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
		30 January 2014

His Honour Judge Birtles:

Introduction

1. This is a claim by Mr Daniel Matows Zerom seeking a declaratory order that some or all of his immigration detention from 28^th November 2008 until his release from detention on 11^th July 2012 was unlawful. The Claimant withdraws his challenge to the issuing of a removal direction, directing his removal to Ethiopia on 11^th July 2012 as that is now academic.
2. The Claimant is represented by Mr Declan O'Callaghan of Counsel. The Defendant is represented by Mr Stephen Whale of Counsel. I am grateful to both counsel for their oral and written submissions.
3. I heard the case on 6^th November 2013. At the conclusion of the hearing I reserved judgment.

The Factual Background

4. I gratefully acknowledge the detailed history provided by Mr O'Callaghan in his skeleton argument which I largely adopt.
5. The Claimant was born on 15 March 1981 and he is now aged 32.

Immigration History

6. The Claimant entered the United Kingdom on 28 August 1994 in possession of a valid Ethiopian passport. He was aged 13.
7. He was granted leave to enter as a visitor for 24 hours.
8. He claimed asylum on 1 September 1994.
9. His asylum application was refused by way of a decision dated 9 May 2000, but he was granted Exceptional Leave to Remain in the United Kingdom until 9 May 2004.
10. No application was made to vary his leave before 9 May 2004 and the Claimant became an overstayer.
11. The Claimant applied for Indefinite Leave to Remain in the United Kingdom on 25 April 2006.
12. The Defendant refused the application by way of a decision dated 25 May 2007.
13. On the same day, the Defendant issued a notice concerning an intention to deport the Claimant.

Criminal Convictions

14. The Claimant has been subject to a number of criminal convictions. They are as follows:

16 July 1999 Southwark Crown Court	Offering to supply a Class B controlled drug, namely cannabis	Conditional Discharge
15 August 2001 Blackfriars Crown Court	Attempted Robbery	2 years' custody
30 September 2003 Sussex (Central) Magistrates' Court	Possession of a Class B controlled drug, Cannabis	Fine - £1 Costs - £34
2 April 2004 Sussex (Central) Magistrates' Court	Possession of a Class A controlled drug, MDMA	60 hour Community Order 12 Months Community Rehabilitation Order
6 September 2004 Sussex (Central) Magistrates' Court	Breach of Community Rehabilitation Order	Fine - £20 Community Order to continue.
10 January 2005 Sussex (Central) Magistrates' Court	Common Assault	80 Hours Community Punishment Order
15 February 2005 Sussex (Central) Magistrates' Court	Possession of a Class A controlled drug, MDMA Possession of a Class B controlled drug, Cannabis	12 months Community Rehabilitation Order
24 February 2006 Sussex (Central) Magistrates' Court	Possession of a Class B controlled drug, Cannabis	Conditional Discharge – 12 Months Costs - £55
19 January 2007 Sussex (Central) Magistrates' Court	Causing Intentional Harassment or Distress Breach of Conditional Discharge	12 months Community Order 12 months Supervision 100 hours unpaid work Fine - £100 Costs - £100

Deportation

15. The Defendant issued a notice concerning an intention to deport on 25 May 2007
16. The Claimant was listed as an absconder on 22 August 2008.
17. The Claimant's appeal against the intention to deport was refused by way of a determination of the Asylum and Immigration Tribunal, dated 23 January 2008.
18. The Tribunal determined, inter alia:

"56. We accept that both appellant's brother and sister are of Eritrean nationality and that both of them are citizens of the United Kingdom who live and work there…

59. We now turn to the question of the appellant's ethnicity and nationality. We remind ourselves that in the hearing we told both representatives that we accepted that the appellant is of Eritrean ethnicity. We did that because, inter alia, the appellant's brother and sister produced their Eritrean identity cards in the hearing and because they and the appellant maintain that they, their parents and their siblings are all of Eritrean ethnicity. We accept all that evidence and find that the appellant is of Eritrean ethnicity.

…

80. We also note from paragraph 4.1 of Professor Kibreab's report the following comment:

'As seen earlier, after the border war the meaning of Ethiopian citizenship has changed in the sense that all Ethiopians of Eritrean parentage were defined as foreigners and were therefore subject to expulsion. Inasmuch as the full Eritrean parentage of the appellant is not contested, he is not an Ethiopian citizen.'

Given this Professor's expertise and the fact that his evidence is on all fours with the position adopted by Mr. Hailselassie of the Ethiopian Embassy in London, the evidence before us is that the authorities of Ethiopia will not accept that the appellant is a citizen of that country."

19. The Deportation Order was signed on 28 October 2008.

Detention

20. On 28 November 2008, the Claimant was detained by police in Brighton and subsequently detained under Immigration Act 1971 powers.

Challenge to deportation

21. The Claimant challenged his proposed deportation. The challenge ran from 11 February 2010 to 5 December 2011. The chronology is as follows:-

20 March 2009	Claimant requested that the deportation order be revoked
11 February 2010	Defendant refused the application
23 June 2010	Claimant's appeal was refused by way of a decision of the First-tier Tribunal (Immigration and Asylum Chamber)
16 July 2010	An application seeking permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) from the First-tier Tribunal (Immigration and Asylum Chamber) was refused
13 August 2010	Permission to appeal direct to the Upper Tribunal (Immigration and Asylum Chamber) was refused
16 February 2011	The Claimant challenged this decision by judicial review. The application was refused by way of a paper consideration.
5 December 2011	The application for judicial review was refused following an oral permission hearing

Efforts to secure Emergency Travel Document

22. The Defendant states that the Claimant failed to engage with the documentation process on the following dates:-

30 December 2008	"Subject seen during a surgery at Oakington today. He refused to complete an Ethiopian ETD as he claims to be Eritrean but the subject states that he does not have an Eritrean ID card. He also states his father lives in South Africa where he has a work permit he claims his father has an Eritrean passport. Sub claims his brother and sister who are also in the UK have Eritrean ID cards and also GBR ppts. Father: Matwos Zerom Brother: Awet Matwos Zerom Sister: Azermar Zerom"
22 January 2009	"DO served today at 12.00 hours, duly signed on reverse. Photos taken which will be sent to caseowner, as requested, tomorrow by special delivery post. Started to complete biodata, which will be sent with photos, when subject suddenly said he wasn't doing anymore – said if we want to know more – to talk to his solicitor or to his sister. 'He ain't saying nothing.' "
9 April 2009	"Attended Legal Visits at 13.40hrs to carry out ETD i/v. Sub was immediately uncooperative and verbally offensive. Sub spoke good English and resented the presence of an interpreter. Sub refused to comply with the ETD process. Sub refused to complete any forms, refused to have his fingerprints taken and refused to allow photos to be taken. Sub states he will not be returned to Ethiopia, because he is an Eritrean national – like his parents. He states that he will fight for Eritrea against the Ethiopians."
17 April 2009	"attended DIRC legal visits …and I attempted to conduct ETD interview with the subject. The subject was immediately confrontational and verbally aggressive and swore frequently. He stated that he would not play these games and did not care if he was imprisoned or detained further as he did not care…"
13 May 2009	"Attended Legal Visits at Dirc… Firstly, sub presented a book published by 'Human Rights Watch' and asked me to read an excerpt regarding the Eritrean/Ethiopian conflict. Sub also produced several newspaper cuttings regarding the same conflict. I decline to read either and informed sub this interview was regarding him personally and his future. I informed sub that he has been invited to complete forms regarding the ETD process and that he has failed to comply on two previous occasions. Sub stated that he will not complete any forms no matter how many times we ask … I asked the sub if we wanted to pass the rest of his life in prison. Sub said he will not be sent back to a country that practices genocide…"
18 October 2010	"Went to collect the Bio Data and Passport Forms from the Subject. But he stated he will not complete them because he had been advised by his sister not to complete them and he is taking his case to the High Court."

23. The Claimant was interviewed with regard to a possible removal to Eritrea on 22 September 2009. He engaged with the process, though stating that he did not wish to be removed to the country as he did not know it and had no contacts there.
24. The Claimant stated he was willing to engage with providing details that could be forwarded to the Eritrean authorities.
25. On 22 February 2011, he confirmed to the Defendant that he was content to return to Eritrea but not to Ethiopia.
26. The Defendant has identified no steps by way of disclosure to establish that she sought an Emergency Travel Document from the Eritrean Embassy, London.

Efforts to Remove the Claimant to Ethiopia

27. The Defendant relies upon previous failed efforts to remove the Claimant to Ethiopia:

22 March 2009 [Removal cancelled 17 March 2009]	Removal directions were cancelled "because the Ethiopian Embassy has raised issues regarding the subject's nationality (Eritrean)". 17 March 2009 "…As this person has Eritrean parents, ReSCU (European Union Letter) removal. His expired Ethiopian PPT expired prior to the "independence of Eritrea" following civil war She has already been contacted by Ethiopian Embassy today, expressing concerns. She will instruct CCD [Criminal Casework Directorate] to canx RD's and look at ETD." [18 March 2009]
16 January 2011 [Removal cancelled 15 January 2011]	Removal cancelled as the Defendant had not been aware that an application for judicial review has been renewed
7 March 2011 [Removal Cancelled 5 March 2011]	Removal Cancelled as the application for judicial review was outstanding [waiting for a decision from the Supreme Court in R (on the application of Cart v The Upper Tribunal [2012] UKSC 28, [2012] 1 AC 663]
27 May 2012	Claimant removed to Ethiopia. Returned by Ethiopian authorities.
25 June 2012	Ethiopian Airlines would not accept the Claimant as presently only with an EU Letter. A valid Emergency Travel Document is required "Airline refused to carry subject of EUL and Bio they have stated they will only carry and ETD or letter from the ETH authorities. We spoke to them over the phone and they agreed to make a call to Addis Ababa to see if he would be accepted Came back to us and stated no subject would not be accepted on the document we have provided."
11 July 2012	Removal stayed pending

28. The first attempt to remove was deferred as the Ethiopian Embassy expressed concerns as to the Claimant's nationality. The Defendant did not seek an Emergency Travel Document from the Ethiopian Embassy so one attempt to remove was unsuccessful resulting in the Claimant being returned and a second attempt was unsuccessful as an Emergency Travel Document had not been secured despite the Claimant having been in detention for almost four years.
29. Two efforts to remove were deferred when the Defendant became aware that there was an outstanding judicial review application, one was stayed pending a second judicial review challenge.

Legal Framework

30. I gratefully adopt the statement of the law as set out by Mr Justice Haddon-Cave in R (on the application of Ahmed Yakoub Mesbah Belkasim) v. Secretary of State for the Home Department [2012] EWHC 3109 (Admin). At paragraphs 102-106 Mr Justice Haddon-Cave said this:

"The Law

102. The SSHD's powers to detain are contained in Schedule 3 paragraphs 2(2) and 2(3) of the Immigration Act 1971 (as amended).

Hardial Singh Principles

103. There are limitations on the SSHD's power to detain. These were originally articulated by Woolf J in Re Hardial Singh [1984] 1 WLR 704, but then usefully distilled by Dyson LJ in R (I) v SSHD [2002] EWCA Civ 888, [2003] INLR 196 [46]. Dyson LJ's distillation was approved by the SC in R (Lumba and Mighty) v Home Secretary [2011] UKSC 12, [2011] 2 WLR 671 at [22] and is as follows:

(1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

(2) The deportee may only be detained for a period that is reasonable in all the circumstances.

(3) 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.

(4) The Secretary of State should act with the reasonable diligence and expedition to effect removal.

104. The factors relevant to determining what is a "reasonable" period of detention will include (per Dyson LJ at [48]):

The length of the period of detention;

The nature of the obstacles which stand in the path of the Secretary of State preventing a deportation;

The diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles;

The conditions in which the detained person is kept;

The effect of detention on him and his family;

The risk that if he is released from detention he will abscond; and

The danger that, if released, he will commit criminal offences.

Ten further useful principles

105. The following further ten useful principles can be gleaned from other leading cases (such as R (Lumba and Mighty) v SSHD [2011] UKSC 12 and Richards LJ's judgment in R (MA) v SSHD [2010] EWCA Civ 1112):

(1) There can be a 'realistic' prospect of removal without it being possible to specify or predict the date by which the removal can reasonably be expected to occur and without any certainty that removal will occur at all (MH) at [65])

(2) The extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors ((MH)) at [65])

(3) The risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it will become a trump card (Lumba [108]-[110] and [121] citing Dyson LJ in R (I) at [53]).

(4) The weight to be given to time taken up by an appeal depends on the facts, but much more weight should be given to detention during a period when the detained person is pursing a meritorious appeal than to detention during a period when he is pursuing a hopeless one (Lumba at [121]).

(5) A detainee who will not comply with the ED process or other requirements of detention and is doing everything he can to hinder the deportation process, may reasonably be regarded as likely to abscond (Lumba at [123]; MH at [68(iii)])

(6) Refusal of voluntary return does not necessarily permit an entrance of risk of absconding (Lumba at [123]).

(7) Where return is not possible (for reasons that are extraneous to the person detained), the fact that he is not willing to return voluntarily cannot be held against him, since his refusal has no causal effect (Lumba at [127]).

(8) Where a person has issued proceedings challenging his deportation, then it is reasonable that he should remain in the UK pending determination of those proceedings and his refusal to accept an offer of voluntary return is irrelevant (Lumba at [127]).

(9) Even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the SSHD's wish to detain. If it is relevant, its relevance is limited (Lumba at [128]).

(10) There is no maximum period after which detention becomes unlawful.

106. In my view, citation of particular cases in which different periods of detention were, or were not, held to be unlawful if not particularly helpful since, in this area, cases are highly dependent on their own facts."

31. Although this authority was not cited to me during the hearing I do not think that the submissions on the law made by both counsel disagree with the principles enunciated by Mr Justice Haddon-Cave.

The Claimant's case

32. The Claimant's case relates to ten separate periods of detention which are helpfully summarised by Mr O'Callaghan at paragraph 79 of his skeleton argument which I now set out.

28 November 2008	Detention following a period of absconding. The Defendant was aware that the Claimant asserted an Eritrean ethnicity (accepted by the Asylum and Immigration Tribunal) and was aware that there may be problems in securing Ethiopian Travel Documents in such circumstances The claimant should have been placed on temporary admission with appropriate conditions.	The initial decision to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. The role of the court is supervisory and the court is required to review the decision in accordance with the Wednesbury principles.
29 November 2008 to 22 March 2009	The Defendant issued removal directions on 17 March 2009 for the Claimant's removal to Ethiopia on 22 March 2009 The Defendant has not secured an ETD and it was not reasonably foreseeable that such a document would be obtained.	Hardial Singh unreasonableness
17 March 2009	The Defendant was made aware by the Ethiopian Embassy, London, that it had issues regarding the Claimant's nationality	Hardial Singh unreasonableness
18 March 2009	The Defendant was advised that the Claimant was unsuitable for an European Union Letter removal and that the Ethiopian Embassy had raised concerns. The Defendant makes no ETD application to the Ethiopian Embassy, London and seeks to remove the Claimant in 2012 using and European Union Letter (deemed in 2012 to be unacceptable by the Ethiopian authorities)	Hardial Singh unreasonableness
15 June 2009	Defendant accepted that the Claimant's parents had been deported by the Ethiopian authorities to Eritrea in 1998. Significantly likely that the Ethiopian authorities would not recognise the son as an Ethiopian citizen	Hardial Singh unreasonableness
11 February 2010	Defendant refused to revoke the Claimant's deportation order and granted a right of appeal	Hardial Singh unreasonableness
11 February 2010 to 5 December 2011	The Defendant continued to detain the Claimant, despite the appeal process being pursued and the judicial review application being stayed pending the Supreme Court Judgement in Cart	Hardial Singh unreasonableness
5 December 2011 to 27 may 2012	The delay of some 6 months in seeking to remove the Claimant on a European Union Law Letter was unjustifiable and the failure to secure an ETD resulted in there being no reasonable likelihood of a successful removal being undertaken.	Hardial Singh unreasonableness
28 May 2012 to 25 June 2012	There was no reasonable likelihood of a successful removal being undertaken using a European Union Letter	Hardial Singh unreasonableness
25 June 2012 to 11 July 2012	Following the refusal of Ethiopian Airlines to accept the Claimant without an ETD, there was no reasonable likelihood of a successful removal being undertaken

Discussion

33. I take each period in turn

28^th November 2008

34. Mr O'Callaghan submits that the original detention was unlawful for a number of reasons. First, the Asylum and Immigration Tribunal had found as a fact that the Claimant was ethnically Eritrean and born in Ethiopia. That decision was promulgated on 23^rd January 2008. Second, the Defendant was therefore aware that the Ethiopian authorities would seek to establish the Claimant's nationality before removal. Third, the Defendant was in possession of sufficient information, including the Claimant's name, date of birth, place of birth and details of the siblings' Eritrean identity as presented at the appeal hearing to be able to contact the Ethiopian authorities in London or via the British Embassy in Addis Ababa to establish whether the Ethiopian authorities (1) considered the claimant to be an Ethiopian national and (2) whether they would accept his return.
35. Mr O'Callaghan submits that these steps could have been taken whilst placing the Claimant on temporary admission with appropriate conditions.
36. The IS.91 form produced is incomplete. The detention followed the making of a deportation order on 28^th October 2008. There is no dispute that such a deportation order was made.
37. Mr Whale points to the following factors. First, that before the date of the initial detention there were three failures to report. Second, the Claimant was subject to a deportation order. Third, he had a lengthy criminal record. Fourth, Mr Whale refers me to the evidence in existence at the time: Bundles 1/357;1/251 and 2/tab1 paragraph 55.6.2 (Enforcement Instructions Guidance).
38. Both counsel agree that the test I have to apply is that of rationality: Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223. In my judgment the claimant has not overcome this high hurdle. I place particular emphasis on the three failures to report and the extensive criminal record.

29^th November 2008 to 22^nd March 2009

39. Mr O'Callaghan relies on the fact that the Defendant had not secured an ETD and it was not reasonably foreseeable that such a document would not be obtained. However, the chronology set out above shows that there were interviews with the Claimant (a) on 30^th December 2008 when he refused to complete an Ethiopian ETD and claimed to be Eritrean but did not have an Eritrean identity card; (b) on 22^nd January 2009 the Claimant refused to complete the biodata required and refused to provide further information. In my judgment the Hardial Singh principles are not engaged.

17^th March 2009

40. Mr O'Callaghan submits that the Defendant was made aware by the Ethiopian embassy in London that it had issues regarding the Claimant's nationality. In view of what I have just set out above I again do not think that the Hardial Singh principles are involved.

18^th March 2009

41. Mr O'Callaghan submits that the Defendant was advised that the Claimant was unsuitable for a European Union Letter removal and that the Ethiopian embassy had raised concerns. He criticises the Defendant for making no ETD application to the Ethiopian embassy in London. However, he also notes that in the Detention Review of 15^th April 2009 the Defendant accepted that 'removal to Ethiopia is reliant on Mr Zerom's co-operation in completing Ethiopian ETD documentation.' In my judgment the Defendant is entitled to rely upon the Claimant's non co-operation. The Hardial Singh principles are not engaged.

15^th June 2009

42. Mr O'Callaghan submits that the Defendant had accepted that the Claimant's parents had been deported by Ethiopian authorities to Eritrea in 1998 and it was therefore likely that the Ethiopian authorities would not recognise the Claimant as an Ethiopian citizen. There is clear evidence that on 13^th May 2009 the Claimant refused to co-operate by not completing forms regarding the ETD process then and on two other separate occasions. Furthermore, he stated that he would not be sent back to Ethiopia which 'practices genocide'. The Hardial Singh principles are not engaged.

11^th February 2010

43. The Defendant refused to revoke the Claimant's deportation order and granted a right of appeal. The Claimant's judicial review application was stayed pending the Supreme Court judgment in the case of R (on the application of Cart) v Upper Tribunal [2012] 1 AC 663. Challenge to the deportation order and the delay in the judicial review proceedings cannot be laid on the Claimant's doorstop. However, I do take account of the five factors (which I will discuss later) put forward by Mr Whale as relevant in this case. They are (1) lack of co-operation (2) risk of absconding (3) risk of reoffending (4) the effect of the detention on the Claimant (5) the Claimant's conduct. In my judgment these factors taken together do not persuade me that the Hardial Singh principles are breached.

5^th December 2011 to 27^th May 2012

44. Mr O'Callaghan relies on the delay of some six months in seeking to remove the Claimant on an European Union Law letter as being unjustifiable, and the failure to secure an ETD resulted in there being no reasonable likelihood of successful removal being undertaken. Mr O'Callaghan does not set out any material in his skeleton argument nor in his oral submissions to support this. It is an argument based on the absence of action by the Defendant. However, for the five factors put forward by Mr Whale I am persuaded that there was no breach of the Hardial Singh principles.

28^th May 2012 to 25^th June 2012

45. There was an attempt at removal on the 27^th May 2012 which was aborted. The reason was given in a letter dated 10^th July 2012 was the fact that the Defendant's removals team had overlooked the fact that the Ethiopian authorities did not accept nationals returning on the weekend with such documents as European Union letters. Again, whether this be right or wrong the five factors identified by Mr Whale justified the continued detention.
46. On the 11^th July 2012 the Defendant was released on bail.

The five factors

47. Some of these have also been identified by Mr O'Callaghan and I have referred to that earlier in this judgment. I take each of the five factors in turn.

1. Lack of cooperation

48. There was a failure to cooperate with the removal process from 30th December 2008 to 18^th October 2010. I have already referred to some of them. The relevant references are core bundle 1/359 (22^nd January 2009); 1/362 (2^nd April 2009); 21/364 (17^th April 2009); 1/365 (12^th May 2009); 1/332 (25^th November 2011).

2. Risk of Absconding

49. Prior to his detention there were three failures to report: core bundle 1/431. In addition there was a breach of a Community Rehabilitation Order in September 2004. There was therefore some risk that the Claimant would abscond and it was a factor the Defendant was entitled to take into account: core bundle 1/681.

3. Risk of reoffending

50. It is only necessary to refer to the long list of offences committed by the Claimant whilst on bail and they were mostly after his custodial sentence. Furthermore there was misconduct whilst in custody and a denial of criminal activity. The Defendant's view places this as high: core bundle 1/684. She was entitled to come to the conclusion that there was a high risk of the Claimant reoffending.

4. Effect of detention on the Claimant

51. Mr O'Callaghan has not submitted that the continued period of detention has had a detrimental effect on the Claimant.

Defendant's conduct

52. There had been a large number of detention reviews supplemented by the Monthly Review statements supplied to the Claimant. There was no criticism about the detention conditions. Finally, the Defendant was entitled to take account of the Claimant's attitude to deportation to Eritrea and Ethiopia. Thus on the 16^th September 2009: core bundle 1/368, the Claimant stated that he did not wish to return to Eritrea. On 22^nd February 2011: core bundle 1/376, he stated that he did not want to return to Ethiopia but would return to Eritrea. On 18^th June 2012: core bundle 1/414 he was now prepared to return to Ethiopia. I accept Mr Whale's submission that the Claimant's changing views affected the approach of the Defendant to the Eritrean embassy in London or the British embassy in Addis Ababa. She was entitled to take the Claimant's views into account.

Conclusion

53. For these reasons I am not satisfied that the Defendant has breached either the Wednesbury principle or the Hardial Singh principles and I find that the detention of the Claimant was lawful. It follows that the claim is dismissed.