appeal, and following the expiry of his rights of appeal against the Tribunal's decision, the Secretary of State acted upon the decision to make a deportation order: the order was signed on 5 March 2008.
5. The present proceedings were begun nearly six months later. On 8 September 2008 the Secretary of State revoked the deportation order, being persuaded by decisions of the Tribunal and the Court of Appeal (HH (Iraq) v SSHD [2009] EWCA Civ 727) that it perhaps ought not to have been made. There was further correspondence between the claimant's solicitors and the defendant on the substantive merits of the claimant's claim not to be subject to deportation action. The defendant was not persuaded, and on 10 November 2008 notified a new decision to make a deportation order against the claimant. That decision carried a right of appeal, which the claimant again exercised.
6. The appeal was heard by the Tribunal and in a determination issued on 1 April 2009, the Tribunal allowed the claimant's appeal. It declined to ignore the earlier Tribunal's findings as to the claimant's credibility, and accordingly concluded that he had not established that he was entitled to refugee status or humanitarian protection. Taking into account new evidence that had not been before the earlier Tribunal, however, it concluded on the balance of probabilities that the claimant had been granted indefinite leave to remain in the 1970s. It thus moved on to its consideration of Article 8 on the basis that the claimant's presence in the United Kingdom "has been lawful throughout". Its judgement on Article 8 was made, of course, on the basis of the facts as they were at the time of the hearing in the spring of 2009. By then the evidence was that the claimant had been drug-free for about five years, and there was character evidence from a number of individuals including some very strong support. The Tribunal concluded that deportation action against the claimant would not be proportionate and would thus breach his Article 8 right to continue the private life that he had had in the United Kingdom for so many years.
7. The Secretary of State sought reconsideration of that decision. An order for reconsideration was made, but in a determination sent out on 27 July 2009 Senior Immigration Judge Moulden found that the Tribunal had not made an error of law. It was entitled to follow the first Tribunal's assessment of the evidence as to the claimant's past in Iraq, but to reach its own conclusion on the matter on which there was new evidence; it had apparently taken into account all relevant factors in deciding the proportionality of deportation and although "the conclusion may have been finally balanced" the Tribunal was entitled to reach it.
8. That decision meant that the Secretary of State's notified intention to make a deportation order against the claimant was no longer effective. The claimant followed it up by issuing judicial review proceedings challenging the defendant's failure to "confirm" his indefinite leave to remain. The defendant responded by indicating an intention to revoke his indefinite leave to remain. The claim was settled by consent. The claimant was granted indefinite leave to remain on 23 February 2010 and, for the avoidance of doubt, on 27 September 2010 the Secretary of State indicated that there was on that date no longer any intention to revoke it.

Detention History

9. The custodial part of the claimant's sentence following his conviction of his most recent offence expired on 4 July 2007. Acting under the powers in the Immigration Act 1971, the defendant continued the claimant's detention. Thus, he was in immigration detention at the time of his two appeals, and the events between them. The claimant was released from immigration detention on 14 August 2009, following the endorsement of the allowing of his appeal against the second decision to make a deportation order.
10. During the period of his detention regular reviews appear to have taken place in accordance with the relevant guidance, save that there were no reviews in June, July or August 2008.

The Law

11. Although the Secretary of State's power of detention, derived from Schedules 2 and 3 to the Immigration Act 1971, is not subject to any express limitation in the Act itself, a number of well-known authorities show that it is circumscribed in a number of ways.
12. First, there are the "Hardial Singh" principles, now authoritatively stated in Lumba v SSHD [2011] UKSC 12 at [22]:

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

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

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

13. The second constraint is that any decision to detain, or to maintain detention, must be one which can survive challenge on general public law grounds. If there is a published policy, the decision in question must be one which complies with that policy, as Lumba itself shows. Further, if there is a published policy dealing with the treatment of an individual whilst in immigration detention, his treatment must comply with that policy, otherwise the detention itself risks being unlawful. In Kambadzi v SSHD [2011] UKSC 23, there had been a departure from the Secretary of State's declared policy of conducting regular reviews by officers at prescribed levels. The departure from the practice laid out in the policy was described by the trial judge as "deeply disturbing and profoundly shocking". In those circumstances, the claimant could say that his detention was unlawful.
14. Unlawful detention in these circumstances amounts to the tort of false imprisonment, for which a claimant is entitled to damages. The damages will, however, be no more than nominal if the claimant would have been detained in any event.
15. In applying these principles, however, it is important to remember that each decision to detain, or to maintain detention, falls for assessment on the basis of the facts and the circumstances at the time the decision was made. Although a court is inevitably looking back on a series of past facts, this is not an occasion for the exercise of hindsight. A person making a decision at a particular time is not in retrospect to be fixed with knowledge of the future. He can be criticised only for a fault in his approach to the circumstances as they were at the relevant time. That will generally mean that if there is an administrative order in place he is entitled to rely on it. Its subsequently being set aside or cancelled is irrelevant, save in the case where the order so obviously has some defect that anybody dealing with it would be bound to question whether he should rely on it. Similarly, anybody who needs to make a judgement about what will or may happen in the future is entitled to rely on the circumstances at the time. He is entitled to intend or hope for events which, as it transpires, may not happen. That they did not happen is irrelevant, unless his judgement at the time was unreasonable.
16. There is now a considerable body of decisions of this court on individual claims that immigration detention was unlawful. As each claim has to be decided on its own facts, comparison of those decisions is in my judgement not particularly useful. Little is to be gained by comparing the length of detention in one case with the length of detention in another, for example. On the other hand, if a claimant challenges an assessment of future possibilities, it seems to me that it may well be of assistance to the defendant if she can show not merely that other officers were making similar assessments, but also that judges in similar cases have held that those assessments were not unreasonable at that particular time.

Applying the Principles

17. Mr Nathan has made a painstaking study of the facts and I intend no discourtesy to him if I do not deal in detail with each of his submissions. The general picture is clear. From 4 July 2007 to 9 September 2008 the claimant's detention was (at least partly) motivated by the unlawful policy identified in Lumba: he is entitled to damages, which will be merely nominal unless he would not otherwise have been detained. In the rest of his detention, there was a period of three months during which detention reviews were not undertaken. The claimant submits that that makes his detention, during those three months at any rate, unlawful. The Secretary of State does not accept that the Kambadzi principle applies where the detention, taken as a whole, was subject to proper administrative process, but is prepared to accept for the purposes of argument that the same principle applies as in the earlier period: that is to say damages are available, which will be only nominal if the claimant would have been detained in any event.
18. The claimant's case thus has to be, and is, that the decisions to detain him and to maintain his detention were decisions which would not have been reached if those making the decisions had properly considered all relevant material available to them.
19. That submission is based on a number of threads of argument.

Indefinite Leave to Remain

20. The first of those arguments is that the claimant had indefinite leave to remain. That is an assertion the claimant has made at a number of points, and there is a note in a minute of the defendant's, dated 9 May 2007, suggesting that that was the case. Further, as I have indicated, the Tribunal found on 1 April 2009, applying the standard of the balance of probabilities, that the claimant had established that he had been granted indefinite leave to remain at some time in the 1970s.
21. I am not engaged in considering an appeal against that decision, but it does seem to me that, before it was made, nobody could realistically have expected it. First, the claimant has never given any precise details of his application for leave or the date of the grant. The application is said to have followed the claimant's first marriage, but whether the grant of leave took effect at the end of his student leave, or whether he made an application during that student leave, and all other aspects of the application and grant process, have never been the subject of any evidence. It has to be remembered that the claimant's known criminal career began shortly after that marriage. Further, there has been, so far as I am aware, absolutely no explanation of why the claimant claimed asylum in 2006 if he had indefinite leave to remain at that time and (as is clear) had been told that he was not threatened with deportation.
22. In any event, it is clear that a person who has indefinite leave to remain can be made the subject of a deportation order. When a deportation order is made, its making invalidates any previous grant of leave to remain, and any grant made while the deportation order is in force is also invalid: see s.5(1) of the Immigration Act 1971.
23. That statutory provision is of some importance in this case for a number of reasons. First, it deals conclusively with the claimant's argument that the decision to deport him was unlawful in the absence of a previous (or separate) decision to revoke indefinite leave to remain. Secondly, it shows that on 5 March 2008 any leave that the claimant had was invalidated by the making of the deportation order on that date. There are no provisions for the automatic reinstatement of the leave on the revoking of a deportation order: it would have to be granted again. It was not granted until after the Tribunal's decisions in 2009. It follows that the Tribunal that found that indefinite leave to remain had been granted appears to have been incorrect in saying that the claimant's presence in the United Kingdom had been lawful throughout: even if he had indefinite leave to remain until then, he did not have any leave after 5 March 2008 until the most recent grant.
24. It seems to me that anybody knowing the full circumstances of the claimant's history was entirely justified, until the 2009 Tribunal decision, in treating him as a person who had not shown that he had ever had indefinite leave to remain; was entirely justified in treating him as a person who should be considered for deportation in the light of his criminal history; and was entirely justified in concluding that a deportation order would of itself invalidate any existing leave.

"Lost Files"

25. Next, the claimant claims to be assisted by an argument that the Secretary of State had lost files relating to his earlier history. To an extent, this argument interacts with the last. If the claimant had not applied for or been granted indefinite leave to remain, there might well be no file to lose: records of his presence as a student in the early 1970s might not have been retained unless he was known to be still in the United Kingdom. The claimant says that he ought not to be in the position of having to prove such matters as a grant of leave to him, because the Secretary of State should have records of it. That may be so, but save for the alleged grant of indefinite leave to remain, it does not appear that the claimant has been able to identify any matter contained in a file, the loss of which adversely affects him. There is no doubt that his history and family and personal circumstances have been available to decision-makers. Indeed, so far as his family circumstances are concerned, they are mentioned in reports prepared during his imprisonment for his most recent offence. It cannot properly be suggested that the material available from those reports was not at least as good as any material in an immigration file could have been.

Long Residence and Other Assessments

26. The claimant also seeks to challenge the decision to detain him on the basis that the deportation decisions fail to take into account all relevant matters, including his long residence. But, as Mr Staker points out, that is in essence a challenge to the deportation decisions. Those decisions had been made under colour of appropriate authority, and a person considering detention was entitled to act on them. The first appeal, in which the claimant had the opportunity of bringing all his personal circumstances before the Tribunal, failed. The second appeal succeeded, on the basis of the material by then available to the Tribunal, including a document not previously produced, and much longer evidence of the claimant's post-conviction life style. On reconsideration the Tribunal remarked that the decision was finally balanced, and, as I have noted, it was based partly on an error in the claimant's favour. There is simply no basis for saying that, at any time before the outcome of the Tribunal process in 2009, a person considering whether the claimant should be detained, should do other than act on the fact that deportation decisions had been made in his case.

Hardial Singh

27. Was there some point at which the Secretary of State was not entitled to the view that the claimant could be removed within a reasonable time? As I have indicated, that is a matter that has to be determined on the basis of what was known at the time in question. I entirely reject the proposition implicit in paragraphs 28 and 50 of the claimant's skeleton argument that it was at any stage necessary to consider "how long it would be reasonable to maintain detention". The only question that had to be asked at any particular time was whether at that time, any period of further detention would contravene the Hardial Singh principles. In particular it was not necessary for anybody to decide in July 2007 what would be a reasonable total period of detention.
28. In order to discover the answer to the Hardial Singh question, it is necessary to look again at the chronology. There are several parallel histories.
29. First, the claimant was challenging the defendant's decisions for considerable parts of the period of his immigration detention. At the times when he had a statutory appeal (including the possibility of an appeal beyond the Tribunal), and when he was running an appeal, he could not be removed because of the provisions of s.78 of the 2002 Act. Those periods were 4 July – 5 November 2007 and 10 November 2008 – 1 August 2009. The final appeal was successful; but as I have said I do not consider that that success should be regarded as predictable. The grounds of challenge raised in the appeals should not, therefore, be regarded as matters that ought to have caused the Secretary of State to appreciate that removing the claimant was not going to be possible: nor do the appeals assist the claimant to show that his removal within a reasonable time, that is, after the appeals ceased to be pending, had become impossible.
30. Similar considerations apply to the period from 18 September – 10 November 2008. The claimant could not be removed until the new submissions had had a response: paragraph 353A of the Immigration Rules. Again, it does not seem to me that the delay, imposed by the claimant's decision to make representations (and indeed to delay until 18 September 2008 before making them) helps him to show that it had become impossible to remove him within a reasonable time.
31. There was, it is true, a period from 5 November 2007 to 18 September 2008 that is not covered by the above observations. But for the great majority of that period there was a deportation order in force. It was in due course revoked on the basis of HH (Iraq), but it had not been challenged on that basis, and it remained effective until revoked. If the fault had been recognised earlier, that would have made no difference: it was a failure to comply with a published policy that the Secretary of State was entitled to revoke at any time, as in fact she did. Moreover, this period coincides to a large extent with that identified in R (Murad) v SSHD [2012] EWHC 1112 (Admin) at [6]:

"There was a marked, though relatively short lived, improvement in security in Central and Southern Iraq in the second half of 2007, which continued into early 2008".

32. In fact it appears that nobody was removed during that period; but it cannot be said to be a period during which, at that time, removals were clearly impossible.
33. The second history relates to the claimant's willingness or unwillingness to return to Iraq.
34. In June 2007 there is a detention minute reading as follows:

"Have spoken to […], she has advised that they were only removing people to Iraq voluntarily. We will not be able to remove him to Iraq under enforced removal pilot if he does not wish to return"

35. But that is not any evidence that the claimant would not leave voluntarily when the time came. After all, it immediately preceded a decision against which he appealed, and what his position would be after the expiry of the appellate process would at that stage have been pure speculation. The matter had some prominence at the hearing, because Mr Staker submitted that even if (contrary to Mr Staker's principal submission) Mr Nathan were able to establish that there was a time when it could be seen that the claimant could not be removed to Iraq against his will within a reasonable time, voluntary removals were nearly always possible: and the claimant had not ruled out the possibility of his voluntary removal with or without financial assistance. Mr Nathan's response was that it had been clear from a very early stage that the claimant would not leave voluntarily. He referred not only to the June 2007 Minute which I have already mentioned, but also to the "Progress Report to Detainees", dated 4 November 2008, which records that "on 05 December 2007, you were offered removal under the facilitated removal scheme which you declined". It followed, he submitted, that from that time onwards the claimant should have been regarded as a person who would never consent to his removal; and the prospects of his removal should therefore have been considered only on the basis of his forcible removal.
36. I do not accept that. In December 2007 he was challenging removal; by November 2008 the deportation order had just been revoked. There was no extant process for removing him. His comments each stage cannot readily be transferred. Anyway, people change their minds in response to a changing situation. As Mr Nathan pointed out, in December 2008 the claimant complied fully with requirements for his documentation. It would be wrong to count this directly against him but it does not look like the act of a person firmly resolved to resist removal. In my judgement the defendant was at all relevant times entitled to take the view that the claimant might cooperate in the removal process in due course.
37. The third history relates to the general possibility of removals to Baghdad of Iraqis willing or unwilling to go there. Mr Nathan's contention is that those detaining the claimant should have realised that his removal to Iraq within a reasonable time was impossible, because no such removals were taking place.
38. That, however, is a judgement that is pressed now, with the benefit of hindsight. In order to succeed, Mr Nathan needs to show that the history is that it was, or should have been, appreciated at the time, that removals would not shortly commence or recommence. I am unable to see any proper basis upon which that can be said in the present case.
39. It is true that in Murad and MI and AO (Iraq) v SSHD [2010] EWHC 764 (Admin) there are references to the lack of evidence showing what view realistically the Secretary of State held in 2008 about the prospects of removals. But that is a long way from showing that at that time the Secretary of State realised or ought to have realised the detention of Iraqis was in general illegal because there was no prospect of their removal within a reasonable time.
40. As Mr Staker has pointed out, for the whole of the period of the claimant's detention there are other decisions of this court rejecting arguments that individual claimants' detention was unlawful for that reason. The cases in fact span the whole period of six and half years from March 2005 to September 2011, as follows:

(1) 25 March 2005 to 30 November: R (Bashir) v SSHD [2007] EWHC 3017 (Admin)

(2) 31 July 2006 to 7 September 2007 (and continuing): Claimant 1 in R (MMH) v SSHD [2007] EWHC 2134 (Admin)

(3) 30 October 2006 to 7 September 2007 (and continuing) Claimant 2 in MMH

(4) 6 December 2006 to 8 January 2008: Claimant 2 in Ibrahim v SSHD [2010] EWHC 764 (Admin)

(5) 3 August 2007 to 1 July 2008: Claimant 1 in Ibrahim

(6) 11 November 2007 to 8 January 2009: Murad

(7) 18 May 2008 to 19 February 2010: R (A) v SSHD [2010] EWHC 625 (Admin)

(8) May 2008 to September 2011: R (Mahmoud) v SSHD [2012] EWHC 2201 (Admin).

41. These decisions demonstrate that even with the benefit of now knowing how the situation in Iraq developed over those years, it has not been possible to show that the prospect of removal there was so remote that detention for that purpose was unlawful. They are not authority on their facts: but on their approach to the evidence they are authority, and the evidence on these large issues is essentially the same in each case, whether adduced directly or derived from the judgements. I have been shown nothing in this case that justifies a different approach, or a departure from the line indicated by those cases.
42. The position is therefore as follows. The claimant was detained from 4 July 2007 to 14 August 2009. For most of that period he was engaged in litigation, which during that time had no obvious prospects of success although it did in the end succeed. He might have decided, if his appeal had not succeeded, to accept voluntary removal. He has not shown that during that time there was a period when it had become clear that removals to Iraq within a reasonable time were impossible.
43. The claimant has a considerable criminal record and there was every reason to suppose that he would in due course be removed; at the time of his detention his evidenced rehabilitation had not reached the point that excluded the risk of further offences as a reason for his continued detention; and although he has not shown that he had a settled intention to resist removal, his maintenance of appeals entitled the Secretary of State to treat the possibility that he would escape removal by absconding as a factor in the matrix.
44. Putting all this together it is clear that there was no breach of the third Hardial Singh principle. The Secretary of State was entitled to maintain the detention of the claimant for the whole of the period that he was detained; and that means that he is a person who would have been detained for that period even without the unlawful foreign prisoners policy and even if all the detention reviews had been properly undertaken.
45. Further, and in order to complete the picture, I should say that the length of detention in this case is not of itself sufficient to show a breach of the second Hardial Singh principle.
46. There are two final points I need to deal with. The first is the claimant's claim that his immigration detention was unlawful from the outset. That claim is, in my judgement, completely hopeless. At the outset of the claimant's immigration detention he had an outstanding asylum appeal, but there was no good reason to suppose that it would be successful, and the Tribunal's judgement on it shows that it was based on fabricated evidence. There was no reason to suppose that the resolution of the appeal would be unduly delayed, and it was not. Nor, at that stage, was there any reason to suppose that the claimant would not comply with the law and return to Iraq, with or without financial assistance, if required to do so. At the commencement of the immigration detention a suggestion that it was unlawful would have been summarily rejected and properly so.
47. The other remaining issue is the claimant's claim that his detention somehow becomes illegal if he can point to defects in the reasoning in individual detention reviews. But, first, this claim is not a reasons challenge to any particular review; and, secondly, there is no requirement of reviews to mention every point and every consideration so as to be immune from the claimant's subsequent challenge. The reasons were sufficient for their purpose; and their sufficiency is if anything underlined by the claimant's failure to show even now that the conclusions they reached were unlawful.
48. For all these reasons the claimant has failed to make his case substantively. He is entitled to nominal damages for his detention during the operation of the unlawful policy, and (following Mr Staker's concession) for the three months when there were no reviews. He is not entitled to substantial damages or to a declaration that his detention was otherwise unlawful.