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
		25/01/2013

Philip Mott QC :

1. This is a challenge to the lawfulness of the Claimant's detention pending deportation between 8 May 2009 and 24 May 2011. Permission to apply for judicial review was granted by Singh J on 17 November 2011 in relation to Hardial Singh grounds, but refused on Article 5 grounds. The Claimant seeks to renew his Article 5 challenge.
2. The Defendant initially asserted that the statutory provisions for automatic deportation in the Borders Act 2007 prevented any tortious claim for damages for wrongful detention. It is now conceded that this is not so, and that ground of defence is not pursued.
3. This hearing is for a declaration of wrongful detention only. If granted, the matter would be adjourned for damages to be assessed.

Factual Background

4. The Claimant was born on 8 October 1988. He is aged 24. It has now been accepted that he is a member of the Zaghawa tribe from Sudan. Because of the widespread persecution of the Zaghawa it is not possible to return him to Sudan.
5. He arrived in the UK from Sudan, according to him, on 24 November 2004. On that date he was found hidden in a lorry. He claimed asylum, which was refused on 17 January 2005 on the grounds of adverse credibility, as he had alleged implausible events in a vague and discrepant manner. He did not appeal that decision. No view was expressed about his ethnicity, and it was not put forward by him as a basis for asylum. However he was granted discretionary leave to remain as he was still a minor. That leave was to last until 7 October 2006, the day before he reached 18.
6. On 27 September 2006 he applied for further leave to remain, and was told by letter of 3 January 2007 that his application would be dealt with as part of the "legacy" scheme.
7. On 5 May 2007 he was arrested and charged with sexual activity with a female under the age of 16. He remained in custody thereafter. He was convicted after a trial on 21 February 2008, and was sentenced on 8 May 2008 to 4 years' detention in a Young Offenders' Institution.
8. It is instructive to read the sentencing remarks of the trial judge. The Claimant was one of a group of five immigrants who had lured local schoolgirls to a house for sex. Three girls were involved, two aged 13 and one 14. Sexual activity had taken place over a period of time, including unprotected intercourse. The Claimant was convicted of two offences of sexual activity with a 13 year old girl, charged as samples of a course of conduct in which he had engaged with her. He was sentenced on the basis that they were planned offences and he knew the girl's age. The judge remarked that the three girls, who had given evidence, were clearly disturbed and vulnerable, far from mature for their years, and had been targeted by the group. In addition to the substantial custodial sentence, the Claimant was recommended for deportation.
9. The fact that the Claimant had been in custody on remand prior to his trial meant that he became eligible to release from his sentence on 8 May 2009. Thereafter he was detained under Section 36 of the Borders Act 2007.
10. In May 2009 the Sudan COI Report noted that "the government was responsible for hundreds of politically and ethnically motivated disappearances, particularly of Zaghawas living in Khartoum and Omdurman".
11. The Claimant's case was first considered by a junior official at the UK Border Agency who noted, on 13 August 2009, that he was a member of "the Zaghawa tribe, a non-Arab tribe from Darfur in Sudan, who are being persecuted by the Sudanese authorities". She recommended that he be granted discretionary leave to remain for 6 months. That was swiftly rejected by a more senior official on the grounds that further investigation was required.
12. As from 2 November 2009 the Defendant's Operational Guidance stated that "All non-Arab Darfuris … are at real risk of persecution in Darfur and internal relocation elsewhere in Sudan is not currently to be relied upon. Claimants who establish that they are non-Arab Darfuris and who do not fall within the exclusion clauses will therefore qualify for asylum".
13. Arrangements were made to investigate the Claimant's humanitarian protection claim. At the end of January 2010 the Claimant completed a statement of evidence form and was interviewed.
14. On 5 February 2010 the Claimant was notified of his liability to automatic deportation and invited to put forward any asylum or human rights claim. Representations were made on his behalf on 30 March 2010.
15. A minute dated 16 March 2010 records that it was accepted he was a Sudanese national. By 23 June 2010, however, doubts were being expressed as a result of apparent discrepancies in his account. The writer said "I am not satisfied that he is Sudanese as claimed although he may be a Zaghawa from a neighbouring country".
16. On 5 July 2010 the humanitarian protection application is recorded as refused. Consideration was then given to the automatic deportation regime, and on 30 July 2010 it was decided that he should not be excluded. The formal decision came on 12 August 2010.
17. The basis for rejecting the claim that removal would breach the UK's international obligations was as follows:

i) He had referred to his father being an arable farmer rather than a cattle farmer, which the Zaghawa tribe generally were.

ii) He had located his family in an area which was not in the border region where the Zaghawa customarily lived.

iii) There were discrepancies in his account in relation to his family home being burned down, how his departure from Sudan had been financed, and how he had travelled to the UK.

iv) It was not accepted that he would be identified on return as a non-Arab Darfurian. In Khartoum he would not be at risk of serious harm.

v) His criminal conviction called for his exclusion from Humanitarian Protection and from the protection of the Refugee Convention.

vi) He had no connections with the UK which would mean that removal would breach his right to private and family life.

18. The Claimant appealed the decision immediately. In September 2010 the Zaghawa Community Association confirmed the Claimant's membership of the Zaghawa tribe. That was supported shortly afterwards by the Union of the People of Darfur in the United Kingdom and Northern Ireland.
19. A hearing was listed in the First Tier Tribunal on 29 November 2010. On that date his humanitarian protection and Refugee Convention claims were abandoned, and the appeal against that part of the decision formally dismissed, but permission was given to amend the appeal to claim relief under Article 3 of the ECHR. That was a matter which had not been formally raised with the Defendant hitherto, although it relied on the same underlying factual assertions. There was no application for bail to the FTT then or thereafter.
20. The Claimant's new solicitors then obtained the assistance of a country expert, Peter Verney, who produced a report on 4 February 2011, having spoken to the Claimant. He concluded that there was overwhelming evidence that the Claimant was a Zaghawa from Sudan.
21. The FTT hearing took place on 10 February 2011. Its decision was promulgated on 23 February 2011, and allowed the Claimant's appeal. It records the Defendant's concession that, if the Claimant were a Sudan national and a member of the Zaghawa tribe, it would be a breach of Article 3 to return him to Khartoum. The only issue was whether he could establish on the balance of probabilities that he was. The FTT was clearly impressed with Mr Verney's evidence, and treated his evidence as conclusive without addressing in any detail the areas of doubt put forward on behalf of the Defendant.
22. The Defendant sought permission to appeal, on the ground that the FTT failed properly to deal with the arguments raised, or to explain its reliance on Mr Verney's opinion. Permission was refused by the FTT on 22 March 2011. In refusing permission the FTT Judge said "Whilst it may have been wise for the Tribunal to have addressed this aspect of the evidence explicitly, I take the view that it is not reasonably arguable that the Tribunal made a material error on a point of law". The Upper Tribunal agreed when refusing permission to appeal on 17 May 2011
23. The Claimant was released from detention a week later, on 24 May 2011. Initially the Defendant claimed that the UK Border Agency could appeal to the Court of Appeal, but this was not persisted with. Arrangements had to be made with MAPPA agencies before his release because of his criminal record.

The Hardial Singh Principles

24. The Hardial Singh principles are well known. They stem from the decision of Woolf J in R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704. They have been more recently restated by Lord Dyson in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, and repeated in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. They are 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 the 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.

25. Beyond these established principles there is a wealth of authorities, from which a number of practical propositions can be drawn:

i) For the third Hardial Singh principle to be engaged, the inability to deport within a reasonable period must be 'apparent'. 'Possible' is not enough. The principle does not cover situations where the prospect of removal within a reasonable period is merely uncertain – R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, at [36].

ii) It is not necessary for the Secretary of State to be able to identify the timescale within which removal could be effected. There may be a realistic prospect of removal without it being possible to specify or predict the date by which, or the period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors – R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, at [65].

iii) There is no general limit on what is a reasonable period. In Muqtaar a period of just over 41 months was upheld on the particular facts of the case.

iv) In determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the person was pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one – Lumba, at [121].

v) The risks of absconding and re-offending if not detained 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, but they are not a trump card justifying continued detention in every case – Lumba, at [121].

vi) Where the liberty of the individual is curtailed by administrative detention, it is for the court to determine whether the length of detention is reasonable – R (A (Somalia)) v Secretary of State for the Home Department [2007] EWCA Civ 804, at [62] and [71].

vii) The assessment of the prospects of removal within a reasonable period must be made by the court objectively on the materials available to the Secretary of State at the time, not with the benefit of hindsight - R (Rashid Hussein) v Secretary of State for the Home Department [2009] EWHC 2492 (Admin).

viii) To found a claim in damages for wrongful detention it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained – R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549, at [12].

ix) Comparison with the particular outcomes in other cases is unlikely to be a useful exercise in this highly fact-sensitive area – Muqtaar, at [41].

Automatic Deportation

26. Automatic deportation is provided by section 32 of the Borders Act 2007. It applies to a person like this Claimant who is convicted in the UK of an offence and is sentenced to a period of imprisonment of at least 12 months. In those circumstances the deportation of that person is presumed to be for the public good (a basis for deportation under section 3(5)(a) of the Immigration Act 1971), and the Secretary of State must make a deportation order, subject to the exceptions in section 33 of the 2007 Act.
27. The only relevant exception under section 33 is that the Claimant's removal would breach his Convention rights or the UK's obligations under the Refugee Convention.
28. By section 36 of the 2007 Act a person who has served a period of imprisonment may be detained while the Secretary of State considers whether the exceptions apply, and thereafter until a deportation order is made. Once a deportation order is made, the person must be detained unless the Secretary of State thinks it inappropriate.
29. These provisions led Nicol J in Rashid Hussein to conclude that the Hardial Singh principles should be modified in automatic deportation cases. He thought the first principle should read "The Secretary of State must intend to deport the person unless one of the exceptions in section 33 applies and can only use the power to detain for the purpose of examining whether they do". The fourth principle should then be adapted to read "The Secretary of State should act with reasonable diligence and expedition to determine whether any of the exceptions in section 33 is applicable".

Grounds of Challenge

30. Four grounds have been put forward on behalf of the Claimant:

i) Failure to engage with the merits of the claim that removal would infringe international obligations. Mr Symes did not seek to submit that it was irrational for the Defendant to have decided against the Claimant, nor to have pursued permission to appeal against the FTT decision. His argument was that the claim was so strong that bail should have been granted at an early stage, and certainly pending the resolution of the appeal.

ii) Undue delay in addressing the claim. The Claimant had made an in-time application for further leave to remain in September 2006, and the delay in processing his application and subsequent claims was excessive.

iii) Failure to notify the Claimant of the changing basis for detention. This is an Article 5 point on which permission was refused by Singh J. The application for permission was renewed before me. On examination it is perfectly clear that it made absolutely no difference to this Claimant whether he was detained under section 36(1) or 36(2) of the Borders Act 2007. I therefore refused permission on the renewed application

iv) Unreasonable assessment of the risk of re-offending. This, like the first ground, affects the decision to keep the Claimant in detention rather than to grant him bail.

31. Save for the issue raised in the third ground above, it was not argued that Article 5 adds anything to the Hardial Singh principles. Indeed, it has been suggested that they give greater protection than that required by the Convention. Accordingly, I do not need to consider that aspect separately.
32. In relation to the first of the Hardial Singh principles, there is no dispute that the Defendant at all times intended to deport the Claimant, if that were possible and consistent with his Convention rights.
33. The main challenge centres on the second principle, whether the detention was for a period which was reasonable in all the circumstances. Specifically in this regard, the Claimant argues that the strength of his Article 3 claim, when balanced against a proper assessment of the risks of absconding and re-offending, made it unreasonable to continue his detention, and he should have been released on bail.
34. The third principle, in the light of Mr Symes' concession that it was not unreasonable for the Defendant to find against the Claimant, or to pursue an appeal against the FTT decision, can bite only on the final week of detention, after the refusal of permission to appeal to the Upper Tribunal. Prior to this, the increasing weight of evidence in the Claimant's favour is relevant to the balance of reasonableness of detention under the second principle, but did not make it 'apparent' that deportation could not be effected so as to engage the third principle.
35. The Claimant relies on the fourth principle to argue that there was unreasonable administrative delay, even if the overall length of detention was not unreasonable under the second principle.
36. Accordingly, the issues essentially resolve themselves to two. Chronologically, the first is whether there was unreasonable delay in deciding whether the exceptions in section 33 applied. The second is whether the Claimant should have been granted bail once the strength of his Article 3 claim was appreciated, even though it was not unreasonable for the Defendant to challenge that claim.
37. Finally, I must look at the last seven days of detention, once permission to appeal to the Upper Tribunal had been refused.

Delay

38. The Claimant submits that the clock starts with the application for further leave to remain in September 2006. I disagree. The whole picture changed with the arrest and conviction of the Claimant for serious sexual offences against a minor. It was not until May 2009 that the Claimant became eligible for release from his prison sentence, and then he was subject to the automatic deportation regime.
39. There are conflicting decisions as to when the Secretary of State should start the process of decision-making. As in so many aspects of this branch of the law, the answer is likely to be fact-specific. For instance, if the steps required are to obtain an Emergency Travel Document it may be unreasonable to expect the Secretary of State to set about obtaining one before the end of the custodial sentence. The date may change, either because of a successful appeal or as a result of prison disciplinary procedures. An ETD is only valid for a short period.
40. In this case, prior to May 2009 the Claimant had been refused asylum, and had not appealed that decision. He had not raised his ethnicity as a relevant factor, nor had it been flagged up as a potential problem in the Defendant's Operational Guidance. He was by then an adult, and had been serving a long custodial sentence as a result of which he was subject to the automatic deportation regime. Even if given the option of remaining in the UK, he would be released on licence and subject to the requirements of being on the Sex Offenders Register, and might very well prefer to be assisted in leaving the UK. I can see no good reason for requiring consideration of his case prior to 8 May 2009.
41. After his notional release date, the Secretary of State had a duty to act with reasonable diligence and expedition. But it would not be right to look with hindsight and judge the time taken on the basis that the only issue was the Claimant's ethnicity. In a witness statement, the Defendant's Higher Executive Officer responsible for the case in August 2009 explains that she wanted to investigate four matters: (i) the specifics of the Claimant's claim at that time to be at risk of persecution; (ii) confirmation of his Sudanese origin; (iii) whether he could find internal relocation to overcome his difficulties; and (iv) whether there were other family members remaining in Sudan.
42. In addition, there was no doubt a changing picture in Sudan. For instance, the possibility of internal relocation was not ruled out until the change in Operational Guidance on 2 November 2009. In those circumstances, and having some regard to the realities of the workload being undertaken by the Defendant's staff, it is not surprising that obtaining the statement of evidence and conducting the interview of the Claimant did not occur until the end of January 2010. The reality is that, even if this information had been obtained earlier, it would still have needed checking, and the possibility of internal relocation would have been a live one until November 2009.
43. Thereafter, it was not just a case of deciding whether to accept that the Claimant was a Zaghawa from Sudan. A reasoned decision was required on the application of the Refugee Convention, as well as an analysis of the evidence of ethnicity. The background of the automatic deportation provisions of the 2007 Act meant that it was reasonable for this evidence to be tested thoroughly. Indeed, Mr Symes accepts that the decision letter rejecting the claim to be a Sudanese Zaghawa was not irrational.
44. I remind myself that the decision on whether the delay was unreasonable is for me, and not just by way of a review on Wednesbury grounds. I also remind myself that it is not enough that, in retrospect, some part of the process is shown to have taken longer than it should have done.
45. In my judgment the initial recommendation of the junior official on 13 August 2009 was clearly wrong. Thereafter more expedition would have been ideal, but the delay was not unlawful. I note, whilst making it clear that it is by no means decisive, that the Claimant made no attempt to get bail or to start judicial review proceedings between May 2009 and August 2010.
46. Once the decision had been made, and communicated to the Claimant by letter of 12 August 2010, any further delay in resolution of the issues was caused by the appeal process. To some extent this was simply waiting for a hearing date, or a decision, but substantially in this case it was caused by the Claimant's new solicitors seeking an adjournment in order to put forward an amended case with new evidence.

Failure to grant bail

47. The starting point is the automatic deportation regime. This raised a strong presumption that the Claimant should be deported, and that detention should be used as a means of ensuring that deportation. The Defendant's policy, as set out in paragraph 55.1.2 of the Guidance, was as follows:

"Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful."

The Supreme Court in Lumba held this to be lawful (paragraph [53]).

48. This normal practice is repeated elsewhere in the Guidance. In Criminal Casework Division cases (such as the present one), paragraph 55.1.3 states that "because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale". It concludes:

"In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences."

49. The exceptional nature of release on bail is such that any decision not to detain a foreign national prisoner, or to release him on restrictions, must be agreed at Grade 7 / Assistant Director level, and authorised by the UK Border Agency's Chief Executive, or Board member deputising in her absence.
50. Against this background it is necessary to look again at the nature of the Claimant's offending. It was deliberate, targeted abuse of a young and vulnerable girl. The risk that the Claimant, in his early 20s, would commit a further sexual offence if released on a precarious basis at risk of return to Sudan had to be considered as substantial.
51. Mr Symes, for the Claimant, points out that the sentencing judge said it would be unreasonable to decide that he presented a significant risk to the public of serious harm by repeat offending. This, however, simply deals with the test of dangerousness under the Criminal Justice Act 2003, and whether an indeterminate sentence was justified. It does little to assist on the risk of further offences which would be relevant to the question of bail.
52. Mr Symes also invited me to take account of the fact that any release would be subject to standard licence provisions applicable to any prisoner at the end of his custodial term, and in addition would be subject to the requirements of being on the Sex Offenders Register. The experience of the criminal courts is that these have a very limited ability to prevent or deter re-offending. In common with the reporting and other conditions imposed on foreign nationals in the UK without the right to remain, experience shows that they have very limited ability to prevent absconding.
53. The Defendant is criticised for highlighting a risk of acquisitive crime if released. The Claimant has no history of theft or other acquisitive crime. Nevertheless, he had no home, no work, no substantial links with the UK and no means of support. He had just spent two years in custody, no doubt associating with those whose history was one of acquisitive crime. If released on bail there must have been a risk that he would offend in this way in order to provide for himself.
54. It is also argued that the strength of his claim, ultimately upheld by the FTT, made it more likely that he would keep in touch and not re-offend. To some extent there is merit in this submission. But it ignores the fact that the evidence which was ultimately successful came from the country expert, Peter Verney, in a report of 4 February 2011, less than a week before the FTT hearing. Prior to that, even though the Claimant knew that he was a Sudanese Zaghawa, he would hardly have had confidence that a Tribunal would have found in his favour.
55. Added to this, it is accepted that the Defendant was not irrational in rejecting this assertion, and therefore it must also be accepted that the possibility of bail would have had to be approached by the Defendant on the basis that the Claimant might well have been putting forward a bogus case.
56. Once the expert report had been produced, the Claimant's prospects brightened considerably. However, the FTT hearing came almost immediately, and it cannot have been unlawful to wait for the result.
57. Did the position change when it was promulgated on 22 February 2011? It is conceded that the decision to seek permission to appeal was not irrational. The FTT decision itself was sparse in its reasoning, although sufficient as the FTT and UT judges found in refusing permission to appeal. The Claimant's personal position had not changed. Any bail granted pending the Defendant's application for permission to appeal would logically have to be continued if permission to appeal were granted, and thereafter to the hearing of the appeal, and potentially to any rehearing ordered on that appeal. The fact that permission to appeal was refused at both levels is now known with hindsight, but could not be predicted at the time. I can see nothing wrong in waiting for the result of those applications, knowing that the Claimant through his new solicitors could apply for bail to the Tribunal (but did not).

The final week

58. The Upper Tribunal judge refused permission to appeal on 17 May 2011. There was effectively no further appeal, whatever the UK Border Agency might have said. The only proper conclusion was that the Claimant had to be discharged from detention. Why should that have taken a further week?
59. The Claimant had been arrested 5 May 2007 and had been in custody ever since. After four years he had no home, job or support network. He had to be subject to multi-agency public protection arrangements ('MAPPA'). Immediate release was not an option. The arrangements for release are likely to have taken 48 hours. 17 May 2011 was a Tuesday. It is not clear when the refusal of permission was communicated to the relevant person on the Defendant's staff. Even if it were that day, the earliest release date would have been Thursday 19 May.
60. In fact release took place on Tuesday 24 May 2011. I have no specific evidence as to what happened in the interim period, and it appears that someone was assuming a right to apply for permission to appeal to the Court of Appeal. I do not think it right to expect a justification hour by hour, or day by day. In my judgment a period of seven days in a case like this is not unreasonable, even if some of the time was spent on unprofitable consideration of an assumed further right of appeal.

Conclusion

61. It follows that the Claimant's case fails on all grounds.