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
		04/08/2014

His Honour Judge Heaton QC:

1. This is a challenge by way of Judicial Review to a decision of the Defendant ("the SSHD"), that the Claimant Abdul-liah Lemtelsi be detained under powers contained within immigration legislation after the custodial part of a term of imprisonment imposed upon him had expired on the 15^th September 2012. That detention continued until 7^th January 2014 when he was granted bail. The Claimant seeks relief including damages.

The salient background

2. The Claimant entered the UK on the 22^nd August 2010 hidden aboard a lorry. He had a paid a significant sum to be brought into the UK. When discovered by immigration officials he claimed asylum. The Claimant said (untruthfully he now says) that he was from Iraq. His claim was rejected by the SSHD on the 13^th September 2010, and on appeal to the Tribunal on the 3^rd November 2010. The tribunal said inter alia that his account was a fabrication designed to gain entry to the UK. He became appeal rights exhausted on the 16^th November 2010.
3. The Claimant came to the attention of the police in connection with a series of criminal offences committed by him:

(i) On the 10^th October 2010 he was cautioned for affray and dispersed to Swansea.

(ii) On the 9^th May 2011 he was sentenced to 13 weeks imprisonment for theft from a dwelling.

(iii) Having been released from immigration detention in March 2011 he was, a matter of a few days later, arrested for robbery. The circumstances of the robbery were that the Claimant attempted to rob a person of their mobile phone and then punched them in the face. On the 20^th September 2011 the Claimant was sentenced to 30 months immediate imprisonment for that robbery and recommended for deportation.

4. In addition it is said that the Claimant failed to report following dispersal on the 6^th and 13^th December 2010 and the 10^th January 2011. The Claimant denies those alleged failures.
5. On the 23^rd October 2011 following his conviction and imprisonment the Claimant was notified of his liability to deportation.
6. On the 19^th December 2011 while still in prison the Claimant disclosed (he says now truthfully) that he was not an Iraqi but from Morocco. He was told by the officer that he must prove this by getting hold of documentation from his family or friends which it is recorded he agreed to do. The SSHD says that there is no evidence that the Claimant has ever taken such steps.
7. On the 22^nd December 2011 an officer obtained information for a Moroccan Emergency Travel Document ("ETD") which was sent on to the appropriate unit at Leeds. The Claimant was interviewed under caution. He confirmed that he was Moroccan and provided good information for a bio-data form giving information to obtain a travel document.
8. On the 13^th January 2012 the completed form is recorded as having arrived in Leeds.
9. Before that on the 11^th January 2012 an OASYS assessment of risk of harm to the public posed by the Claimant put that risk at "medium".
10. On the 28^th January 2012 the SSHD by letter requested information from the Claimant to assess his case. He responded saying that he had "lost" his passport. He went on to say that he was not planning to remain in the UK. He makes it clear that his position is that he wishes to be deported. The Claimant now says that a fellow prisoner completed this form for him as he could not write in English, and that he never meant to say his passport was lost, rather that he had never had one.
11. On the 6^th February 2012 the unit at Leeds wrote to the Claimant informing him they were now dealing with his case. On the 20^th February 2012 information was requested from the Prison Service by Leeds.
12. On the 26^th March 2012 the Claimant asked the SSHD to provide him with the contact details of the Moroccan authorities so that he could contact them himself to see if he could progress matters.
13. On the 28^th April 2012 an Early Removal Scheme (ERS) authorisation form was completed.
14. On the 30^th June 2012 there is a recording of the officials' consideration of the proposed ETD application. Two points of relevance emerge from that note:

(i) That an interview with the Consulate will only take place if asked for by it, and

(ii) That the likely timescale for an application for an ETD with no supporting documentation was "up to 12 months plus"

15. On the 2^nd July 2012 the SSHD wrote to the Moroccan Consulate submitting the ETD application.
16. Also at around this time the Claimant signed a waiver of appeal rights against the deportation decision stating that he intended to leave the UK for Morocco.
17. On the 23^rd August 2012 a deportation order was signed, and the Claimant asked the SSHD for an update on his removal to Morocco.
18. On the 6^th September 2012, as he approached the end of the custodial part of his sentence, the Claimant was told that his detention would carry on post that date under immigration powers.
19. On the 15^th September 2012 on completion of the custodial part of his sentence the Claimant was detained under para 2(3) of schedule 3 to Immigration Act 1971 (IA).
20. I pause from the march of the chronology for a moment to consider the risk assessment of the Claimant. The Claimant says that the OASYS report assessed the Claimant as a medium risk. It is said by the Claimant that he did well in prison and inter alia was a wing peer and the OASYS assessment has not been updated to take account of that. The Claimant says before me that nothing was obtained from NOMS. The case worker assessed the risk as medium it said, but it was then increased to high without explanation the Claimant submits.
21. Looking at the documentation I have already referred to the January 2012 OASYS assessment. At the first detention review the assessment of risk is that there is a "high" risk of absconding and "medium" risk of reoffending. There is no NOMS information available as the SSHD has not been able to make contact with the Claimant's Offender Manager ("OM"). It is clear by a note (359) that this information has been requested.
22. By the time of the fourth monthly review more information is available. The Claimant's OM has provided information. The risk of absconding remains assessed as high. The risk of reoffending is now also described as "high". The risk of reoffending was also assessed as "imminent".
23. The Claimant's position was kept under review. At the March 2013 review for example there is a record of a careful consideration of the Claimant's continued detention. He is said not to be suitable for release even under "rigorous contact management". The July 2013 review records a similar careful consideration of the Claimant's detention.
24. Returning then to the chronology on the 24^th September 2012 the Claimant signed a Facilitated Return Scheme (FRS) disclaimer asking to return to Morocco. This was accepted the following day.
25. On the 26^th September 2012 the Claimant's solicitors wrote to the Prison Governor informing him that the Claimant wished to return to Morocco and asking for any relevant forms the Claimant would need to complete. On the 28^th September 2012 the same solicitors wrote to the Moroccan authorities formally requesting a prison visit to discuss the Claimant's return to Morocco.
26. On the 9^th October 2012 the Claimant underwent his first month detention review. It was recognised therein that the barrier to removal was the lack of an ETD. It was acknowledged that the Claimant was "eager to leave".
27. On the 16^th October 2012 the Moroccan authorities confirmed to the Claimant's solicitors that they were willing to interview the Claimant either in the Consulate or in one of the detention centres in London. It seems that this information was not communicated on to SSHD at the time. On the 30^th October the solicitors wrote again to the Moroccan authorities asking for a face to face interview in HMP Dorchester.
28. On the 29^th October 2012 the travel document application was added to the priority list to be chased with the Moroccan authorities, and on 7^th November 2012 the Claimant's name was included on the monthly progress list to be sent to the Moroccan embassy. If a response was not received the relevant note indicates that the case would be followed up the first week of each month.
29. On the 12^th November 2012 the Country Returns & Operational Strategy team ("CROS") wrote to the Moroccan authorities requesting an update.
30. On the 7^th February 2013 an official attended the Moroccan embassy and requested progress on the ETD application. The Claimant has been critical of the SSHD for her failure to make any enquiry with the Moroccan authorities about a possible interview. However, there is no suggestion in the record of this interaction with the Moroccan authorities that they were saying that a lack of interview was a bar to progress even as late as 7^th February, indeed an interview seems not to have been mentioned at all on the note.
31. On the 8^th March 2013 the Claimant's then new and present solicitors wrote to SSHD reinforcing that the Claimant was keen to return to Morocco as soon as possible. They sent on a copy of the letter of 16^th October 2012 from the Moroccan authorities saying they were prepared to interview the Claimant. The solicitors' letter to SSHD contains a request that the Claimant be transferred to an Immigration Removal Centre ("IRC") in the London area to facilitate an interview as soon as possible.
32. Three days later the same solicitors wrote to the Moroccan Consulate repeating that the Claimant wished to return to Morocco voluntarily as soon as possible. He was saying that he had left Morocco when he was still a minor, had no passport or identity documents and had lost contact with his family. The solicitors asked for confirmation that it was accepted that the Claimant was who he now said he was and that he was Moroccan. The Claimant asked that all possible steps taken to expedite the ETD procedure.
33. On the 18^th March 2013 SSHD wrote to the Claimant referring back to her letter of the 28^th June 2012 and asking the Claimant to provide documented evidence of his identity. The letter gave him 10 days to produce those documents with the warning that if he did not do so he would be withdrawn from the FRS scheme. His solicitors responded on the 25^th March. They told SSHD no doubt on instructions that he left Morocco when he was young and without travel documents.
34. In the same letter the solicitors again reinforced that the Claimant wanted to return to Morocco, had contacted the Red Cross Tracing service to try to find members of his family, and did not wish to be withdrawn from the FRS.
35. On the 8^th April 2013, the SSHD informed the Claimant that he had been withdrawn from FRS. The solicitors replied two days later, again repeating that the Claimant wanted to return to Morocco. The solicitors also chased up the Moroccan authorities for a reply to their letter on the three occasions from this point to July 2013.
36. On the 2^nd May 2013 the Claimant's solicitors asked SSHD for a likely timescale for provision of the ETD as the Claimant was to be transferred to an IRC in London so that he could be interviewed face to face by the Moroccan authorities. The SSHD also noted that no face to face interview had yet taken place and action should be taken to arrange such an interview.
37. On the 8^th May, the SSHD wrote to the Claimant's solicitors referring to the letter of the 2^nd May saying that they could not give a timescale for the provision of an ETD and that she was making arrangements for the Claimant to be interviewed by the Moroccan authorities.
38. On the 16^th May 2013 the Claimant served a letter before claim.
39. On the 23^rd May 2013, the SSHD granted the Claimant a s4 accommodation address in respect of which he could make a bail application. He did so but the application had to be withdrawn as the address had been incorrectly issued.
40. On the 31^st May 2013 a face to face interview was arranged for the Claimant to take place at HMP Wandsworth (HMPW) in June 2013. The Claimant was at HMP Dorchester (HMPD). Arrangements were made for transfer.
41. The Claimant was to be interviewed at HMPW on the 7^th June 2013. It is suggested that before this interview the Claimant was spoken to by the CROS team. It is asserted that the Claimant said to them that he did not wish to go back to Morocco. The Claimant denies this and says in support that this is the only occasion where he is recorded as taking that position.
42. In addition to that matter the existence of an address book owned by the Claimant emerges at around this time. The Claimant says that he had a book with details of family and friends in it. His account is that he lost contact with his family after he went into prison. He had telephoned family without success since going into prison.
43. The book is now said to be missing. The account of what happened to the book has varied. The Claimant's statement is silent as to what happened to it. On one account it was lost when the Claimant travelled to HMPW for his interview. On his account through Counsel at the hearing before me the Claimant lost it later when moving between HMPD and HMP Wormwood Scrubs (HMPWS). On another account he had no such book. Counsel for the Claimant submitted at the hearing before me that the SSHD may now have the book, but it was not clear on what grounds that was suggested.
44. The interview did take place that day.
45. Between 17^th June 2013 and 4^th July 2013 the Claimant went on hunger strike, refusing food but not liquid, at HMPD. He was saying that he wanted to go back to Morocco as soon as possible. There was substance to this strike; on the 28^th June Dorset NHS Trust expressed concerns about the Claimant's health.
46. Also on the 28^th June 2013 the Claimant's case worker faxed HMPD asking that the Claimant be reassured by staff there that the Moroccan embassy was being chased for a travel document for him. It is suggested by the Claimant that this was not correct, but the records of officials' email traffic show that between the 5^th and 8^th July verification checks were "going on" in Rabat. A request was made by an official to see what could be done with the Moroccan authorities, the relevant manager replies that he will push the Consulate. There is no record of any outcome of that. There is also disclosed further email traffic through to August 2013 showing that the SSHD was seeking to engage with the Moroccan authorities, but that there were practical difficulties outside the control of SSHD which appear to have limited progress.
47. These proceedings were issued on the 12^th July 2013.
48. On the 31^st July 2013 the Claimant's solicitors again wrote to the Moroccan embassy for a timescale for the provision of an EDT. There was no reply and the letter was chased 3 times to November 2013.
49. On the 17^th September 2013 permission was refused on the papers in respect of this claim.
50. On the 24^th September 2013 there is disclosed an email passing between officials. It records that there was a meeting between officials and the Moroccan authorities at the Moroccan Consulate on the 18^th September 2013. Some frustration is expressed at the lack of progress and in particular the apparent lack of success in fingerprint matching. The writer says that she needs to make urgent progress in her outstanding cases and is asking for in country assistance.
51. On the 6^th January 2014 the solicitors asked SSHD for any disclosure\correspondence relating to a hoped for meeting between SSHD and the Moroccan authorities. Such a proposed meeting had been revealed in the documents for the Claimant's coming bail hearing. The Claimant says (and is not contradicted) that no disclosure has ever been given about this meeting.
52. On the 7^th January 2014 the Claimant was granted bail by an Immigration Judge to an address in Bristol with weekly reporting. This was not a s4 accommodation address, the Claimant says he had given up on one of those being made available, but the home of someone he knew.
53. On the 24^th January 2014 the Claimant was due to travel to London for a conference with Counsel. Taking advantage of his presence in London the Claimant attended at the Moroccan Consulate and the Embassy in person seeking assistance with his ETD.
54. On the 3^rd February 2014 the solicitors wrote to the Moroccan Consulate again.
55. On the 13^th February 2014 Mr Jonathan Crow QC, sitting as a Deputy Judge of the High Court, granted permission to proceed on two grounds.
56. On the 30^th June 2014 the parties agreed that this hearing be confined to the first ground, the claim in respect of Hardial Singh principles 2-4; the second ground relating to the lawfulness of detention in prison rather than in an IRC is to be stayed awaiting the decision in the claim of R (on the application of Idira) v SSHD, CO/129/2014.

The legal framework

57. There is no issue here that the SSHD had power to detain the Claimant following the expiry of the custodial part of his sentence (para2(3) to Schedule 3 Immigration Act 1971 (IA))
58. Where a person is so detained it is for the SSHD to show that the detention is lawful (Lumba). Given that the liberty of the subject is engaged the burden is a heavy one (Khawaja).
59. When conducting its review the Court is entitled to assess the reasonableness of the detention objectively for itself (Khawaja).
60. Also when conducting its review the Court may find that any authority for detention is vitiated by public law error which bears on and is relevant to the decision to detain (Lumba).
61. However there is a dividing line between administrative failing and unreasonableness amounting to illegality (Krasniqi)
62. It is well settled that the power of administrative detention is subject to the limitations and controls found in the Hardal Singh principles. They are:

(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 the reasonable diligence and expedition to effect removal.

63. In respect of "a reasonable period" in an analysis subsequently approved in Lumba Dyson LJ (as then) says in R(I)-v-SSHD [2002] EWCA 888:

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 yet 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. Thus, 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. But 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 being 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.

64. In Lumba Lord Dyson expressed the point in this way:

103. A 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 para 47 of my judgment in R (I), 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 a 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.

65. It follows from Lumba that the reasonableness of a period of detention is to be assessed against the facts of the particular case. Thus the fact that a Court has found in another case on a particular set of facts that a shorter period of detention is unlawful, or in another case on a particular set of facts that a longer period is lawful, is of marginal if any assistance to a Court which has to address the factual matrix before it.
66. The risks of absconding and reoffending are very important factors in considering the lawfulness of detention. Risk of harm to the public should a person abscond is of particular weight (Lumba).
67. Where a detainee can show he has been cooperating that goes in his favour (Hardial Singh).

How the Claimant puts his case

68. Looking then at the Claimant's case in respect of Hardial Singh principles 2-4.

Principle 2 - Detention for period that was unreasonable in all the circumstances

69. The Claimant approaches the factors set out in the Judgment of LJ Dyson (as then) in this way

(i) The near 16 month detention exceeded what was reasonable in the circumstances of this case

(ii) Risk of re offending and absconding:

a) The SSHD did not take into account the good conduct of the Claimant in prison.

b) She had no NOMS assessment.

c) The Claimant had been cooperating and so was less likely to abscond or re-offend.

d) He was less likely not to report for the same reasons.

e) The risk of absconding could have been managed by tagging and reporting restrictions.

f) In any event the risk of reoffending or absconding did not render the detention lawful as the Claimant could not be removed within any reasonable time.

(iii) Nature of the obstacles and the Claimant's conduct. The sole obstacle to removal was that the Claimant had no travel document. It is the Claimant's case that he cooperated in every way in his removal from the point when he indentified himself as a Moroccan at the end of 2011 and went on to provide good biographical data.

(iv) Diligence speed and effectiveness of steps taken by SSHD to surmount such obstacles. The Claimant's case is that the SSHD has not acted with reasonable diligence speed and effectiveness. He says:

a) Any difficulty in arranging an interview with Moroccan authorities is the fault of the SSHD, she should have been making her own enquiries on the matter.

b) The withdrawal of the FRS is to be put at the door of the SSHD.

c) There were periods of inactivity by SSHD.

d) Assertions have been made that final checks were being carried out in Rabat and that the Moroccan authorities would be chased without any evidence being put forward to support them.

e) There has been no response to the request for disclosure in connection with the meeting with the Moroccan authorities foreshadowed in the documentation around the January 2014 bail application.

(v) The conditions the Claimant was being kept in and their impact upon him. The Claimant points to the following matters saying that they were exacerbated by the lack of progress in obtaining a ETD and the difficulty over achieving a transfer so that he could be interviewed:

a) He was in prison not an IRC.

b) His first s4 address was mishandled.

c) He was assaulted with a kettle in prison.

d) He self harmed. He was on ACDT watch. At one point the Claimant was on hunger strike. He suffered anxiety and depression, frustration and isolation. He was on medication for depression and sleeplessness.

e) He was not able to pursue the Moroccan authorities as quickly as he would have liked.

70. Third Hardial Singh principle - Before the expiry of the reasonable period it became apparent that the SSHD would not be able to effect deportation in a reasonable period.
71. The Claimant's case on this head is:

a) With no supporting documentation the SSHD knew that an application for an ETD was likely to take 12 months plus and could take 24 months.

b) The ETD application was not submitted until July 2012.

c) At the commencement of the detention on 15^th September 2012 it was apparent that there was not a realistic prospect of obtaining a travel document within a reasonable period, and so it could not be said then that deportation could be affected within a reasonable period.

d) SSHD knew in the summer of 2013 that there would still be a considerable wait of perhaps a year before the ETD would be obtained.

e) The SSHD never provided any timescale for removal.

f) In a submission sent to the court after the hearing the Claimant argued that the two dates at which it could be argued that it was clear that removal could not be effected within reasonable period were

(i) 29.10.2012 when the case was added to the priority list, or

(ii) 2.1.2013 6 months from the date of submission of the ETD.

72. Fourth Hardial Singh principle – the SSHD failed to act with reasonable diligence and expedition to effect removal
73. The Claimant argues:

a) The records show periods of inactivity by SSHD.

b) The SSHD ought to have been making her own enquiries with the Moroccan authorities about an interview.

c) It is not open to SSHD to argue that even if she had acted more expeditiously it would have made no difference to the outcome.

The SSHD case

74. The case of the SSHD is that the detention of the Claimant was at all times lawful and that none of the complaints made by the Claimant can be sustained so far as to lead to a finding of public law error.

Discussion

75. This claim turns on a number of threads of argument running through the cases of the parties. Many of them are relevant to more than one of the Hardial Singh principles I have to consider here. I propose therefore to begin by addressing those threads individually and explaining my conclusions in respect of them.

Was the Claimant cooperative in his removal?

76. The Claimant can certainly point to a catalogue of steps he has taken to promote his return to Morocco. The SSHD points to a number of factors which suggest that cooperation may not have been as full as the Claimant suggests. I have in mind in particular: the changing account of whether or not he had ever held a passport; inconsistent accounts in relation to what was contained in the address book; changing accounts in relation to what happened to the address book; the Claimant's agreement to contact his family and friends to obtain documents to prove his identity apparently not followed through.
77. Of course, while it is entirely appropriate for the SSHD to pursue the account the Claimant has now given, it remains the case that there is no clarity as to whether the Claimant is who he now says he is or not.
78. Having said all that the burden here falls on the SSHD. Having assessed the evidence that is before me I will proceed here on the basis that the Claimant is entitled to credit for cooperation.

"Due diligence" by SSHD

79. There are two separate questions I must ask myself in relation to what might very broadly be described as due diligence, they are taken from separate Hardial Singh principles:

(i) Did the SSHD exercise diligence, act with speed and take effective steps to obtain an ETD? (one of the matters relevant to principle 2) and

(ii) Did she act with reasonable diligence and expedition to effect removal? ("free standing" principle 4).

80. I can take the two together here to avoid repetition.
81. On examination of the relevant documentation during submissions, save for one period which I shall come to, the Claimant has singularly failed to demonstrate that the SSHD did not live up to her obligations here.
82. One example of that alleged failure is the Claimant's criticism over the SSHD's alleged failure to expeditiously arrange a transfer for the Claimant so that he could be interviewed by the Moroccan authorities. The sequence of events was as follows:

(i) The standard direction is that the Moroccan authorities do not routinely require an interview.

(ii) The Claimant's own solicitors received a letter in October 2012 saying that the Moroccan authorities would interview the Claimant either at the consulate or at a detention centre in London.

(iii) The Claimant's then solicitors did not inform SSHD of the content of that letter for almost 5 months, indeed it was not until new solicitors were instructed that a copy of the letter was sent on to SSHD.

(iv) The Claimant says that his own solicitors failure to send on the letter is no defence for SSHD who should have been making her own enquiries as to an interview (remembering for the moment that the Moroccan authorities did not routinely require an interview).

(v) In fact the chronology shows that the SSHD was making enquiries post 16^th October 2012. On the 12^th November 2012 CROS wrote to the Moroccan authorities requesting an update and on the 7^th February 2013 an official attended the Moroccan embassy and requested progress on the ETD application. None of that appears to have produced a suggestion from the Moroccan authorities that: they were waiting to interview the Claimant; that they could not do so until he was transferred to London; or that they wanted the SSHD to arrange such a transfer.

83. Further alleged periods of delay are:

(i) 29^th October 2012 to 31^st May 2014. Here in fact the case was now on the relevant list for monthly chasing, the SSHD had chased the Moroccan authorities separately to that in November 2012 and held a face to face meeting in February 2013. On the 8^th May 2013 the SSHD wrote to the Claimant's solicitors and told them that she was in the process of arranging for the Claimant to be interviewed.

(ii) 7^th June 2013 to 7^th January 2014. At this time the documents show that the Claimant's case was on the monthly check list. In addition in September 2013 the documents show that there had been a meeting with Moroccan officials and thereafter in country assistance had been requested with a view to making progress.

84. None of the above criticisms of SSHD are made out in my judgment.
85. Where I have thought longer and harder is in relation to the delay between the Claimant supplying his biographical data and the ETD application being dispatched to the Moroccan authorities.
86. Mr Gullick made the point strongly that this was before the period of detention began, but he did not go so far as to say that I could not take any delay at this point into account. In my judgment that was a proper position to take and I am entitled to take into account any delay I find in this period. After all given the likely timescales in obtaining an ETD here a delay pre detention was likely to lead to a longer period of immigration detention in the end.
87. The first point to make about this period is that the SSHD made a commendably rapid response to the Claimant's change of account as to his identity. The SSHD took onboard his new account and within days identified that the obstacle to removal would be the lack of any travel or identity documents. She took steps quickly to deal with that:

(i) The Claimant was told that he must prove his identity by getting hold of documentation from his family or friends which it is recorded he agreed to do.

(ii) The SSHD identified that it would be necessary to apply for an ETD, and

(iii) Officials took from the Claimant information to begin the process of making an application for such a document to the Moroccan authorities.

88. Next, the period of alleged inactivity is not, I find, as long as the Claimant asserts. It is clear from the records that into February 2012 the Leeds office was beginning to process the ETD application. The last recorded entry is 20^th February where information is requested from the Prison Service.
89. Having said that it is difficult to identify what steps the SSHD was taking in the period from the end of February 2012 to the time of the issue of the ETD application in early July 2012. It seems to me that there is a period of inactivity here.
90. What is the relevance of that period? I have concluded that when undertaking my analysis of the relevant factors in respect of the second Hardial Singh principle I should have in mind when considering the diligence, speed and effectiveness of the SSHD's actions what I find to be this period of inactivity.
91. On the other hand, (as is said in Krasniqi) there is a dividing line between administrative failure and unreasonableness amounting illegality. When considering the test in Hardial Singh principle 4 it seems to me that despite this period of inactivity the SSHD did not cross the line into illegality.

Risk of re offending and or absconding

92. The starting point here is whether at the point of detention the Claimant did pose a risk of reoffending or absconding. As Mr Gullick points out there were a series of matters the SSHD was entitled to take into account which pointed in that direction:

(i) The Claimant had been able to travel clandestinely to the UK.

(ii) He had given false information as to his identity on arrest.

(iii) He had sought to run away when he was to be arrested for the robbery.

(iv) He had committed serious criminal offences over a relatively short period including a robbery within days of being released from a period of detention.

93. The Claimant says that the SSHD did not take into account the Claimant's good behaviour while in prison and there was no up to date NOMS assessment of him However, the papers show that the SSHD did obtain information from the Claimant's OM and that the information caused the SSHD to increase her assessment the level of risk of re-offending from medium to high.
94. The Claimant's case is that as he wanted to go back to Morocco he had every incentive not to reoffend or abscond and so would not do so. While that may sound logical in the forensic atmosphere of a courtroom in my judgment out in the world the Claimant has not demonstrated that he can be relied on to act in such a linear way. After all I have no doubt that he did not want to go to prison yet he committed offences which made a sentence of imprisonment highly likely. Moreover, the Claimant appears not to have wanted be returned to Morocco or anywhere else at the time of the robbery yet he committed an offence which drew attention to himself and that he must have known made deportation likely.
95. Furthermore the offences committed by the Claimant demonstrate in my judgment that he was a risk to the public. The robbery involved an assault upon his victim. The affray is an offence of public disorder.
96. The Claimant says that the risk could have been managed by bail conditions citing tagging and\or reporting. Neither of those conditions reduce the risk or reoffending it seems to me, and the effect of tagging and\or reporting is to indentify more quickly whether a person has absconded, rather than preventing them from doing so.
97. In my judgment there was here a significant risk of the Claimant both absconding and committing further offences if he was not detained. Furthermore given the nature of the Claimant's offending in the past were he to reoffend he would pose a risk to the public.

The prospective period of detention before obtaining an ETD

98. At the point of detention, September 2012, the SSHD had already identified the issue preventing return to Morocco, the Claimant's lack of travel documents, and had sought to address it by applying for an ETD for the Claimant. The information available at the time was that the ETD application would take 12 months and probably more, and on the other hand probably less than 2 years.
99. Notwithstanding the submissions of the Claimant in respect of the matters I must have in mind here as set out in paragraph 48 of R(I) I have come to the conclusion that a time estimate of between one and two years was at the time of detention a reasonable period. In weighing all the relevant factors I am persuaded to that view in particular by the significant risk of reoffending and absconding I find existed here.

Did the prospective period to obtain an ETD change?

100. I turn now to the question of whether following detention it became apparent that SSHD would not be able to effect deportation within a reasonable period so as to require the SSHD to reassess the detention of the Claimant and release him, (Hardial Singh principle 3).
101. The ETD application was submitted in July 2012. By the time the Claimant was granted bail the application had been ongoing for 18 months. So in simple terms the application was still within the timeframe initially envisaged by the time the Claimant was granted bail.
102. Of course the test goes far wider than that starting point. I must consider whether at any point it should have been apparent to SSHD that she would not be able to effect the deportation of the Claimant within a reasonable time. I have concluded that the answer to that question is no. These are my reasons.
103. The Claimant in submissions puts forward two dates at which he says the SSHD should have reached this conclusion; 29^th October 2012 when the case was added to the priority list or 2^nd January 2013, 6 months from the date of submission of the ETD. I reject both dates.
104. The placing of the Claimant's case on the priority list was not an indicator that the timescales had changed, it was a step to keep the matter under review, a step which the Claimant elsewhere criticises the SSHD for not taking much earlier. The 2nd of January 2013 is nothing more than an arbitrary date 6 months after the ETD was submitted.
105. The position here was that the ETD application had been submitted. The SSHD knew at the time of submission that it would take 12 months plus to process. While it may have been difficult to obtain information as to progress from the Moroccan authorities at times at no point did information emerge which put the initial timescale for this application into question.

Conclusions

106. Stepping back then and having regard to that analysis my conclusions are as follows:

(i) That the Claimant was not detained for a period that was unreasonable in all the circumstances. In my judgment while I have in mind all of the factors set out in Lumba (paragraph 104) the significant risk of the Claimant re offending and/or absconding are the key factors here and render the period of detention reasonable

(ii) There did not come a point before the expiry of the reasonable period when it became apparent that the SSHD would not be able to effect deportation within a reasonable time

(iii) The SSHD did not fail to act with reasonable diligence and expedition to effect removal

107. Accordingly, Ground 1 of the claim fails.
108. Costs are reserved until determination of the outstanding issue.

Permission to Appeal

109. By Counsel's written submission of 28^th July 2014 the Claimant seeks permission to appeal. There has been no request for further particularisation of the reasons. The matters raised by the Claimant are dealt with in the Judgment and in consequence I refuse permission.