Case No: CO/10009/2008
Neutral Citation Number: [2014] EWHC 1898 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/06/2014

Before :

MR BEN EMMERSON QC
(sitting as a Deputy Judge of the High Court)
- - - - - - - - - - - - - - - - - - - - -
Between :

	The Queen 
(On the application of Cente Sheikh Noor Mohammed)	Claimant	
	- and -		
	The Secretary of State for the Home Department	Defendant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Mohammed appeared In Person
Mr Sarabjit Singh (instructed by The Treasury Solicitor) for the Defendant

Hearing date: 14 February 2014
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Ben Emmerson QC:
	Introduction
1.	In these judicial review proceedings the Claimant challenges the legality of his detention under the Immigration Act 1971 between 23 October 2007 and 14 November 2008 (“the first period of immigration detention”) and between 11 February 2009 and 17 February 2010 (“the second period of immigration detention”).  
     	The relevant factual history
2.	The Claimant, a national of Somalia, entered the United Kingdom on 2 February 1996 and claimed asylum.  On 12 August 1996 the Defendant refused his asylum claim but granted him exceptional leave to remain (“ELR”) until 12 August 1997.  On 13 August 1997 the Defendant extended the Claimant's exceptional leave to remain until 12 August 2000. 
3.	Prior to the first period of immigration detention the Claimant was convicted of a number of serious criminal offences.  On 3 September 1999 he was convicted of wounding with intent and sentenced to four years imprisonment.  On 13 February 2002 he was released from prison.  Ten months later, on 6 November 2002 he was sentenced to four years imprisonment for robbery.  He was released from this sentence on 31 January 2005.  
4.	On 23 February 2005 the Claimant applied for indefinite leave to remain in the United Kingdom.  Then on 17 March 2006 he was sentenced to two years imprisonment for robbery.  On 13 June 2006 the Defendant served the Claimant with a decision to make a deportation order against him.  The Claimant appealed against this decision on 7 July 2006.  On 10 October 2006 the Claimant was released from prison on licence and was granted temporary admission by the Defendant.  On 30 January 2007 the Probation Service was informed that the Claimant had appeared at Feltham Magistrates Court on 26 January 2007 charged with affray.  When he met with his offender manager the following day, the Claimant failed to disclose the fact that he had been arrested and charged for a further offence.  In consequence, on 1 February 2007, his licence was revoked and he was recalled to prison.  He was returned to custody on 14 February 2007.
5.	On 5 February 2007 the Defendant issued a new decision to make a deportation order.  On 23 February 2007 the decision to make a deportation order dated 13 June 2006 was withdrawn.  On 11 February 2007 the decision of 5 February 2007 was withdrawn and the Defendant served the Claimant with a new decision to make a deportation order dated 19 March 2007.  The Claimant's application dated 24 February 2005 for indefinite leave to remain was also refused on 19 March 2007.
6.	On 23 October 2007 the Claimant was released from his custodial sentence and was thereafter detained solely under the Immigration Act 1971.  This represents the start of the first period of immigration detention which is under challenge in the present proceedings.  
7.	On 15 January 2008 a deportation order was signed against the Claimant. On 7 February 2008 removal directions were set for 13 February 2008.  On 8 February 2008 the Claimant made submissions to the Defendant seeking humanitarian protection and invited the Defendant to treat these submissions as a fresh claim under paragraph 353 of the Immigration Rules.  On 12 February 2008 the Defendant issued a decision refusing to treat the Claimant's submissions of 8 February 2008 as a fresh claim, and refusing to grant the Claimant humanitarian protection.  The Defendant also treated the Claimant's submissions of 8 February 2008 as an application to revoke the deportation order in force against him, and refused to revoke the deportation order.
8.	On 12 February 2008, following an application by the Claimant, the European Court of Human Rights issued a Rule 39 indication to the effect that the Claimant should not be deported to Somalia until further notice.
9.	The Claimant was refused bail by the AIT on 5 March 2008, 12 June 2008, 8 July 2008, 30 July 2008 and 19 August 2008.  On 16 September 2008 the Claimant made an application for asylum and applied for the deportation order against him to be revoked.  The Defendant did not respond to these representations until 12 August 2010.
10.	On 21 October 2008 the Claimant issued the present judicial review proceedings, challenging the legality of his detention.  The proceedings were subsequently stayed pending the outcome of other litigation.  On 14 November 2008 the Claimant was released on bail.  This represents the end of the first period of immigration detention which is under challenge in the present proceedings.  
11.	On 9 January 2009 the Claimant was arrested on suspicion of robbery.  He was charged with robbery on 10 January 2009 and was remanded in custody.  On 11 February 2009 the robbery charge was dropped.  He was immediately detained under the Immigration Act 1971.  This represents the start of the second period of immigration detention which is under challenge in the present proceedings.  The Claimant was refused bail on 5 August and 20 October 2009.  On 30 November 2009 he lodged an out of time appeal in the AIT against the Defendant's decision dated 12 February 2008 to refuse to revoke the deportation order against him, relying on the decision of the Supreme Court in BA (Nigeria) v SSHD [2009] UKSC [2010] 1 AC 444.  
12.	On 14 December 2009 the Claimant issued an application for interim relief in the Administrative Court as part of the present proceedings, seeking his release from immigration detention.  On 15 February 2010 Simon J granted the interim relief sought, ordering that the Claimant should be released from detention by 17 February 2010.  Permission to apply for judicial review was also granted on all grounds save for what was then Ground 2 of his challenge (relating to the Defendant's “active war zones” policy).  On 17 February 2010 the Claimant was released from detention.  This represents the end of the second period of immigration detention which is under challenge in the present proceedings.
13.	In a letter sent dated 12 March 2010 the Defendant responded to the Claimant's application dated 16 September 2008 for the deportation order against him to be revoked.  The Defendant refused to revoke the deportation order. This decision carried an in-country right of appeal (BA (Nigeria) v SSHD) [2009] UKSC 7 [2010] 1 AC 444).  On 20 July 2010 the Claimant appealed against the Defendant's decision.  His appeal was dismissed by the First Tier Tribunal (Immigration and Asylum Chamber) on 18 April 2011.  He became appeal rights exhausted on 4 May 2011.  
14.	Meanwhile on 9 April 2010 the Claimant was recorded by the Defendant as an absconder.  He was subsequent convicted of the following offences:
(a) On 6 May 2010 he was convicted of two counts of criminal damage and sentenced to a community order together with an unpaid work requirement of 120 hours.

(b) On 13 January 2011 he was convicted of causing racially or religiously aggravated fear or provocation of violence using words or writing, and subsequently sentenced to 12 weeks imprisonment suspended for 12 months, and an unpaid work requirement of 150 hours.  At the same time the sentence imposed following his conviction of 6 May 2010 was varied, due to his failure to perform the requirements of the community order.  A sentenced of 12 weeks imprisonment suspended for 12 months was imposed, together with a supervision order, an unpaid work requirement of 150 hours and a 12 month requirement to attend a thinking skills programme.

(c) On 17 March 2011 the Claimant was convicted of failing to comply with the community order requirements of a suspended sentence order, and sentenced to 12 weeks immediate imprisonment.

(d) On 5 April 2011 the Claimant was convicted of common assault and sentenced to 84 days imprisonment. 
  
(e) On 25 July 2011 the Claimant was convicted of using disorderly behaviour or threatening, abusive or insulting words, likely to cause harassment, alarm or distress.  He was sentenced to one day's imprisonment.

(f) On 1 September 2011 the Claimant was convicted of having a bladed instrument in a public place and sentenced to four months imprisonment.

(g) On 24 May 2012 the Claimant was convicted of affray and sentenced to 5 months imprisonment.

(h) On 22 August 2012 the Claimant was convicted of using threatening abusive or insulting words or behaviour with intent to cause fear or provocation of violence, and theft.  He was sentenced to a fine of £100 or 1 days' imprisonment (deemed served) for each offence.

(i) On 24 August 2012 the Claimant was convicted of common assault and sentenced to 20 weeks imprisonment.

(j)  On 26 November 2012 the Claimant was convicted of common assault and sentenced to 18 weeks imprisonment.

(k) On 13 June 2013 the Claimant was convicted of possession of cannabis for which he was fined £50 and ordered to pay a victim surcharge of £20.

(l) On 5 December 2013 the Claimant was convicted of robbery and sentenced to 4 years imprisonment.  He is currently serving this sentence.

15.	In addition to the two periods of immigration detention that are under challenge in the present proceedings the Claimant was detained under the Immigration Act 1971 between 17 May 2011 and 19 July 2011; between 15 December 2011 and 20 January 2011; between 28 March 2012 and 4 April 2012; between 12 September 2012 and 22 October 2012; and between 6 January 2013 and 24 May 2013.  
      The lawfulness of the first and second periods of detention
16.	In a consent order dated 3 February 2011 and sealed on 21 March 2011 the present claim was stayed pending the final outcome of the Appellant's petition to the Supreme Court in Lumba v SSHD [2011] UKSC 12 [2012] 1 AC 245.  The Supreme Court gave judgment in Lumba on 23 March 2011. On 16 March 2012 the Claimant was given permission to amend his grounds of challenge to include an allegation that his detention was unlawful in light of the decision in Lumba. This has now become Ground 1 of the Claimant's challenge to the lawfulness of the first part of the first of the two periods of detention.
17.	Between April 2006 and 9 September 2008 the Defendant applied an unpublished policy of blanket detention for foreign national prisoners who had completed their sentences of imprisonment.  This policy was in contradiction to the published policy, which provided for a presumption of release.  The Supreme Court in Lumba held that the unpublished policy was unlawful and that those detained pursuant to it were unlawfully detained.  In light of the decision in Lumba the Defendant concedes that the Claimant was unlawfully detained from 23 October 2007 to 9 September 2008 (the date upon which the unpublished policy was made public).  It follows that Secretary of State is liable to the Claimant for that period in the tort of false imprisonment.
18.	However, the Supreme Court in Lumba went on to hold that if it was inevitable that the foreign national prisoner would, in any event, have been lawfully detained under immigration powers (that is, if the power to detain had been lawfully exercised applying lawful published policies and in conformity with the correct legal principles) then the prisoner would have suffered no loss or damage as a result of the unlawful exercise of the power to detain, and would therefore be entitled to no more than nominal damages for false imprisonment.  It is thus necessary to determine whether the Claimant's detention would have been lawful, applying the published policy and the principles laid down in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. The core principles were summarised by Lord Dyson JSC in Lumba at para. 22 in these terms:
“(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek the exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”
19.	These principles also govern whether the Claimant’s detention was lawful in the remainder of the first period of immigration detention, between 10 September 2008 and 14 November 2008, and in the second period of immigration detention.  The Claimant contends that his detention was in breach of the Hardial Singh principles because it exceeded a reasonable time (the second Hardial Singh principle), and because during his detention it should have been apparent that there was no realistic prospect of his removal to Somalia within a reasonable time (the third Hardial Singh principle). 
20.	As to the reasonableness of the length of each period of detention, the Defendant relies principally on the risk of absconding and the risk of re-offending.  The relationship between these two categories of risk was elaborated by Lord Dyson in Lumba at paras. 106-110.  His conclusion was in these terms:
“109. But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only where there is also a risk of absconding.  As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends 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.”
21.	By the time the first period of immigration detention began, the Claimant had already been convicted of one offence of serious violence and two offences of robbery, for which he had been sentenced to two periods of imprisonment of four years, and one period of imprisonment of two years.  As noted above, on 3 September 1999 he was convicted of wounding with intent and sentenced to four years imprisonment; on 6 November 2002 he was sentenced to four years imprisonment for robbery; and on 7 March 2006 he was sentenced to two years imprisonment for robbery.  In my view this pattern of offending, in and of itself, demonstrated a significant risk of serious reoffending if the Claimant was released (a risk which subsequently materialised following his release from the second period immigration detention).  Throughout the first and second periods of immigration detention, the risk of re-offending was real and significant.  
22.	The Defendant also relied, albeit rather faintly, on the alleged failure of the Claimant to comply with reporting conditions in the past.  She contended that on 12 December 2006 the Claimant had been sent a letter stating that he should report within 24 hours to Eaton House and every 7 days thereafter.  He allegedly failed to report until 18 December 2006.  He did report, as required, on 15 January 2007 but thereafter allegedly failed to report before being returned to prison on 14 February 2007.  The Claimant challenges this allegation, contending that he did not receive the letter requiring him to report to Eaton House, that he reported on 18 December 2006 and attempted to report again on 8 January 2007. The Defendant concedes that it is unclear whether or when he received the letter.  I note that when refusing the Claimant bail on 12 June 2008 Immigration Judge Poole disregarded this allegation on the basis that that it was challenged and the Defendant was not in a position to prove it.  I adopt the same approach.  Otherwise, the Defendant is not in a position to prove any failure to comply with reporting conditions prior to the start of the first period of immigration detention or between the first and the second period.
23.	Nonetheless, applying the approach laid down in Lumba, the risk of absconding and reoffending was amply demonstrated by the frequency and seriousness of the offences he had committed prior to the first period of detention.  During the first period of detention the Claimant was repeatedly refused bail on the grounds of the risk of re-offending and failing to surrender (see decisions of 5 March 2008, 12 June 2008, 8 July 2008, and 19 August 2008).  Similar determinations were made during the second period of detention (see the decisions of 5 August 2009 and 20 October 2009).  Having regard to all the circumstances, the length of each period of detention was in my view reasonable.  It follows that the challenge based on the second Hardial Singh principle fails.  
24.	Turning to the third Hardial Singh principle, there are three issues raised by the Claimant for consideration: (a) the effect of the Rule 39 indication given by the European Court of Human Rights on 12 February 2008 during the currency of the first period of immigration detention; (b) the effect of the principle laid down in BA (Nigeria) V SSHD [2009] UKSC 7 [2010] 1 AC 444; and (c) the effect of the Claimant's outstanding representations of 16 September 2008.
25.	As regards the Rule 39 indication, the Secretary of State relies on R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270 [2013] 1 WLR 649.  In that case a Somalian national who was subject to a deportation order, and who was held in immigration detention received a Rule 39 indication dated 16 June 2009 requesting the United Kingdom not to effect deportation before the European Court of Human Rights had given judgment in the lead case concerning safety of returns to Mogadishu, Sufi and Elmi v United Kingdom (2011) 54 EHRR 209.  The judgment in Muqtaar (at paras. 28 to 32) explains in detail the history of the litigation in Sufi and Elmi, and the circumstances under which the European Court of Human Rights came to adopt a policy of issuing Rule 39 indications in all cases concerning return to Somalia without the necessity for consideration of the individual merits of each case.  The judgment in Sufi and Elmi was delivered on 28 June 2011 holding that the violence in Mogadishu was of such a level of intensity that anyone in the city, except those who were exceptionally well-connected to “powerful actors” would be at real risk of treatment contrary to Article 3 of the Convention.  On 12 July 2011 the Secretary of State withdrew her decision not to revoke the deportation order against the Claimant in that case, and the following day he was released on bail.  He had been detained for 41 months in all.  The trial judge found that despite the Rule 39 indication, and the protraction of the proceedings in Sufi and Elmi, the Claimant's detention did not breach the third principle in Hardial Singh (see [2011] EWHC 2707 at [128]):
“Overall, I accept that as the period of detention becomes longer, so a greater degree of certainty and indeed proximity of removal is likely to be required.  I accept also that there was no certainty that the litigation – the ECtHR proceedings and the application for revocation of the deportation order – would conclude in the Secretary of State's favour, and that it was not possible to predict precisely when they would conclude.  However, I think that at all times it could be anticipated that those proceedings would be completed within a reasonable time, and that once they were concluded, if which might be the case the result was in the Secretary of State's favour, then there was no other obstacle to deportation.  I think in the circumstances of this case, and taking account of the risk the Claimant presented of absconding and re-offending, that was sufficient.”
26.	The Court of Appeal upheld the judge's conclusion.  Referring to the formulation of the Hardial Singh principles by Lord Dyson JSC in Lumba (see para. 18 above), Richards LJ (with whom the other members of the Court agreed) emphasised (at para. 36) that the key question was whether, at the time of the Rule 39 indication it was apparent that the proceedings in Sufi and Elmi would become so protracted that there was no prospect of effecting deportation within a reasonable period:
“At the time of the receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period:  it was possible but it was not apparent that they would drag on as they did.  Nor was it apparent that the ECtHR's final decision would be such as to prevent the claimant's removal.  I stress “apparent” because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.”
27.	Applying this approach Richards LJ held (at para. 38 of the judgment in Muqtaar) that a situation of uncertainty, such as was created by the pending ECtHR litigation and the Rule 39 indication did not meet the threshold for a breach of Hardial Singh principle (iii) on the facts of that case: 
“I adhere to the view that there can 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.  At the time of receipt of the Rule 39 indication in the Claimant's case, although it was not possible to say when the ECtHR proceedings would be concluded, there was none the less a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances.”
28.	Whilst the decision in Muqtaar is fact-sensitive, it provides clear guidance as to the correct approach.  The Claimant in the present case was detained for one period of almost 13 months and shortly afterwards for a further period of 12 months.  I adopt the approach approved in Muqtaar, namely that the longer the period of detention, the greater must be the likelihood and proximity of deportation if detention is to remain justified.  The Rule 39 indication in the present case was given on 12 February 2008 just under four months into the first period of detention and was in force throughout the remainder of both periods of detention.  The Claimant was finally released on bail on 17 February 2010, 16 months prior to the judgment in Sufi and Elmi.  In my view, applying the approach laid down in Muqtaar, the existence of the Rule 39 indication throughout the relevant period does not in itself have the effect of establishing that it was apparent, at any point during either period of detention, that there was no reasonable prospect of the Claimant's removal within a reasonable time.
29.	I turn next to the impact of the principle laid down in BA (Nigeria) V SSHD [2009] UKSC 7 [2010] 1 AC 444.  In that case the Supreme Court held that rejected claims for the revocation of a deportation order that are not certified as clearly unfounded under sections 94 and 96 of the Nationality, Immigration and Asylum Act 2002 should be allowed to proceed to an in-country appeal under sections 82 and 92, whether or not they are accepted by the Home Secretary as “fresh” claims.  
30.	The Claimant made a claim for humanitarian protection on 8 February 2008.  This was rejected by the Defendant on 12 February 2008.  The Defendant also treated the Claimant's submissions of 8 February 2008 as an application to revoke the deportation order in force against him, and refused to revoke the deportation order.  Since the Defendant declined to treat the submissions as a fresh claim, on the law as it was then understood, the Claimant was not entitled to an in-country right of appeal.  In light of the decision in BA (Nigeria) it is common ground that the Claimant ought to have been entitled to an in-country right of appeal against that decision, unless the Secretary of State certified the application as clearly unfounded (and the Defendant invites me to proceed on the assumption that no such certification would have been given).  The question then is whether the existence of an in-country right of appeal which he ought to have enjoyed would in itself have the effect of rendering it impossible for the Defendant to deport the Claimant within a reasonable period of time.  In my view, the answer to that question must be in the negative.  The mere existence of an in-country right of appeal (had it been recognised at the time) would not have made it apparent that the Claimant could not be removed within a reasonable period of time.  
31.	The third issue raised by the Claimant relates to the claim which he made on 16 September 2008 for asylum and for the deportation order against him to be revoked.  The Defendant did not respond to these representations until 12 August 2010, after the Claimant's release from the second period of detention on 17 February 2010 (some 17 months after the representations were made).  The Claimant contends that the existence of outstanding and unanswered representations operated so as make it apparent, from 16 September 2008, that he could not be removed within a reasonable time. If the Secretary of State knew at the outset that she was going to take such a lengthy period to respond then she would have to have powerful reasons for exercising her power to detain in the meantime.   Certainly, the time taken to respond appears surprising, having regard in particular to the history of the case.  However, the mere fact of representations having been made which have not been responded to does not necessarily equate to a finding that the Claimant could not be removed within a reasonable period of time.  The proper question is whether, at any determinable point during the Claimant's detention, it should have become apparent that the representations would not be responded to within a reasonable time.  The decision of Simon J. on 14 February 2010 to release the Claimant on bail was no doubt influenced by the length of time that the Defendant had by then already taken to respond.  Nonetheless it was not, in my view, apparent at any determinable point in the process prior to the Claimant's release on bail on 17 February 2010 that the representations would not be responded to within a reasonable time.   
32.	It follows that there was, in my view, no breach of the third Hardial Singh principle.
      Conclusion
33.	Returning to the decision of the Supreme Court in Lumba, it is in my view inevitable that if the power to detain had been lawfully exercised between 23 October 2007 and 9 September 2008, applying lawful published policies and in conformity with the correct legal principles, the Claimant would nonetheless have been detained. Accordingly, whilst his imprisonment between 23 October 2007 and 9 September 2008 was unlawful, he is entitled to only nominal damages since he sustained no compensable loss.  I would set those damages at £5.  The Claimant’s challenge to the remainder of the first period of detention and to the second period of detention is dismissed.
34.	The parties are to make written submissions as to costs, if not agreed, within 14 days of the handing down of this judgment.