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
		26 April 2013

Mr Justice COLLINS :

1. On 22 June 2001 the claimant arrived at Gatwick on a flight from The Gambia and sought to obtain entry by using a forged Gambian passport. The passport was in the name of Seedy Gaye with a date of birth of 17 November 1968. The claimant had substituted his photograph for that of Mr Gaye and the substitution was detected. It is not suggested that the passport was otherwise not genuine and the claimant has since admitted that he bought it for a substantial sum of money. He was fingerprinted. He gave his name as Mohammed Cumara (it is spelt thus in the notes made by the Immigration officer who interrogated him at the airport) and claimed 'political problems and asylum'. He was granted temporary admission while further enquiries were made.
2. On 14 October 2001 the claimant was arrested by police in Crawley for having stolen his flatmate's National Insurance card and used it to obtain work. He initially said that he was a Nigerian called Christopher Warren. When interviewed by an Immigration officer he claimed to have travelled to the UK under the name Seedy Gaye but said that his true name was Shakuna Kamara, a national of Gambia born on 9 June 1976. He was again released subject to reporting conditions. He contacted a firm of solicitors, Ratna & Co., who on 26 October 2001 wrote to the Asylum Co-ordination Unit of the Home Office in Croydon enclosing a number of documents including what was said to be his mother's passport, his birth certificate, a Sierra Leonean Registration Card and a letter apparently signed by one A.K. Fakondo, Head of Chancery in the High Commission in Banjul dated 26 January 1996 which stated as follows:-

"This is to certify that Shekuna Kamara is a Sierra Leonean currently residing in The Gambia.

Shakuna Kamara was born in Freetown in the Republic of Sierra Leone on the 9^th June 1976 by Mr Osman Kamara and Fatu Bangura.

The High Commission would highly appreciate if every assistance is rendered to Shakuna Kamara as she (sic) may stand in need."

The claimant was there saying he was a Sierra Leonean national. He claimed asylum 'because of … fear of persecution by the Sierra Leoneans and the Gambian authorities'. He appended a statement in which he said he attended the Serekunda Primary School in Freetown from 1984 until 1990 and then the Muslim school until 1995 when he worked in his family business until fleeing to The Gambia in 1998. This followed the killing of his parents. He assisted his grandmother who was politically active in The Gambia and this led to the problems which made him leave for the UK in 2001.

3. It must be obvious if the account given by the claimant in his statement was true the letter from the Head of Chancery must have been a forgery. In any event, on 19 March 2002 the claimant's asylum claim was rejected. He had not attended for interview when requested. It was not accepted that he was Sierra Leonean, but his removal there was to be directed 'as this is the country of which you claim to be a national'. It was said this was to enable him to appeal so that the matter could be sorted out on appeal. On 9 April 2002 a notice of appeal was lodged.
4. The rejection of 19 March 2002 was under reference K1098365. But on 27 March 2002 the asylum claim made at Gatwick by the claimant in the name Mohammed Camara was refused under reference number C461522, he having failed to attend for interview on 23 June 2001. Why it took 9 months to respond to this failure has not been explained. However, perhaps matters could have been sorted out on appeal but the claimant failed to attend his appeal and so his appeal was dismissed. He says he did not attend due to lack of money which is hardly a good excuse. Since he says in a statement dated 30 October 2012 that he ceased to report as required in June 2002 and moved from his address there must be strong suspicion that he realised that his asylum claim would be unlikely to succeed and he wanted to stay here illegally.
5. In October 2002 it was noted that the Mohammed Cumara who claimed asylum at Gatwick on 22 June 2001 and the Shakuna Kamara who claimed asylum on 14 October 2001 were the same person as fingerprints matched. The claimant came to light next when arrested in the West Midlands on 21 September 2003. He made a further claim to asylum under the name Mohammed Cumara. His date of birth is recorded as 17 November 1968, which was the date given on the Seedy Gaye passport. He said that he and his parents were Sierra Leonean and that his parents were both dead, his father having died in 1998 and his mother when he was 3 years old. He had, he said, attended Forabay primary school until 13. His claim was rejected on 29 October 2003 because of his failure to complete and return a Statement of Evidence form.
6. On 8 December 2003, an immigration officer recorded not only that Shakuna Kamara was the same as Mohamed Cumara, who had arrived at Gatwick and claimed asylum on 22 June 2001, but that he was the same as a Mohamed Cumara, a Gambian national, who had sought leave to enter as a visitor on 29 July 1993 but leave had been refused and he had been returned to The Gambia on 31 July 1993. He gave a date of birth of 21 November 1968. It was wrongly stated that there was a fingerprint match but, since no fingerprints were taken from the Mohamed Cumara who was refused leave to enter in 1993, that was impossible. The only match was between the claimant's given on 26 October 2001 and following his asylum claim through his then solicitors made on 26 June 2001. This error has, as will become apparent, bedevilled the defendant's actions in trying to establish whether the claimant is a Sierra Leonean or Gambian national to enable him to be removed from the UK.
7. The claimant then disappeared, remaining here and working unlawfully. He says that he bought a French passport so that he could pretend to be a citizen of the EU and so get work. In January 2009 he was arrested while working in Plymouth and on 13 March 2009 he was sentenced to 12 months imprisonment following his pleas of guilty to possession of the false passport and a false national insurance card. According to the record from the Crown Court, he was also recommended for deportation but, since he was sentenced to 12 months imprisonment, a decision to deport would have followed in any event. He completed his sentence on 10 July 2009. Since then until his release on bail on 10 December 2012 he has been in immigration custody pending his removal. Neither Sierra Leone nor The Gambia has accepted that he is a national of their countries and so the High Commissioners have refused to provide him with the necessary Emergency Travel Document (ETD). This claim asserts that his detention was unlawful, at least since January 2011 because, as will become apparent when the material facts are set out, he failed to co-operate in the attempts to obtain an ETD but he says that he has since January 2011 given accurate information and has done all he could properly do to assist in obtaining an ETD. It is his case that he is a Sierra Leonean national and that the Sierra Leonean High Commission has been wrong to refuse to accept that.
8. In April 2009 the claimant made a further asylum claim. This was in the name of Shekuna Kamara, a national of Sierra Leone born on 9 June 1976. He was interviewed on 8 August 2009 when he gave his full name Shekuna Mohammed Kamara. Both his parents had been born in Sierra Leone. His mother was Fatu Bangura whose passport was already in the defendant's possession together with the claimant's birth certificate. He said that he had left Sierra Leone and had gone to The Gambia via Guinea in September 1995. The forged Seedy Gaye passport had been paid for by his uncle (his mother's brother). He was asked about his early life in Freetown and named his school there as St Augustines. He said his father's family came from The Gambia and so, he said, he thought he would be entitled to a Gambian passport but he had never had one. When asked why he had not got a genuine Sierra Leonean or Gambian passport when he wanted to come to the UK he said he did not know but it would have been useless because he did not know anyone in the UK in order to enable him to get a visa. The Seedy Gaye passport contained a right of entry to the UK.
9. It is noted in the defendant's records relating to consideration of the asylum claim on 28 August 2009 that fingerprints checks found a 'possible match' to the 1993 Mohamed Camara and the photos appeared to be one and the same. He was further interviewed on 1 October 2009 and denied that he was the 1993 Mohamed Camara. In November 2009 his solicitors provided copies of his and his half-sisters' birth certificates to establish his Sierra Leonean nationality. On 30 November 2009 this is noted on his file:-

"Confirmation received from IFB that Shakuna Kamara is one and the same as Mohammed Camara, a Gambian national removed in 1993. However, the subject adamantly denies this and has provided his birth certificate and his claimed two sisters' birth certificates in support of his Sierra Leone nationality. He was unable to explain the coincidence that they have both used the same forged documents in the past.

It appears that Mr Kamara has deliberately attempted to conceal his true identity in order to claim asylum and as such it is considered little reliance can be placed upon him in the future. He has proved himself willing and able to obtain false documents and use them to his advantage and should he be released may do so again and use them to abscond and evade the authorities."

It is difficult to understand the final sentence of the first cited paragraph. The 1993 Camara did not use any forged document and there is no evidence that any of the birth certificates produced were forged. However, independently of this, his record of dishonesty, and use of false documents and remaining in breach of the immigration laws means that it was entirely reasonable to consider him to be a flight risk if granted bail or temporary admission. Immigration judges for good reason rejected his applications for bail. Thus if within the principles confirmed by the Supreme Court in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC245 detention was lawful there is no valid claim. He was released on bail following a hearing of this claim before Walker J on 26 November 2012 which had to be adjourned to identify what documentation had been available and provided for the most recent attempt to obtain an ETD from the Sierra Leonean High Commission in November 2012. Since by then he had been in immigration custody for over 3 years and 4 months it was felt that it was difficult if not impossible to justify any further detention.

10. On 12 April 2010 a deportation order was made and the claimant's asylum application was refused on 20 April 2010. He lodged an appeal against the refusal which was heard on 22 September 2010. The appeal was dismissed on 5 October 2010. The Home Office Presenting Officer confirmed during the hearing that "the respondent took the view and accepted the appellant is a national of Sierra Leone". The tribunal considered that the claimant totally lacked credibility and that the only aspect of his claim which could be accepted was that he was a national of Sierra Leone. In refusing leave to appeal Senior Immigration Judge Kekic observed:-

"The appellant has a long history of deception; he has shown himself to be an individual willing to repeatedly abuse the laws of this country and in the circumstances the Tribunal was fully entitled to find as it did. No credence can be given to any of the appellant's claims."

Prior to his appeal being heard and again on 1 December 2010 the claimant refused to comply with a request to hold a telephone interview with the Sierra Leone High Commission. His excuse is that he still hoped he might be able to win an appeal.

11. By February 2011 the Criminal Casework Directorate in UKBA who were responsible for detention and proposing what should be done to obtain an ETD to effect removal had persuaded themselves that the claimant was a Gambian national. This was largely because of the error in believing that there was a fingerprint match with the 1993 Camara. The other matters relied on were the similarity of name, the date of birth in the same month and year as on the Seedy Gaye passport and the suggested similarity in the photographs. None of these bear close examination and I confess to some surprise that Mr Barnes on instructions was still maintaining that it was likely that the claimant was Gambian because of this link. The copy of the passport photograph of the 1993 Mohammed Camara is very poor and it is difficult to see any real similarity with the claimant. That was the view taken by the Gambian authorities and I can, having seen it, fully understand it. I am told that the name Mohammed Camara (when spelt with a C or a K) is very common and I am certainly aware that Mohammed is a very common forename among Muslims. I do not think there is any merit in the suggested date of birth link. It is worth noting that the refusal of leave in 1993 led to a written complaint from the lady who was his sponsor. No effort has been made to speak to her to ascertain whether the claimant and her friend (who stayed with her for a day or two on temporary admission until he could be removed) were indeed the same person. Those responsible for removing the claimant have not acted in a competent fashion.
12. However, there was reason to believe that the claimant might be Gambian. He had arrived on a flight from The Gambia with a forged Gambian passport. He himself had asserted that he was Gambian, albeit also that he was Sierra Leonean. His maternal uncle was apparently Gambian and he had said that his father's family were Gambian and he might, he thought, be entitled to a Gambian passport. He lived in The Gambia for some 6 years or so. Furthermore, when he was arrested in October 2001 he was using false documentation belonging to a Mr Jammeh. Mr Jammeh made a statement to the police in which he said he had been put in touch with the claimant whom he knew as 'Pa' by a friend in the United States of America. This friend had asked him to keep some kind of contact with the claimant. This led to the claimant staying with him. Mr. Jammeh is Gambian and he said that the claimant was also from The Gambia.
13. The claimant was subjected to what is called an 'assertive nationality interview' on 15 February 2011 in which he maintained what he has stated ever since that he is Sierra Leonean and is not the 1993 Mohammed Camara. Unfortunately because of the error in believing that there was a fingerprint match that was not accepted. It was decided to send all relevant information including the 1993 material to the Gambian High Commission to try to obtain an ETD and this was done on 12 May 2011. While the fingerprint error was an important factor in this decision, in my judgment for the reasons set out in the preceding paragraph that he was Gambian was a valid view. The claimant had failed to co-operate in that he had not agreed to a telephone interview with the Sierra Leone High Commission. It was not unreasonable to believe that this failure might have been because he knew he would not be able to persuade the Sierra Leone authorities to accept that he was indeed Sierra Leonean. It follows that I do not think that the fingerprint error can be said to have caused the defendant to seek an ETD from the Gambian High Commission. There were without it sufficient grounds stemming from what the claimant had said and his dishonesty to believe he might be Gambian.
14. On 20 July 2011 the claimant spoke with an official in the Gambian High Commission over the telephone. He said he was not Gambian and was not the 1993 Mohammed Camara. As a result, the call was not surprisingly terminated. Since it was still believed, largely because of the fingerprint error, that he was indeed the 1993 Mohammed Camara, the defendant persisted in an attempt to obtain an ETD from the Gambian High Commission. As a result, there was a face to face interview on 4 April 2012. The officer who accompanied him noted that the copy photograph of the 1993 Mohammed Camara was 'such bad quality, it could not be compared. However prominent features such as forehead seemed to differ'. He advised that since the claimant was adamant that he was Sierra Leonean and would comply with the ETD process an application with supporting evidence should immediately be made to the Sierra Leone High Commission.
15. While the original application to the Gambian High Commission was reasonable, persistence until April 2012 was not. All that could be relied on was the alleged linkage. The claimant had instructed the organisation Bail for Immigration Detainees (BID) who wrote on 8 September 2011 asking the defendant to answer a number of questions, in particular to explain why the link with the 1993 Mohammed Camara was believed to exist and why there had been a change since at the appeal hearing before the Tribunal in September 2010 the HOPO had accepted the claimant was from Sierra Leone. No acknowledgement of this and several chasing letters was received until 20 December 2011 and a substantive reply was not given until 6 February 2012. Since the claimant was in custody, this sort of delay is unacceptable. The fingerprint match was relied on. By letter of 28 March 2012 BID made the point that the 1993 Mohammed Camara's fingerprints had not been taken. This should have alerted the defendant to the error but unfortunately it did not.
16. The claimant instructed solicitors who on 13 April 2012 wrote a pre-action protocol letter seeking his immediate release on the grounds that the length of time he had been detained exceeded that permitted by the Hardial Singh (R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 804) principles. A substantial reply was given by letter of 4 May 2012. In this, it was noted:-

"In support of his claim to be Shekuna Kamara a Sierra Leone national your client has submitted the following

a) Birth certificate in the name Shekuna Kamara

b) Birth certificate in the name Isatu Samkoh

c) Birth certificate in the name Zainab Samkoh

d) Sierre leone passport in the identity of Fatu Bamgura

e) Full birth certificate for Shekuna Kamara

The birth certificates have been examined and found to be authentic, however you will agree that this does not prove that your client is Shekuna Kamara a Sierra Leone national as claimed. You state that the birth certificates as above were provided to your client by his sisters living in Sierra Leone, it would assist your client's case if you would provide contact details of his sisters so that they can be asked to confirm his identity. It may also help your client if he could provide contact details of his aunt Ya Awa Saidy who he states is residing in Gambia. "

17. An interview in the Sierra Leone High Commission took place on 19 June 2012. The official who accompanied the claimant has noted what occurred. It is necessary to set out the note since it shows how apparently unsatisfactory the interview was. The note reads:-

"Mr Camara gave the name of a primary school which the Sierra Leone HC officials said did not exist (St Augustine's).

He told them he had been imprisoned in the UK for illegally working (due to not getting help when he claimed asylum).

He said he had bought a passport in Gambia with I L R.

He said he had provided Sierra Leone BC & PPT evidence for his family to UKBA

He said he was from Sierra Leone but had forgotten how to speak the language

He kept on about suing the Home Office for three years unlawful detention

The interview was concluded after about seven minutes

The officials were not prepared with the letter application pack and were distracted by telephone calls and other staff in the room

The officials spoke to me afterwards and told me they believed him to be Ghanaian or Gambian because of the way he held his tongue when he spoke

They will send a report."

18. The claimant says that he had not spoken Krio (his native language) for at least 17 years and had only spoken English and so his Krio was very poor. So far as the school is concerned, the defendant could ask the High Commission in Freetown to make inquiries to see if there is a primary school where the claimant said he attended one, whatever its present name may be.
19. Following the visit to the High Commission, the claimant was interviewed by UKBA. Despite the claimant's maintenance of his account that he was Sierra Leonean, the interviewers believed that he was Gambian. In a letter of 20 July 2012 the case officer mentioned this view based on the mistaken fingerprint link. It is surprising that this error was still maintained particularly as the claimant's solicitors had themselves pointed out that no fingerprints had been taken from the 1993 Mohammed Camara. However, the officer was entitled to take into account the Sierra Leonean rejection of his claim to be a national of Sierra Leone, albeit there were unsatisfactory elements in the interview at the High Commission. The point was also properly made that contact details of his aunt and half sisters had not been provided. Relevant details were provided by the claimant's solicitors in a letter of 7 August 2012. I have no evidence that UKBA have pursued these as clearly ought to have been done. However, there is a note that on 15 August 2012 the FCO were to deal with the matter. But there is nothing in the evidence before me to show that the FCO has done anything. It is also to be noted that on 20 July 2012 a UKBA caseworker had suggested the possibility of release on the basis that the end of the line seemed to have been reached but the official who decided on continued detention on 2 August 2012 stated that the only barrier to removal was obtaining the ETD from The Gambia. Reliance continued to be placed on the risk of absconding.
20. It seems to have been appreciated that the evidence that he was Sierra Leonean was stronger and, following the issue of these proceedings a decision was made to send further evidence to the Sierra Leonean High Commission. The hearing of this case was fixed for 26 November 2012. It had to be adjourned largely because of the failure by the defendant to give accurate disclosure of information in relation in particular to what had been put before the Sierra Leonean High Commission in June and again in November. Initially inaccurate information was contained in statements served following the order made by Walker J and this was not corrected until a statement was served from the Assistant Director of the Criminal Casework Directorate at UKBA. It is still far from clear what that further evidence consisted of and whether it included a copy of the claimant's mother's passport.
21. The Deputy Director records that there was a further interview of the claimant on 13 January 2013 but that the High Commission maintained its view that the claimant was not Sierra Leonean. Since the claimant was by then on bail, no-one from UKBA attended the interview. The claimant says the interview only lasted a few minutes and no detailed questions were asked. The official did not refer to any documents. The Deputy Director concludes his statement by saying that UKBA intended to request a meeting with a senior officer from the Sierra Leone High Commission "with the aim of identifying any additional documentary evidence that UKBA might provide to support a request that they reconsider their decision to decline issuing an ETD."
22. The power to detain can only properly be exercised so long as there is an intention to remove the individual. It must not continue to be exercised if it becomes apparent that removal within a reasonable time is unlikely to be achieved. Since loss of liberty is a serious matter for anyone, however apparently undeserving he may be because of past deception or criminality, the defendant must act with reasonable diligence and expedition.
23. The claimant has produced statements from various family members. His cousin, Mrs Awe who lives in London and who offered to act as a surety, had met him originally in Gambia in 1996 or 7 when on holiday there. While her family was Gambian, she says the claimant's father (her mother's brother) had moved to Sierra Leone. She had contacted the claimant's half sisters and had eventually got the birth certificates from them. The claimant's half sister Zainab Sankoh, who lives in Freetown, has made a statement confirming that the claimant was born and went to St Augustine's school in Freetown. This, coupled with his mother's passport, a copy of which still is apparently on a Home Office file together with a copy of the claimant's full birth certificate, seems to provide powerful evidence that the claimant is indeed Sierra Leonean. Since the defendant for good reason believes the claimant should be deported, there is a reasonable possibility that, given some sensible investigation through the FCO, an ETD may be provided.
24. In her submissions, Ms Patel sought to divide the detention into a number of discrete periods. She accepted that the claimant's failure to co-operate in an interview with the Sierra Leonean High Commission in 2010 meant that she could only assert unlawfulness after January 2011. However, I do not think that such divisions are appropriate or helpful. I have no doubt that the defendant was faced with a difficult situation and was entitled to view whatever the claimant asserted with considerable scepticism. He had given various accounts of his nationality and the fact that he had since 2001 essentially stuck to the same account did not necessarily mean it was true. Thus, particularly as Sierra Leone rejected his claim to be a Sierra Leonean national, the defendant was entitled to investigate and to pursue the possibility that he was entitled to a Gambian ETD. The error was to rely so heavily on the alleged link with the 1993 Mohammed Camara and I have no doubt, having regard to the history which I have set out in some detail, that there have as a result been unnecessary delays. Furthermore, the loss of the claimant's mother's passport and his full birth certificate has not helped. I think that the indication given by a caseworker at the end of July that the time had come to consider release should have been acted on since by then some 3 years detention had elapsed. The defendant cannot be proud of the way in which this claimant's case has been dealt with but I am satisfied that a considerable time would inevitably have elapsed even if the defendant had acted with all due diligence and, as I have said, I have no doubt (like all judges who refuse bail) that the claimant was properly regarded as a flight risk.
25. As must be obvious, lack of co-operation or obstructive behaviour can justify a longer detention as can problems created by past deception and dishonesty. In addition, as is clear from the narrative set out, the High Commissions of each country take some time to set up interviews and reach decisions. It is to be noted that the period in Hardial Singh which Woolf J regarded as bordering on unreasonable was only some 4 months, but since then courts have recognised the increased pressure of numbers on UKBA and the difficulties in obtaining ETDs so that periods of over 3 years have been upheld. All will depend on the facts of the particular case, but a period such as existed in this case requires clear justification.
26. In my view arrangements for his release should have been made in August 2012 and so I think he was kept unlawfully in custody for a period of 4 months. The effect of this decision and the order that should result I will consider after hearing any submissions from counsel.