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
		28 February 2013

Robin Purchas QC :

Introduction

1. The Claimant applies for judicial review of his detention pending removal to India. The principal issue is whether his continued detention has become unlawful as being for an unreasonable period in breach of the Hardial Singh^[1] principles. If I conclude that his detention is unlawful, I am also asked to consider when it became unlawful. There is a subsidiary issue whether the Defendant acted unlawfully in failing to apply for emergency travel documents ("ETD") during the period March to July 2011.

The Facts

2. The Claimant claims to have been born in India in 1984 and entered the United Kingdom illegally in 2007. He then committed a series of offences resulting in cautions or convictions, mainly concerned with dishonesty and linked to his drug habit. He came to the attention of UKBA and was granted temporary release on the 21 January 2010 but failed to report. Following his arrest for shop lifting in March 2010, he was interviewed by UKBA during which he explained that his parents had died when he was young and he was brought up by his uncle and aunt, that he had left India at the age of 7 and had resided in Hungary and France before coming to the United Kingdom. He said that he wanted to return to India. Fingerprint checks were carried out but did not provide a match.
3. The Claimant's offending continued and in September 2010 he was given a suspended sentence of 84 days and made subject to a 12 month community order and drug rehabilitation order. He breached that order and was sentenced to the custodial term on the 26 October 2010.
4. On the 20 December 2010 he pleaded guilty to an offence of robbery and was sentenced to 15 months imprisonment. In sentencing, the Judge remarked

"This is a serious offence, aggravated by the fact that there were two of you against one of her; that it was committed in the hours of darkness and that you used violence and it is such a serious offence that only a custodial sentence can be justified ... You are a man who had eight previous convictions for 16 offences, 12 of which are theft related, all of which are dated in 2010 and clearly show a life spiralling into disorder."

5. On the 28 March 2011 there was an internal request within UKBA for ETD to be obtained in respect of the Claimant. A deportation order was served on the Claimant on the 11 April 2011. On the 18 May 2011 detention pending deportation was ordered, with reasons set out in a letter of that date, which included

"To effect removal from the United Kingdom, your removal from the United Kingdom is likely to be within a reasonable timescale, you are likely to abscond if given temporary admission or release, there is insufficient reliable information to decide whether to grant you temporary admission or release, you have previously failed to comply with conditions of your temporary release or bail, your release carries a high risk of public harm and there is a risk of further re-offending."

The Claimant's detention pending deportation formally commenced on the 20 May 2011.

6. An ETD interview was arranged on the 2 June 2011 but was deferred. On the 20 July the Claimant refused to attend the re-arranged interview, which finally took place on the 26 July. Application was then made for a pre-verification check by the Foreign Office liaison officer in New Delhi but the papers were returned because the village where the Claimant said he was born could not be identified. On the 23 August 2011 the Claimant explained that the village was Katra in the state of Jammu. The second pre-verification check was approved. On 23 September 2011 the application for ETD was made to the Indian High Commission.
7. There is an entry on the Defendant's file dated 20 October 2011 which notes:

"On speaking with wing staff, they stated this person is a model prisoner, very private, certainly has no current drug issues, he is not on any prescribed medication, does not hang around with any known prisoners who are known to use."

8. UKBA continued to monitor the position but the Country Returns Operations and Strategy Team ("CROS") advised that there was no point in contacting the Indian authorities until the average time for verification had passed, which was indicated as 288 days for Jammu and Kashmir. On 30^th January 2012 the Claimant confirmed that he wished to return to India but did not want to apply for the facilitated return scheme. In April 2012 the Claimant explained that he had no relatives in India who might be able to aid the documentation process. There is a note on UKBA's file dated 12^th April 2012:

"(The Claimant) has been willing to go home for the last 11 months and has provided the UKBA (with) as many details as he has … The resident is still detained and I personally cannot see how this case has progressed much since last year. Notes … also highlight the fact we were expecting an ETD agreement months ago but seven months down the line we do not seem to be any closer to our goal."

9. Bail was refused on the 13 June 2012 for the reason that there were substantial grounds for believing that if granted bail the Claimant would abscond. The reasons noted the failure to surrender to custody on earlier occasions and included that

"Whilst his previous offending and failures to surrender might well have been related to his drug abuse, whilst the applicant now appears to be drug free whilst in detention, his history is nevertheless a factor which militates against his reliability. … He has no sureties. …Whilst the Applicant has now been in detention for a little over a year, which is a lengthy period, the Respondent's position is that progress is now being made with regard to obtaining an emergency travel document, this issue now being before the Indian authorities in the particular State from which the Applicant originates. The Respondent indicates the situation is being monitored weekly. The Applicant would appear to have left India as a child and to have no extant ties to India which I find to be a factor of relevance in assessing the credibility of his professed willingness to return to India. He has demonstrated an ability to live in and to travel around various countries in Europe, thereby demonstrating a significant degree of resourcefulness. In all the circumstances and even bearing in mind the length of the Applicant's detention to date, I consider there is a significant risk of absconding at the present time, which risk is not outweighed at this point in time by the length of his immigration detention."

10. The average period for state verification of 288 days expired on the 8 July 2012. On the 10 July 2012 CROS confirmed that the case remained on the priority list awaiting an update from the liaison officer in India to chase the state for a verification outcome. On the 1^st August 2012 the Indian authorities agreed to a face to face interview with the Claimant, which took place on the 6 September 2012.
11. On 3^rd October 2012 the Claimant finally signed the disclaimer for the facilitated return scheme, which he had previously refused. On the 5 November 2012 the claim for judicial review was issued. On the 19 November 2012 the Indian High Commission confirmed that the case could not be agreed with the information provided during the face to face interview and that it had been referred to the state authorities for verification checks. A further attempt was made to get supporting evidence from the Claimant, who responded on the 25 November 2012 that he could not provide any documentary evidence, as his parents were deceased and he had lost contact with his family members in India.
12. On the 11 December 2012, a second application for bail was refused because of his failure to comply with bail conditions, that he was likely to commit an offence unless retained in detention and that there were substantial grounds for believing that, if granted bail, he would abscond. The reasons given referred to his immigration history and criminal record, together with his addictive personality. The judge concluded that there was a very substantial risk that he would commit further offences if released and a very serious risk that he would abscond if granted bail. He continued:

"Whilst it is clear the Appellant has been detained for a long time, it appears that the Respondent has been doing everything possible to secure emergency travel documentation for the Appellant and it does appear that there is a possibility that that process will come to a conclusion in the reasonably imminent future. Having regard to the risk of the public and the risk of the Appellant not answering to his bail, having regard to the fact the Appellant is the subject of a deportation order, I consider that his continued detention is reasonable and proportionate, having regard to the public interest and the removal of foreign criminals."

13. In her witness statement dated 19 December 2012 Rachna Chaturvedi, who was the liaison officer at New Delhi, explains that she sent a list of outstanding cases to the Jammu and Kashmir State Authorities monthly and had conversations with them on a case by case basis. She explained that:

"On the 19 December 2012 I spoke with the Jammu and Kashmir authorities who advised me that the case of (the Claimant) has not been verified as an Indian citizen on police intelligence checks, however a police report from door to door nationality verification inquiries is still awaited and is expected to take 5 to 6 working days."

14. In her second witness statement dated the 3 January 2013 at paragraph 4 Linda Pavlou, who is a higher executive officer with the UKBA, refers to a meeting at the Indian High Commission on the 20 December 2012 to discuss outstanding priority cases, including that of the Claimant, and states:

"The Indian High Commission confirmed that they have been unable to obtain positive verification from the nodal state officer of (the Claimant's) nationality and identity. The High Commission confirmed that the information provided in the application form and during the interview was insufficient."

15. On the 11 January 2013 a letter was sent to the Indian High Commission requesting an urgent update on the Claimant's case and followed up on the 25 January 2013. In the most recent monthly detention review dated 25^th January 2013 the authorising senior officer records:

"(The Claimant's) presumption to release has been considered in line with Chapter 55 of the EIG. The number of his offences has been taken into account along with his failure to comply with reporting instructions. His prolonged detention is self-induced as he has not produced sufficient information to support his return to India. As there is a reasonable likelihood of him reoffending and absconding, this poses an unacceptable risk of harm to the public if released. The case owner must chase CROS for an update from the IHC in terms of verifying his identity. Progress must be made within the next 28 days in order to obtain an ETD or consideration should be given whether he can be removed within a reasonable timescale."

16. On the 1^st February 2013 bail was again refused because of the failure to comply with bail conditions, that the Claimant was likely to commit an offence unless retained in detention and there were substantial grounds for believing that the Claimant would abscond. The reasons refer to the poor immigration history and the serious risk of re-offending and absconding, although the drug addiction may have been addressed. It concluded:

"The problem has been the delay in getting an ETD from the Indian High Commission. But the Respondent has been doing her best to get the ETD, not helped by the lack of cooperation. He now says he wants to go home, so he has been cooperating now. The answer to this detention is further and renewed and more effective measures by Home Office to get the TD. If detention goes on much longer, the High Court may find such detention to be unlawful. If there were sound sureties here, bail may have been granted."

17. The Defendant has produced statistics of average performance figures for verification, including in the states of Jammu and Kashmir, showing an average of 105 days for two completed verifications and an average of 1,566 days for three ETDs to be agreed. However that is qualified by Ms Pavlou in her third witness statement dated 14 February 2013 where she indicates that the 1,566 days to obtain an ETD depends on each individual case and in particular where an individual has since absconded, UKBA will not request the ETD agreement from the High Commission until that person has come to light and can be removed. This could well be after 2 to 3 years. Consequently the figure is not necessarily indicative of the administration time taken by the Indian High Commission to agree the ETD. UKBA has an undertaking from the High Commission to agree detained cases as soon as possible (on average within two weeks).
18. The Claimant submitted a psychiatric report from Dr Jennifer Drife dated 12 January 2013. In her report Dr Drife summarised her conclusions at paragraph 1.2 that there was no indication that the Claimant was currently using illicit drugs and that

"on the basis of my assessment and taking into account available statistics regarding the long term prognosis of those treated for drug addiction, I grade (the Claimant's) risk of relapse into illicit drug use if released to the community as medium. I am of the opinion that if he continues to distance himself from previous drug using associates, his risk will be reduced, particularly so if he can find himself both a supportive peer group who abstain from illicit drugs and meaningful activities to structure his time.

1.3 From (the Claimant's) account, and the available documentation, his previous offending appears to have been driven by his need to fund his drug use. The risk of future re-offending is therefore linked to his risk of relapse to drug use. Regarding his risk of absconding in the community, I concur with the previous assessments that this risk is significant at present. It is notable that he currently lacks accommodation and positive relationships, as well as finance and opportunities for legal employment. If these factors could be addressed it is my opinion that his risk of re-offending and of absconding would be significantly decreased."

19. In section 14, as part of her opinion and recommendations, she set out the grounds for those conclusions more fully, including at paragraph 14.5-14.6:

"14.5 Subsequent to my assessment I was informed by his solicitor that if he is returned to the community he will be provided with NASS accommodation and support. It is my view that this will aid to decreasing his risk of absconding but, particularly given his previous transient lifestyle, not eliminate that risk entirely.

14.6 It is not possible to state definitively whether or not (the Claimant) will offend or abscond if released in the future, as he, in common with the rest of the population, has some ability to determine his own future actions. For individuals, the most useful function of risk assessment tools such as OASys is to determine items that are amenable to future change. In (the Claimant's) case, aside from the question of his drug use, it is notable that he currently lacks positive relationships, and opportunities for legal employment. The fact that he will be provided with NASS support for accommodation and basic finance, is likely, however, to have a positive impact upon his risk of reoffending."

20. At the hearing the Defendant confirmed that support and accommodation under section 4 of the Immigration and Asylum Act 1999 would in principle be available for the Claimant should he be released from detention.

The legal framework

21. The power to detain a person who is subject to a deportation order pending their removal from the United Kingdom is provided under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 ("the 1971 Act"). In Hardial Singh 1984 1 WLR 704 Woolf J, as he then was, decided that, while the power of detention was not subject to any express limitation of time, it was subject to principles as to reasonableness. Those were summarised by Dyson LJ, as he then was, R (I) v SSHD [2002] EWCA Civ 888 at paragraph 46 as follows:

"(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 that 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."

22. Dyson L.J continued at paragraphs 47 and 48:

"47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event principle (iii) applies. Once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. In my view they include at least: 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."

23. Those principles were further considered by the Supreme Court in R (Lumba) v. SSHD [2011] 2 WLR 671, at paragraph 44 Lord Dyson confirmed that the burden of justifying detention lay on the Secretary of State. He continued at paragraph 103 in the application of the Hardial Singh principles:

"The convenient starting point is to determine whether, and if so, when, there is a realistic prospect that deportation will take place. As I said at paragraph 47 of my judgment in I's case, there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to the determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful."

24. At paragraph 107 Lord Dyson considered the risk of re-offending:

"I have some difficulty in understanding why the risk of re-offending is a relevant factor in a case where there is a risk of absconding, but not otherwise. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v. SSHD [2007] EWCA Civ 804. Toulson LJ said at paragraph 55:

'A risk of offending if a person is not detained is an additional relevant factor, the strength of which will depend on the magnitude of the risk, for which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr. Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and his continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of the propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.'

Paragraph 78 of Keene LJ's judgment is to similar effect.

...

108. I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think the Court of Appeal was right in A's case to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown L.J said in I's case at paragraph 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is 'an obviously relevant circumstance'.

109. But the risk of reoffending is a relevant factor even if the appellants are right in saying it is relevant only when there is also a risk of absconding. As Lord Rodger of Earlsferry JSC pointed out in argument, if a person reoffends there is a risk that he will abscond so as to evade arrest or if he is arrested, that he will be prosecuted and receive a custodial sentence. Either way, his reoffending will impede his deportation.

110. The risk of reoffending is, therefore, a relevant factor."

25. Lord Dyson concluded at paragraph 121:

"The risk of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place."

26. I would also refer to the judgment of Richards LJ in R (oao MH) v SSHD [2010] EWCA Civ 112 at paragraph 65:

"I do not read the judgment of Mitting J in R (A) v SSHD as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which or period within which removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. In my view Mitting J was not purporting to do that but was simply asking himself the questions "By when?" and "On what basis?" for the purposes of his own consideration of the case before him. Of course if a finite time can be identified, it is likely to have an important effect on the balancing exercise: the soundly based expectation that removal can be effected within, say, 2 weeks, will weigh heavily in favour of continued detention pending such removal, whereas an expectation that the removal would not occur for, say, a further 2 years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected, will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors. Thus in A (Somalia) itself there was "some prospect of the Home Secretary being able to carry out enforced removal although there was no way of predicting with confidence when this might be" (per Toulson LJ at paragraph 58); that was held to be sufficient prospect to justify detention for a period of some 4 years when regard has been had to other relevant factors, including in particular, the high risk of absconding and of serious reoffending if they were released.

66. Sale J's committed no error by asking himself first whether there was "some prospect" of removal: he referred in that connection to R (Khadir) v SHHD, where the focus was on the existence rather than the exercise of the power of detention, but the same language is to be found, as I have said, in A (Somalia). "Some" prospect in this context plainly means a realistic prospect, and I do not read Sale J's judgment proceeding on any other basis. Of course, A (Somalia) shows that the court needs to go on to consider the degree of certainty or uncertainty affecting the prospect of removal and to ask itself whether the prospect is sufficient to warrant detention in all circumstances of the case;…"

27. Richards LJ further concluded at paragraph 68(5):

"The judge gave proper weight to the very long period of time during which the Claimant was subject to immigration detention and rightly treated it as a factor of considerable and increasing importance as the situation dragged on. As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention. The judge evidently had the point in mind when he observed that especially in the latter stages, from late 2006, "The Secretary of State should have been giving particularly anxious consideration to the question whether it remained viable to suppose that there was a realistic possibility of removal to Somaliland, such as to justify the detention of the Claimant. ..."

28. In summary, in the context of the present case, where it is not suggested that the Secretary of State did not have power to detain the Claimant in the first place, relevant considerations include the following:

a) the Secretary of State may only detain the Claimant for a period that is reasonable in all the circumstances;

b) the burden of justifying that that detention remains reasonable is on the Secretary of State;

c) the question is to be determined at the date of judgment in the light of all the circumstances;

d) a primary consideration will be the period for which the person has been detained and would be likely to be detained in the future to effect deportation; the length of that total period will be likely to affect the judgement as to whether the prospect of effecting deportation and the degree of certainty or uncertainty is sufficient to justify continued detention when account is taken of all the relevant factors;

e) that will particularly depend on the nature of the obstacle which prevents the Secretary of State effecting deportation and how quickly or easily it can be resolved and with what certainty;

f) the diligence, speed and effectiveness of the steps that have been and are being taken by the Secretary of State to overcome the obstacle;

g) so far as relevant, the conditions in which the detained person is kept and the effect of that detention on him and if relevant his family;

h) the extent to which the period of detention is due to the conduct, active or passive, of the detained person; and

i) the risk that if he is released from detention he will abscond and that he will then commit further criminal offences together with the consequent risk of harm to the public good.

29. While all of those factors will fall to be judged by the Court in considering the continuing lawfulness of detention, at the end of the day it is a matter of balance of all those factors against the fundamental question whether the continuing detention is in all the circumstances reasonable and as such lawful so as to effect deportation and thereby protect the public good.
30. It is also convenient at this point to refer to chapter 55 of the Enforcement Instructions and Guidance from the Secretary of State, which includes in respect of risk of harm at paragraph 55.3.2.6:

"Risk of harm to the public will be assessed by NOMS unless there is no offender assessment system (OASYS) or pre-sentence report available. There will be no licence and OASYS report where the sentence is less than 12 months. NOMS will only be able to carry out a meaningful risk assessment in these cases where a pre-sentence report exists (details of which can be obtained from the prison) or where the subject has a previous conviction resulting in a community order. . ..

55.3.2.8 Where NOMS are unable to produce a risk assessment and the offender manager advises that this is the case, case owners will need to make a judgment on the risk of harm based on the information available to them. Factors relevant to this will be the nature of the original offence, any other offences committed, record of behaviour in prison and/or IRC and general record of compliance. A PNC check should always be made. Where there is a conviction for an offence on the list at 55.3.2.1 above, the nature of the offence is such that the person presents a high risk on the table below. Such high risk offences should be given particularly substantial weight when assessing reasonableness to detain. Those with a long record of persistent offending are likely to be rated in the high or medium risk, those of a low level one off conviction with a good record of behaviour otherwise are likely to be low risk."

31. The CROS Country Reference Guide sets out the procedure for obtaining ETD from the Indian authorities including verification and otherwise the procedure that was adopted in the present case.

Submissions

32. On behalf of the Claimant Mr Graham Denholm submits that on the evidence and in the circumstances there was in truth no realistic prospect of removal in a reasonable period because of the difficulty in obtaining the ETD from the Indian authorities. He accepts, that, while the initial request could have been made earlier, that is overall not something for which the Defendant is directly responsible. But it is a difficulty which can now be said to be effectively insurmountable or as near to that as makes no difference. In any event, the overall period that has passed and would be likely to have to pass before the ETD are agreed and deportation effected is such that the Claimant's continued detention for that purpose is wholly unreasonable.
33. In that respect he submits that it is totally uncertain whether and when, if at all, the ETD can be provided. That concern is reinforced by the time that as a matter of experience and on the reported statistics it evidently takes to verify cases in the Indian states of Jammu and Kashmir and in any event the Claimant has already been detained well beyond the higher average figure of 288 days.
34. On the 19 December 2012 the liaison officer had been told by the state authorities that the police report on door to door verification was still awaited and was expected to take 5 to 6 working days. In fact there has been no report or other information as to whether that investigation has been carried out or what its results may have been. It is to be borne in mind that the Claimant left India when he was seven years old and has no family or other contacts in his home village. That was now over 21 years ago. In the circumstances there is no reality at all in expecting any positive identification from those still living in the village at this stage of a young boy who left the village that time ago. Overall the case for any realistic expectation of deportation being effected in a reasonable or any time is weak in the extreme. The period of what is now nearly some 1 year and 9 months is disproportionate and accordingly unreasonable. In particular the onus remains on the Defendant to demonstrate that it is reasonable, having regard to the prospect of deportation being effected and otherwise and there is simply no evidence to determine what, if any, outcome is likely from the continuing inquiries, such as they may be, in the Indian state.
35. While that situation would in itself provide a compelling case in favour of immediate release, the other factors in the case would either support that conclusion or not militate against it. That includes the following:

a) There is no evidence to support the assertion that the Claimant has deliberately misled or frustrated the verification process. Throughout he has made clear that he had no documents and no other information as to his origins in India. His evidence has been consistent, that he left India at the age of seven and he gave what information he had to identify his home village in the state of Jammu. That he does not have any further information or document is a fact but not one for which he is to be the subject of censure or discrimination.

b) His earlier absconding was clearly related to his offending, which in turn was directly connected with feeding his drug habit. The unequivocal evidence is that he has now rid himself of that drug habit. Dr. Drife confirms that the risk of future reoffending which would be linked to his relapse to drug use can be graded as medium and that with support and accommodation the risk of absconding will be further decreased, if not eliminated entirely. The same considerations apply to reoffending, so that there is no proper basis for concluding that there is a high risk of reoffending in these circumstances. In both respects, it is to be borne in mind that contrary to the guidance the Defendant has failed to obtain an independent NOMS assessment of the Claimant as to the risk of absconding or reoffending.

c) Taking all the above circumstances together, it is submitted that the risk of absconding or reoffending would not and should not outweigh the unacceptable length of the detention that has occurred which is likely to continue, including the uncertainty of any positive outcome in respect of verification. The conclusion should therefore be that the Defendant has failed to demonstrate that the continuing detention is lawful.

36. Once the conclusion is reached that at this point in time the detention is unlawful, the Court should consider at what point during the detention that conclusion should have been drawn in the light of the circumstances that then prevailed. It is submitted on behalf of the Claimant that by the end of the initial three month period it would have been clear that, given the lack of any positive information from the Claimant beyond the unchallenged account of his departure from his home village at the age of seven, the prospects of obtaining positive verification through interview or state inquiries in India were at best speculative and the time required so extended that continuing detention would have been unreasonable. The fact that the Claimant was released from detention would not have prevented those inquiries continuing and he would have remained subject to the deportation order and the restrictions and requirements that that would have involved. Alternatively, the average periods reported by the Defendant of up to 288 days should be taken as the limit of what could have been seen as reasonable.
37. As to detention in the period from March to July 2011, at the latest by the 28^th March 2011 the Secretary of State was and should have been aware that the Claimant was due to be released from his period of custody pursuant to the robbery conviction and would then be subject to automatic deportation. That is reflected in the internal note of that date requesting an ETD interview to be conducted. However no application was actually made to the Indian authorities until the 4^th August 2011 and the interview of the Claimant did not occur until the 26 July 2011. The fact that detention under the Immigration Acts did not begin until 20 May 2011 does not excuse the Secretary of State from taking the necessary administrative steps to ensure that there was no delay in obtaining verification (see per Nicol J in Hussein v. SSHD [2009] EWHC 2492 (Admin) at para 52), which in the circumstances was likely to be required from the Indian authorities. The only established delay in that process which was possibly due to the Claimant was the refusal of the interview on the 20 July, causing it to be rearranged for the 26 July. In the circumstances, whatever period is concluded as being unreasonable for the purposes of continuing detention, that period would have been extended by at least 3 months as a result of the failure of the Defendant to put the necessary administrative steps in place at the outset. A declaration of unlawfulness in that respect should also be made.
38. On behalf of the Secretary of State, Miss Kerry Bretherton notes that the Claimant accepts that the Secretary of State acted lawfully in detaining the Claimant at the outside for the purposes of his deportation. There was nothing in the submissions on delay at that stage. It would have been premature actually to commence the verification procedure before the beginning of the detention period. Thereafter, the Secretary of State can be seen to have acted with appropriate expedition, with the first ETD interview scheduled for the 2 June 2011. That the interview could not finally be arranged until the 26^th July was due in part to the failure of the Claimant to attend the interview on the 20^th July and otherwise to the administrative difficulties in arranging the interview, which did not amount cumulatively or otherwise to unlawful behaviour on the part of the Defendant.
39. The overall period that has taken place so far can be seen to be consistent with the normal administrative process to verify nationality in India and in particular in the states of Jammu and Kashmir. That that is required results from the fact that there is no additional information as to nationality from the Claimant. It is a matter of comment that, while the Claimant has not directly frustrated inquiries, he has not provided information beyond the bare fact of his departure from the village at the age of seven. Even with a person of the age of seven it could reasonably be expected that there would be some memory or recollection of his life at that time which could or should have been provided to assist the process. Thus in considering the reasonableness of the period, Miss Bretherton submits that it is appropriate to take into account that this Claimant has not proactively assisted the process of verification.
40. So far as any continuing period is concerned, it is submitted that there is the clear prospect that the door to door inquiries will provide verification of nationality, if for no other reason than the state authorities are plainly committed to carrying out those further inquiries. The period involved of some 5 to 6 working days is not disproportionate and, given the urgency evidently attached to the case by the Indian High Commission as well as the Defendant, there is the real expectation that they will be completed within the near future. With local verification completion of the ETD should be achieved within two weeks or so.
41. While that is beyond the average period of 288 days, that inevitably depends on the information provided by and for the particular applicant and in this case it is unsurprising and not unreasonable that the period is exceeded, given the lack of co-operation on the part of the Claimant. Thus it is submitted that there is nothing in the period of detention and its likely period of continuance until conclusion that dictates a conclusion of unlawfulness on that account alone.
42. However there are other considerations that should be brought into the balance which strongly support the continuance of detention pending completion of the inquiries, including:

a) For the reasons set out above the Claimant is to a large extent the cause of the period of delay in the failure to provide any additional information to assist the process of verification;

b) The Secretary of State can be seen to have applied real urgency to the case, placing pressure on the Indian authorities to encourage the administrative process of verification through the state authorities;

c) Once that process is concluded, there is every prospect that in a short time the ETD will be issued, followed by deportation; on the other if the verification process including the final stage of door to door inquiries proves negative, there is every expectation that the period of detention will be brought to an end by the Secretary of State;

ii) Of paramount importance in the overall balance, there is a very serious risk of the Claimant absconding, given his past history and offending record, together with his past involvement with drugs. Notwithstanding support and accommodation provided under section 4, he is plainly a man who has become involved in drugs and with it offending; that offending has involved both repeated offences of dishonesty together with a very serious offence of robbery; thus in terms of the public good this is a man who has a proven record of dangerous criminal activity. His record of failure to respond and absconding is consistent with the long period over which he was evidently able to escape the notice of the authorities, notwithstanding the absence of any lawful travel or nationality documents.

43. Thus in this case, where there is a clear prospect of the ETD being provided and deportation effected, the reasonableness of continuing detention is strongly reinforced by the serious risk of absconding and reoffending thus frustrating the process of effective deportation. Finally in that respect it is submitted that the risk is manifest and is not one that depends upon a further assessment by NOMS. The guidance does not make that obligatory and the assessment of risk in the regular detention reviews has in any event been consistent with the guidance and OASys .

Consideration

44. In considering the question whether the Claimant's continuing detention is unlawful I remind myself that the onus is on the Defendant throughout to justify that that detention is lawful. In this case there is no suggestion that the detention was not in substance for the purposes of effecting the Claimant's removal to India once the ETD had been obtained. The essential question is whether in all the circumstances the Claimant's continuing detention for that purpose is demonstrated to be reasonable so as to constitute a lawful exercise of the power and, if not, when it ceased to be lawful.
45. The starting point is the total period of detention that is or may be required for that purpose. That is in part a matter of record in that the period of detention for removal commenced on the 20^th May 2011 and so has been for what is now nearly one year and nine months.
46. As to the assessment of the prospects for effecting deportation and the further period required in that respect, it is a fact that the Claimant is a man who claims Indian nationality but has no supporting evidence or documentation beyond his statement that he was born in India in a named village in Jammu and that he left that country as a seven year old, his parents having died and he having been cared for by relatives. In those circumstances the process of securing deportation has been in accordance with the country guidance, following a staged procedure of pre-verification check and application to the Indian High Commission, including in this case a face to face interview before local inquiries by the state authorities.
47. The supporting information shows that the process of local verification through the state authorities in Jammu and Kashmir is extended with an average time of 288 days. Moreover the indication is that, while that period may be an average, the actual time to secure local verification and ETD may be significantly longer, although I have considerable reservation as to placing reliance on the subsequent statistics produced for the reasons set out in the third witness statement of Linda Pavlou. However, in this case, based on the evidence of the liaison officer and her conversation with the state authorities on the 19^th December 2012, there is nothing to indicate that the state authorities are not genuinely engaging with the process or that the police report involving door to door verification inquiries is not reasonably expected to take place in the short term with an expected duration of five to six working days. Moreover that has followed a face to face interview with the Claimant, which, while not enabling verification in itself, has led to the continuance of the process including local inquiry by the state authorities. On the evidence of Linda Pavlou the Indian High Commission has agreed a period of two weeks for provision of ETD once verification is complete.
48. I do not consider that it is unrealistic to expect that such local inquiries may produce the additional evidence to support verification of the Claimant's own statements as to his nationality. There is in my judgment a real prospect that, albeit some 21 years later, such inquiries in a village community would be able to identify the family unit with a young boy, who left the village in 1991. If it was wholly unrealistic, it might be thought surprising that those inquiries were agreed to be carried out at all by the state authorities following the face to face interview by the High Commission.
49. I accordingly conclude that in the light of the evidence there is a realistic but not certain prospect of deportation being effected within a period that cannot be defined but would be within the short term. In any event within that period it should become clear what is the result of the local inquiries or indeed whether the state inquiries will in fact be completed within that timescale. Thus the degree of uncertainty as to the prospect of effecting deportation at this time is subject to the actual results of local inquiries within that limited period, as a result of which it should be clear whether deportation is capable of being effected within that period or not.
50. On that basis the period of detention for effecting deportation would be in the order of two years in total. While that is a considerable period, in my judgment it is not such that it would justify the conclusion that it was necessarily unreasonable and as such unlawful so that it was not relevant or appropriate to examine the other circumstances so as to assess whether taken as a whole the exercise of the power of detention for that purpose was unlawful. I accordingly turn to consider that question as set out below.
51. This is not a case where the Claimant has actively sought to mislead or frustrate the process of deportation and the verification of his nationality. The information he has given in that respect has been consistent as to his place of birth, his absence of local contacts and the circumstances in which and age at which he left India. However there is little to indicate a proactive engagement on his part positively to assist the process. It is of note that he has not been able to give any indication of others living in the community or other details surrounding his early life, which might have been expected to be remembered even with a boy of seven years old. While that is not to be held against the Claimant, the absence of information inevitably requires the more lengthy inquiries at international and local level to determine the nationality issue and in particular in connection with India. I should add that, while his apparent reluctance initially to sign the disclaimer required for the facilitated return scheme was consistent with the above, it did not in itself delay his deportation, given the absence of the required ETD.
52. In the present case initial steps were taken by UKBA to obtain ETD for the Claimant from the 28^th March 2011. In my judgment however it was reasonable to delay the actual commencement of that process until detention for the purposes of deportation formally commenced at the end of the custodial period, that is on the 20^th May 2011. Until that date was reached, it was not certain that there would in fact be a need for detention and in any event the relevant circumstances might change.
53. After the 20^th May 2011 the first interview date was on the 2^nd June 2011, albeit that as a result of various circumstances some of which remain unexplained the actual ETD interview only took place on the 26^th July 2011. In my judgment there is nothing in that respect which would support the conclusion that the continued detention of the Claimant during that period was unlawful. I reach the same conclusion in respect of the error over the identification of the Claimant's village, requiring the re-submission of the pre-verification application in September 2011.
54. In accordance with the country guidance there was no point in chasing the Indian authorities until at least the average time for verification in the relevant state had expired, that was 288 days for the states of Jammu and Kashmir. Thereafter it is plain that UKBA has kept the position under continuing review, seeking to ensure progress and facilitating that process. In particular the Defendant arranged the face to face interview of the Claimant with the Indian High Commission and thereafter pursued progress through the local liaison officer in respect of the state authorities. That has continued through January 2013 and is reflected in the detention review dated the 25^th January 2013, which looks for resolution in that respect within a period of 28 days. Thus in my judgement there is nothing on the evidence which indicates that the Defendant has failed to use diligence in or delayed pursuing verification to enable deportation to be effected. Indeed it is not suggested by the Claimant that there is anything more that could or should have been done by the Defendant since the initiation of that process in 2011.
55. As to the effect of detention, while the consequence of detention is always serious in depriving a person of his or her freedom and is something only to be imposed where fully justified pursuant to the lawful exercise of the relevant power, in this case there is no additional factor such as the effect on family or other specific considerations affecting the Claimant and there is nothing in respect of the actual conditions of detention to which the Court's attention has been drawn.
56. I accordingly turn to consider the risk of absconding and the related risk of reoffending. I have had careful regard to the conclusions of Dr Drife. Risk in this respect includes not only the chance of actual absconding and/or reoffending but also the implications for effecting deportation and otherwise the risk of harm to the public good. While the Defendant's guidance supports the use of a NOMS assessment where it is available, when it is not (as in the present case) it specifically supports an assessment in accordance with the OASys principles. It is apparent from the regular detention reviews that the Defendant has throughout applied those principles in assessing risk in this context. However, be that as it may, in my judgement this Court is well able to make its own assessment of risk on the material before it.
57. The Claimant's record of absconding including his failure to answer bail or otherwise comply with conditions on his release is highly relevant in that respect. That also has to be considered in the light of his previous immigration history as a person who has for many years lived outside immigration control in this country and elsewhere. His connection with his claimed country of origin India, which he left some 21 years ago, is unsupported by any evident documentation or ties or other indication of genuine commitment. That risk of absconding or reoffending has also to be seen against the potential consequence for effecting deportation and the harm to the public, including his criminal record with repeated offences of dishonesty, albeit over a relatively short period, and the seriousness of his last offence, involving violence in company with another on a single woman at night.
58. I accept that on the evidence the particular offending was connected with his drugs habit but he is an individual who, while presently free from drugs, has displayed an addictive personality and who, while support and accommodation would be likely to be available under Section 4, could be vulnerable in that respect. Moreover, as I have indicated, the Claimant has evidently been able to live outside immigration control for what appears to have been a substantial part of his life so far.
59. Thus for all the above reasons I conclude that the risk of the Claimant becoming involved in drugs and with that of reoffending and/or absconding is substantial and that with his absconding and/or reoffending the implications for effecting deportation would be serious both in that respect and generally harming the public good. In my judgment those matters should be afforded considerable weight in considering the reasonableness of the continued detention.
60. In the light of all the above considerations I have concluded that, while the prospect of effecting deportation is subject to uncertainty both as to outcome and timing, there remains a realistic prospect of securing deportation in the short term and that the risk of absconding and/or reoffending together with the other factors to which I have referred are such that the continued detention of the Claimant at this time is reasonable and as such lawful. I should make it clear that this is a balance that is dependent on the particular prospects for resolution of that uncertainty as to outcome and time in the near future and that, if the local inquiries prove negative or are not likely to be carried out in the short term, the balance of reasonableness would be likely to change. It also follows from my conclusions set out above that there was no unlawfulness on the part of the Defendant in detaining the Claimant in the period from March to July 2011. For all these reasons this claim is dismissed.

Note 1   1984 1 WLR 704    [Back]