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
		28/07/2015

His Honour Judge Clive Heaton QC:

1. This is a Judgment following a substantive judicial review hearing. The Claimant is an illegal entrant and failed asylum seeker in respect of whom the Defendant has made a Deportation Order following his release from a period of custody in respect of a serious criminal offence. The Claimant was detained at the conclusion of the custodial period and has now been in immigration detention for approximately 18 months. He challenges the lawfulness of that detention both now and in the past on Hardial Singh principles limbs 2, 3 and 4, and seeks relief including damages, having been given permission to proceed at an oral renewal hearing by Mr Nicholas Lavender QC.
2. The Claimant has been represented by Victoria Laughton and the Defendant by Julie Anderson.

The essential background

3. On the 13^th April 2013 the Claimant was arrested on suspicion of attempted rape and illegal entry to the UK. The circumstances of the offence were that on the 12^th April 2013 at approximately 03.00 he engaged a young woman in conversation in the street in London. She had gotten out of a taxi and was making her way to her boyfriend's home. He then pulled her toward a café. In the café he was aggressive towards her, pushing her and man-handling her. She was trying to push the Claimant away. He was kissing her and at one point bit her lip. The young woman described the Claimant's actions as rough and painful. The Claimant then attempted to digitally penetrate her vagina but her clothing prevented that. The young woman described herself as petrified that she was going to be raped.
4. The young woman escaped from the Claimant and went to her boyfriend's home nearby from where she telephoned the police.
5. After arrest the Claimant was remanded to HMP Wandsworth where it is said that he made 4 suicide attempts between the 29^th May and the 18^th June 2013.
6. The Claimant eventually pleaded guilty to an attempt to assault by digital penetration on the 16^th October 2013 and was sentenced to 18 months' imprisonment. He was required to sign the Sex Offenders Register for 10 years.
7. This was clearly a very serious and frightening sexual offence, committed against a young woman, while she was on her own in the street, by a man unknown to her and who had been in the country in all probability less than a fortnight.
8. On arrest the Claimant was served with a notice to an illegal entrant. The Claimant is believed to have arrived in the UK at the beginning of April 2013 but there is no record of his entry. He says he entered unlawfully and that assertion is accepted by the Defendant. He said he was Syrian and claimed asylum.
9. On the 3^rd June 2013 an asylum interview took place. The Defendant says that the Claimant was asked simple questions about Syria but he was unable to answer them. On the 17^th July 2013 the Claimant underwent a language analysis in an attempt to establish his true identity. On the 22^nd July 2013 the Defendant received the conclusions of that interview which were that it was very unlikely that the Claimant was from Syria as he asserted, but there was a very high degree of certainty that he was from Egypt.
10. On the 19^th September 2013 the Claimant's asylum claim was refused. The Defendant rejected his assertion that he was from Syria finding he was probably from Egypt. That decision was served on the 30^th September 2013.
11. The Claimant provided bio data information for a second time on the 4^th November 2013.
12. On the 20^th November 2013 the Claimant was served with a notification of liability to deportation, with an attached questionnaire. He completed and returned the questionnaire saying he could not be returned to Syria as to do so would breach the UK's obligations under the Refugee Convention.
13. In a letter dated the 23^rd December 2013 the Defendant informed the Claimant that she intended to detain him at the conclusion of the custodial part of his criminal sentence in order to effect his removal from the UK. The Claimant competed the custodial part of his criminal sentence on the 13^th January 2014 and was immediately detained under s. 36(1) UK Borders Act 2007 pending a decision whether to deport him.
14. On the 7th February 2014 the Claimant's detention was reviewed. The barriers to removal were noted to be: ascertaining his real identity, nationality, and serving the deportation order and letter upon him. It was suggested that he could be removed within a reasonable timescale. He was assessed as a high risk of re-offending and harm to the public by the Defendant. He was also assessed as a high risk of absconding as he was aware the Defendant was seeking to deport him and had no family in the UK.
15. A further detention review took place on the 7^th March 2014. The estimated date for resolution of the barriers to deportation was said to be within 6 months.
16. A week later on the 14^th March 2014 the Claimant was re-interviewed. He was given an opportunity to comment on the results of the language analysis. The Claimant did not comment, save that he maintained his Syrian nationality. The Claimant completed another bio data form.
17. At a Detention review on the 7^th April 2014 the reviewing officer observed that removal was not imminent, but could still be achieved in a reasonable period.
18. On the 16^th or 22^nd April 2014 the Claimant was again interviewed by the Defendant. He maintained that he was Syrian. He said that he could not obtain any further corroborative evidence of his nationality due to the war in Syria. He said he wanted to go home. The interviewing officer said that without a valid travel document removals to Syria were (at that time) impossible, as were removals to Syria without identification. A further bio data form was completed.
19. At a detention review on the 1^st May 2014 it was suggested that checks might be made with European immigration and Interpol.
20. On the 27^th May 2014 the Claimant signed a disclaimer stating that he was willing to return to Syria by way of the Facilitated Returns Scheme ("FRS"). The Claimant withdrew that disclaimer on the 3^rd June 2014.
21. At a Detention review on the 28^th May 2014, it was accepted that the Claimant had complied with Home Office requirements in that he had co-operated with his Emergency Travel Document ("ETD") interview and process, and had signed up to the FRS.
22. In June 2014 the Claimant made an application for a s.4 bail address. An address in Middlesbrough was provided in July but was rejected as unsuitable by the Probation Service in September 2014. Probation in an email described the Claimant as posing a high risk of serious harm.
23. On the 24^th June 2014 the Claimant's case holder attended a relevant specialist team surgery. That team said that it would conduct further investigations in respect of the Claimant. That information was given to the Detention review on the 27^th June 2014. The following Detention review on the 25^th July 2014 stated that the team had concluded its investigations but conclusive results had not been received.
24. On the 21^st August 2014 the Probation Service apparently (this report was not disclosed) provided a report that assessed the Claimant as presenting a high risk of serious harm to the UK public, especially lone females, and a medium risk of reoffending due to having no community ties, no UK support networks and not having a good grasp of English.
25. In a Detention review on the 19^th September 2014, an email had been received from the Claimant's offender manager in which the Claimant was assessed as a low risk of reoffending if released.
26. On the 17^th October 2014 the Claimant was served with a Deportation Order and a decision to deport. His Human Rights claim was certified under s.94 of the Nationality, Immigration and Asylum Act 2002. His asylum claim was not certified. The decision letter incorrectly told the Claimant that he only had an out of country appeal in respect of these decisions. On that same day there is a minute of a decision to detain under paragraph 2, schedule 3, of the Immigration Act 1971.
27. On the 30^th October 2014, it was confirmed to the Claimant that for so long as he insisted on being a Syrian national it was not possible to make an application for an ETD to travel to Egypt.
28. On the 4^th November 2014, a request was made to check the Claimant's fingerprints in Egypt. A week later the Defendant was told that such a check was not possible in Egypt.
29. The Claimant lodged an appeal with the First Tier Tribunal ("FTT") against the making of the deportation order on the 5^th November 2014. The FTT decided to allow that appeal to proceed.
30. At a Detention review on the 15^th December 2014, it was recorded that checks were to be carried out on the Claimant's telephone and visitor records.
31. On the 17^th December 2014, the Defendant attended a CSIT surgery and was advised to visit addresses where the Claimant had been working in the UK to see if any records of identity and nationality had been produced, and also to hold a further interview with the Claimant.
32. In a Detention review dated the 9^th January 2015 it was stated that the recommendations of the CSIT were being "looked into". In the Detention review the following month the Defendant was advised to: get up to date visitor records; investigate some telephone numbers; visit where the Claimant had previously worked; and see if the Claimant could be re interviewed.
33. In the Detention review dated the 2^nd April 2015 it was recorded that an unspecified intelligence response had been received from French and Belgian authorities.
34. On the 17^th April 2015 the Claimant was re interviewed about his nationality. It was suggested to the Claimant that he had claimed to be a Palestinian national when encountered in France.
35. In a Detention review on the 29^th April 2015, it was recorded that investigations would be extended to France and Spain. It noted a negative response from Egypt. The Claimant was informed the following day that he was not believed to be Syrian and that he may be subject to prosecution under s.35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 ("the 2004 Act"). He was given contact details for the Syrian Embassy.
36. On the 10^th May 2015 a linguistic report from the de Taal Studio assessed the Claimant as unlikely to come from Syria and pointed to an Egyptian origin.
37. On the 28th May 2015 there was a further Detention review. The estimated period for resolution was said to be 6 months.
38. On the 1st June 2015 a telephone call was facilitated between the Claimant and the British Embassy in Cairo.
39. The FTT hearing against the decision to deport took place on the 15^th June 2015. The appeal was refused.

The forensic history

40. On the 16^th October 2014, the Claimant's representatives sent a pre-action protocol letter to the Defendant challenging the on going delay and detention. In that letter the Claimant said that he would be prepared to attend interviews with the Egyptian authorities to disprove he is an Egyptian national.
41. On the 30^th October 2014 the Defendant replied to the Claimant's pre-action protocol letter. The letter maintained the detention of the Claimant. The Defendant confirmed in that letter that the information the Claimant had provided could not be verified by the Syrian authorities as a consequence of the on going conflict there. The Defendant, it was said, could not therefore gauge if the information provided by the Claimant was honest and truthful.
42. The Defendant confirmed that there was no future prospect of the Syrian Embassy opening in the near future, so neither the Claimant nor the Defendant could communicate with it.
43. As to Egypt, the Egyptian Embassy would only speak to the Claimant if the bio data indicated he came from Egypt. Therefore the Claimant could not be interviewed by that embassy either.
44. The application for Judicial Review was issued on the 7^th November 2014.
45. The Defendant lodged an Acknowledgement of Service and Summary Grounds of Defence on the 4^th December 2014. The Claimant served a reply to the Summary Grounds of Defence.
46. Permission was refused on the papers by Elisabeth Laing J on 11 February 2015. Although permission was refused on all grounds the Judge observed that if the then current impasse continued, a point would be reached where removal in a reasonable time would not be possible in all the circumstances of the case.
47. On the 24^th March 2015, permission to proceed was given at an oral renewal hearing by Mr Nicholas Lavender QC.

Core legal principles

48. I do not propose to deal with all the matters of law to which I have been referred in this discrete part of my judgment. It will, however, be helpful to set out shortly some of the uncontroversial core principles at the outset.
49. There is no issue here that the Defendant had power to detain the Claimant following the expiry of the custodial part of his sentence (see ss.32, 33 and 36 UK Borders Act 2007 and para. 2(2) and (3) to Schedule 3 Immigration Act 1971 (IA)).
50. Where a person is so detained it is for the Defendant to show that the detention is lawful (Lumba). Given that the liberty of the subject is engaged, the burden is a heavy one (Khawaja).
51. When conducting its review the Court was entitled to assess the reasonableness of the detention objectively for itself. I approach this principle in a slightly more fleshed out form below (Khawaja).
52. 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).
53. However, there is a dividing line between administrative failing and unreasonableness amounting to illegality. Again, I will approach this principle below (Krasniqi).
54. It is well settled that the power of immigration detention is subject to the limitations and controls found in the Hardial 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, she should not seek to exercise the power of detention;

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

55. In respect of "a reasonable period" in an analysis subsequently approved in Lumba, Dyson LJ (as he then was) said 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."

56. 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."

57. 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.

The Claimant's case

58. The Claimant's case is rooted in the Hardial Singh principles. It is argued that the detention of the Claimant is unlawful because:

i) There is no prospect of removal within a reasonable period of time;

ii) The Defendant has failed to act with reasonable diligence and expedition;

iii) Detention has now become unreasonable.

No realistic prospect of removal within a reasonable period of time (HS limb 3)

59. The Claimant argues that there are two limbs to this test. The first it is said is whether there is a realistic or sufficient prospect of removal. This, it is said, must be more than a remote or unrealistic possibility. The second limb, it is argued, is that the prospective removal will take place within a reasonable period of time having regard to the time that the Claimant has already been detained.
60. The Claimant drew the Court's attention to the authority of ZA (Iraq) [2015] EWCA Civ 168. From that authority Counsel drew 3 principles. Firstly, that when looking at the reasonable period in this context the Court must have regard for the time already spent in detention. Secondly, it was also submitted that it was important for this Court to have in mind, given the facts of this case, that in ZA (Iraq) the first instance Judge was found to have erred in coming to the conclusion that the detained person may change his stance and co-operate when there was no evidence that he may do so. Finally, the Court should be cautious not to invert the true test.
61. The Claimant argues that the impasse identified by Elisabeth Laing J at the written permission stage still persists and it is argued that there is no longer any realistic prospect that the Claimant will be removed within a reasonable period. The Claimant submits that in reality this point was reached some time ago.
62. The ongoing conflict over nationality, it is argued, has the practical consequence that the Claimant "is non removable", as Counsel puts it. In aid of that proposition the Claimant points to:

i) The Claimant says he is Syrian and the Defendant has accepted removals to Syria are impossible without identification;

ii) The Defendant has confirmed that due to the inability to engage with the Syrian authorities there is no way for the Defendant to gauge if the Claimant is truthful and honest;

iii) It is therefore clear removal to Syria is not possible;

iv) The Egyptian authorities will only interview the Claimant if his bio data states that he is from Egypt, which it does not. Other routes of enquiry which have been attempted in respect of Egypt have been unable to reach conclusions either way;

v) Thus removal to Egypt is equally not possible either.

63. Against that background, the Claimant's case is that while the Defendant does not have to pinpoint when removal will take place, there must be a sufficient prospect that removal will take place within a reasonable period. It is argued that the Defendant cannot demonstrate this. Thus, it is argued that the Claimant cannot be detained for a removal that "simply is not going to happen".
64. The Claimant goes on to meet the deliberate obstruction point. Here it is suggested that by his dishonesty the Claimant is obstructing his own removal. The Claimant argues that while an individual who by his obstruction of the process finds his detention is prolonged has only himself to blame, there is no rule that such obstruction justifies detention indefinitely. Indeed, it argued that such authority as there is on the matter points the other way (NAB [2010] EWHC 3137 (Admin) is cited as an example).
65. In oral submissions, Counsel accepted that there was plenty of evidence that the Claimant was not Syrian. Indeed, on the day of the hearing, the Court was handed the FTT decision where findings were made that the Claimant was probably not Syrian and probably was Egyptian. Counsel stressed, however, that there were "many" cases where there had been such obstruction but the Courts had gone on to find that the period of detention was not reasonable.
66. Counsel drew the Courts attention to three authorities on the point. In Lumba [2012] 1AC 245, Lord Dyson rejected an exclusionary rule, and emphasised that the general principle was that it was up to the Court to decide whether the period in question was reasonable in all the circumstances of the case.
67. In Francis [2015] 1 WLR 567 a period of detention was found to be unlawful where the detained person had been completely obstructive of his return to Jamaica. Counsel drew the Court's attention to paragraph 47 of that authority where the Court made it clear that the purpose of detention was to remove and where that was no longer capable of being achieved, then detention ceased to be lawful. Finally, Counsel took me to Sino, a decision of Mr John Howell QC of the 28^th August 2011. Here at paragraph 58 the Judge's reasoning is that where there is obstruction the reasonable period may be longer. Yet even where a detained person's conduct may not generate sympathy, obstruction cannot be a trump card justifying indefinite detention. Counsel then took the Court to paragraphs 198-9 of that authority for the proposition that detention can be unlawful from the very outset if there was never a prospect of the detained person being removed.
68. In connection with obstruction, the Claimant has chosen not to prosecute the Defendant under s.35 of the 2004 Act.
69. The Claimant turns then to the point made by the Defendant, that Claimants can and do frequently change their minds as to removal. The Claimant points out that while he may have vacillated at one time as to whether he would return to Syria, he has always maintained that he is Syrian and that he is not Egyptian.
70. The point was developed in oral submissions. It was submitted that there was no evidence that the Claimant would change his mind, and so this is, as it was put, a classic ZA (Iraq) situation.
71. The Claimant draws attention to his appeal to the FTT. The appeal was not a barrier to removal here as the Claimant could not be removed in any event.
72. In oral submissions, Counsel went on to draw the Court's attention to the Detention reviews, and the lack of progress as she would have it. The actions needed in the first reviews are identical to those needed in the recent reviews. A period of 6 months for removal is consistently cited, which is, and always was, wholly unrealistic Counsel says.
73. In summary of his argument on this head, the Claimant argues that there is no prospect that he will be removed within a reasonable period of time. The Claimant has been in detention for 18 months, the case is no further forward now than then, and the Defendant cannot point to anything which might bring about a change in position.
74. The Claimant identifies the following dates when it was or should have been apparent that there was no prospect of removal:

i) 16^th April 2014 when the Defendant accepts removals to Syria are not possible;

ii) 30^th October 2014 when the Defendant confirmed that there was no prospect of engaging with the Syrian authorities and no possibility of interview by Egypt;

iii) A date determined by the Court.

The Defendant has failed to act with reasonable diligence and expedition (HS limb 4)

75. In her oral submissions, Counsel took the Court initially to paragraph 60 of JS(Sudan) [2013] EWCA Civ 1378. Here, the Court was concerned with a lack of evidence explaining an apparent delay in the Defendant making progress with the case. The Court made the point that it would have expected evidence to have been filed to explain the delay. Counsel's point of course is that in this case the Defendant has filed no evidence by way of witness statement at all. Thus she says not only is delay unexplained, but the Court could draw inferences against the Defendant if it finds that is appropriate.
76. The Claimant, in his skeleton argument, identifies the following delays:

i) The deportation decision should have been served on the Claimant immediately or, at the most, after very short consideration. It was not served until 17^th October 2014, over 10 months after the Claimant was placed in immigration detention. It is argued that following JS(Sudan), this period of detention was unreasonable and unlawful. It is further contended that this not only entitles the Claimant to damages in respect of the period for which he was unlawfully detained, but also renders his continuing detention unlawful;

ii) Once the Claimant had indicated that he was not interested in FRS the Defendant delayed for 4 months in serving the Deportation order;

iii) The Defendant has failed to exercise any diligence in relation to attempts to progress the removal of the Claimant. The entire period, it is argued, has been marked by an almost total lack of activity. The Claimant argues that "It is clear that [the Defendant] has effectively done nothing to progress [the Claimant's] case, other than eventually serving the deportation decision". It is further argued that "the lack of diligence is so stark in this case that it rendered the detention unlawful before the decision to deport had even been made";

iv) The past lack of diligence is relevant to an overall assessment of the reasonableness of the ongoing detention;

v) The defendant, it is argued, continues to display a lack of diligence to progress the future removal of the Claimant;

vi) While it might be argued that there is no more that the Defendant can do, that strengthens the Claimant's argument under limb iii;

vii) Finally, even if such lack of diligence were not enough on its own to render detention unlawful, combined with other factors, the detention was unlawful.

77. Counsel made the point in oral submissions that the Defendant's eventual decision to deport relied entirely on the Defendant's own earlier decision, there had been no further information to review, and thus the delay could not be justified on any view. In any event, it was for the Defendant to explain its delay, and the Defendant had failed to do so.
78. Counsel went on in oral submissions to examine two of the steps said to have been taken by the Defendant as examples of lack of due diligence. It is suggested that late in the day the Defendant went to check with the Claimant's employer at the time of arrest to see if he\she had any useful information. Not only was that a step that could have been taken long before, Counsel said, but there was no evidence it had been followed up. A similar complaint could be made about the suggestion that the Claimant's telephone records be checked, she said.
79. Counsel concluded her oral submissions on this Ground by arguing that even if the Court was against her on this head, in itself the following the principles in R(I), taking these matters together with the matters I shall come to below on Hardial Singh limb ii, then her case for lack of reasonableness is made out.

Detention is no longer reasonable in all of the circumstances (HS limb 2)

80. The Claimant's case here is that his detention has now become excessive and unreasonable on the basis of the known facts. Looking at the Hardial Singh\R(I) principles, the Claimant puts his case as follows.

Length of period of detention

81. The Claimant has now been in immigration detention for 18 months. Over 10 months was spent waiting for the Defendant to make and serve a decision to deport. This is an extremely lengthy period of time, it is argued, and strong countervailing reasons would be needed to justify the detention.

Obstacles to deportation

82. The Claimant cannot currently be removed to Syria or any other country and there is no reasonable prospect of that changing in the foreseeable future.

Diligence, speed and effectiveness of steps taken by the Defendant

83. The Claimant effectively repeats his argument above on the issue.

Effect of detention on the Claimant

84. The Claimant has made 4 suicide attempts, one requiring hospitalisation. It is recognised that these self harming actions took place while the Claimant was in criminal custody, rather than immigration detention.

Risk of absconding

85. The Claimant concedes that there may be some risk of absconding here. It is argued that it is small and should not be overstated. Any suggestion that he would not abide by his conditions of release are speculative, it is argued. The point is made that a risk of absconding is not a trump card. Finally, it is suggested that the Claimant could be subject to stringent bail conditions including tagging, reporting, and curfew.

Danger of committing criminal offences

86. The Claimant argues that there is limited evidence here relating to any risk on release. The Claimant's past criminal offending cannot be of itself a justification for extending his time in immigration detention. There has been more than one assessment of the risk the Claimant poses of reoffending, he points out. There is a Probation Assessment that he poses a high risk of serious harm. There is an assessment from the Claimant's offender manager that the Claimant presents a low risk of reoffending. In addition, the Claimant will be on the Sex Offenders Register as a consequence of his conviction.
87. The Claimant submits there is an obligation on the Defendant and the Court to consider whether there are conditions of release which would provide a proportionate measure of security against such risks. He argues that that the risk of absconding here (and the risk of reoffending) can be managed with stringent bail conditions.
88. In her oral submissions Counsel naturally concentrated on the risk of reoffending combined with the risk of absconding. The first point made quite rightly was that these are but two of the matters the Court must have in mind when deciding how to exercise its discretion.
89. As to absconding, Counsel accepted that one of the difficulties here is that the Claimant was only in this country for a short time (perhaps a matter of days) before he was arrested, and he has been in custody or detention ever since. Assessment of the risk is therefore difficult. She pointed out that he has been assessed as a low to medium risk of absconding. It was submitted that the risk of his absconding could be managed by an appropriate selection from the menu of bail conditions that could be imposed.
90. As to re-offending, the Defendant had initially assessed him as a high risk when there was no professional assessment. The assessment of September 2014 found him to be a low risk of re-offending but a high risk of harm to the public. This led to a helpful interaction between Counsel and the Court as to how these matters relate one to the other. Counsel readily accepted that in risk assessment one looked both at the likelihood of the event occurring and the level of harm if it did. So, one might accept a high risk of something relatively trivial occurring, but little risk of something very serious. Again, counsel suggested bail conditions could meet any perceived risk here, and pointed out as part of the constellation of protective measures that the Claimant would be on the Sex Offenders Register as well.

The Defendant's response

91. The Defendant begins her written argument by taking the Court through the relevant statutory provisions to justify detention. Counsel made the point in oral submissions that Parliament had taken the step of requiring foreign criminals to be deported and had removed ministerial discretion in respect of such decisions. It is central, Counsel argued, that the Court had in mind the importance that Parliament attached to the deportation of foreign criminals.
92. Turning to the Hardial Singh guidelines, Counsel reminds the Court that the Court is not engaged in a Wednesbury type review of the decision of the Defendant. Rather it should make up its own mind on the issues put before it. This is therefore not an appeal jurisdiction but rather a review of the reasonableness of detention applying general administrative law principles on a Wednesbury basis. That proposition was uncontroversial before me and the Court accepts that is the approach it should take.
93. Counsel then turned to the principles she argues can be derived from Hardial Singh and subsequent authority.

The inability to remove before the expiry of the reasonable period limb ii

94. Turning to limb iii Counsel submits that the principle must not be interpreted in such a way as to cut across the statutory power and the context and terms used in Hardial Singh. It is submitted that this limb only applies where the Court finds it is still within the reasonable period, but a situation has been reached where it is clear that there is no prospect of effecting deportation within that reasonable period. Counsel emphasises that it is not enough to say that the prospects of removal are uncertain or low. In written submissions Counsel relies on Muqtaar, in particular the point at (iii) in paragraph 36 of that judgment.
95. Turning to the application of those principles to the facts of this case, Counsel argues that the risk of absconding and reoffending is of paramount importance. Here it is argued that the risk of absconding is high, as assessed by professionals. The weight of the evidence, including the findings of fact of the FTT, establishes that the Claimant is deliberately seeking to obstruct removal by Claiming to be a Syrian national when he is not. The Claimant's disregard of UK immigration controls and the English criminal law are also indicators that the risk of his absconding is high, Counsel says. A selection from the menu of bail conditions available would not be adequate to manage this risk, Counsel argues.
96. Counsel goes on to argue that the high risk of the Claimant absconding has the effect of extending the reasonable period. Equally, where there is obstruction, while that does not justify indefinite detention, that will also have the effect of extending the reasonable period. Detention here remains well within the reasonable period, it is argued.
97. It is submitted that the Claimant has failed to meet the demanding requirements of limb iii. It is submitted that the Claimant cannot rely on his own self-created stance to show an impossibility of removal rather than obstruction which could cease at any time.
98. It is said that even the most consistent resisters to deportation can change their minds. That may be when a detained person's appeal rights are exhausted, or where personal circumstances in the home country change such that the detained person wishes to return.

Due diligence

99. Looking at limb iv, due diligence, Counsel argues that in considering this limb the Court is not seized of what is described by Counsel as the impossible burden of assessing the many operational tasks necessary and whether those have been dealt with efficiently. Counsel submits that the proper approach, following Krasniqi, is that there is a dividing line between maladministration and unreasonableness amounting to illegality. Even if that line is crossed it is necessary for the Claimant to show that there is a specific period in respect of which, but for that illegality, he would not have been detained.
100. Turning to the facts, Counsel argues that there is no unexplained extended period of complete inactivity here that could constitute illegality; to the contrary it is submitted the Claimant's case has been carefully considered at each step. Counsel makes the point that in JS(Sudan), the Court specifically said that a deportation decision was important and the Defendant had the right to take time to consider it. Here, the Claimant's suggestion that the deportation decision should have been made quickly cuts across that principle.

Detention for a period reasonable in the all the circumstances limb ii

101. Looking at the legal principles to be applied Counsel makes the following points in respect of limb ii:

i) In respect of assessment of the reasonable period (limb ii), the Court must assess whether the reasonable period allowed for operating the machinery of removal is exceeded by the period of detention. This exercise is fact specific;

ii) The risk of re-offending is of paramount importance (Lumba, R(A));

iii) There is a link between absconding and re-offending. A person may be more likely to offend if cut off from support and a person who reoffends may be more likely to abscond;

iv) The risk of re-offending is to be assessed by reference to both the likelihood of it occurring and the gravity of the harm that would ensue (R(A));

v) The correct test is whether there is some prospect or a sufficient prospect of removal. The Defendant is not required to identify a date by which removal will have taken place (R(MH), Muqtaar);

vi) Hindsight has no place in deciding unlawful detention Claims. The fact that matters may not turn out to be as they were reasonably considered to be at the time of a decision does not render that decision retrospectively unlawful (Shehadeh).

102. In application of the principles, Counsel argues that the high risk of re-offending is relevant here. It is suggested that there are reasonable grounds for believing that the Claimant would not attend at an airport for deportation if invited to do so.
103. The Claimant's personal circumstances are emphasised:

i) The Claimant entered the UK circumventing immigration controls;

ii) He Claimed asylum not at the earliest opportunity, rather he did so when arrested;

iii) He has no family in the UK;

iv) He has no ties in the community;

v) He is a convicted criminal here in the UK;

vi) There are reasonable grounds to consider that he is failing to co-operate with the machinery of removal;

vii) There is a risk of re-offending allied to a risk of absconding.

104. Again, it is argued, bail conditions could not manage the risk he poses
105. The Defendant is entitled to make her own risk assessment of re-offending for immigration and detention purposes, it is argued. Such an assessment will, it is submitted, build in the risk of absconding of an individual who is outside the usual control mechanisms that may assist in mitigating the risk
106. Given the substantial risk of reoffending and absconding, there is a substantial reasonable period for the purposes of the second Hardial Singh limb, it is argued.
107. Counsel in oral submissions raised the issue of the Claimant's failure to submit to voluntary removal. She pointed out that in Lumba (paragraph 123) the Court indicated that a failure to submit to voluntary removal can be relevant dependent on the facts of the case, and can render lawful a detention, which would otherwise not be so.

Discussion

108. It has been said more than once in this hearing by both advocates that the Claimant presents an unattractive case here. That is undoubtedly right. However, these cases are not decided on the basis of the Court's like or dislike of a Claimant's case, neither is immigration detention to be used as some form of second punishment for a criminal offence. These cases are decided on the basis of what is now well established law. That will mean that on occasion these Courts will come to decisions that the wider public will neither agree with nor understand, but the Court must put all of that out of its mind and concentrate on the forensic argument.

Due Diligence

109. I turn firstly to the suggestion that the Defendant has acted without due diligence. I reject that submission. These are my reasons.
110. It is argued that if one steps back and looks at the picture as a whole the Defendant has done little or nothing while the Claimant has been in detention. In my judgment, faced with a difficult situation created by the obstruction of the machinery of removal by the Claimant, the Defendant has taken a series of steps to try to make progress. They have not succeeded to date, but to find illegality as a result of that lack of success would be to fall into the trap of applying hindsight.
111. Consideration of the chronology here demonstrates that the Defendant has applied herself to the Claimant's case on a consistent basis. There are no significant periods of inactivity.
112. The Claimant says that the Defendant acted without due diligence in delaying, as he would have it, the Deportation decision for around 10 months from November 2013 to October 2014. I do not accept that taking this period to issue the deportation decision amounts to illegality. As is said in JS(Sudan), the decision to deport is an important one, and the Defendant is entitled to take her time to think about it. Moreover there were other steps taken in the period Counsel has identified, amongst them the Claimant was interviewed twice, and at one point he signed a disclaimer saying he would willingly return to Syria.
113. Looking at the situation overall, in my judgment it would be hard to come to the view that there had been even maladministration here, and there is certainly no illegality.

The reasonable period of detention

114. I turn then to Hardial Singh limbs ii and iii. While I have all the circumstances of the case in mind here in my judgment there are four magnetic factors around which this case turns on both limbs:

i) The Claimant committed a serious sexual offence probably within days of arriving in the UK;

ii) He has now spent 18 months in immigration detention;

iii) The Claimant is in all probability, and on the finding of the FFT Judge, obstructing his removal by maintaining he is Syrian when he is not and denying that he is Egyptian when he is;

iv) The consequence of his maintaining that position is that on the one hand he cannot be deported to Syria because he is not Syrian and so not entitled to travel documents to go there, and on the other he cannot be removed to Egypt as the Egyptian authorities will not at present interview him as he denies he is Egyptian.

115. Looking at each of those matters and examining the implications of them, I begin with the Claimant's detention for 18 months.
116. I accept the Claimant's submission that when looking at the reasonable period, and at what might be reasonable in the future, the time already spent in detention is a key consideration.
117. The liberty of the subject is a fundamental principle in a democratic and pluralist society. There can be no doubt that a period of 18 months, in what amounts to administrative detention, demands careful scrutiny and is in my judgment a matter of considerable significance here.
118. I turn now to the prospects for removal of the Claimant. The conclusions I have reached in respect of due diligence of course strengthen the Claimant's case here. The Defendant has not failed to remove the Claimant through lack of diligence, but because it is difficult to do so.
119. Counsel argues that I cannot assume that the Claimant will just change his mind without any evidence to that effect. I accept that submission. Certain it is that the Claimant, while he may have hesitated as to whether he would go to Syria voluntarily, has always maintained he is Syrian and not Egyptian.
120. Equally, while the Defendant has been very careful to emphasise that she does not argue for indefinite detention, there were times in her submissions on this topic where there was the sense of waiting for something to turn up.
121. Where the Court ultimately departs from the Claimant's case in respect of this issue is in its presentation of the situation as impasse, or as a static position. In my judgment, it is not.
122. By way of example, there have been two important developments, as recently as June 2015, in that the FTT has both made findings of fact that it is unlikely that the Claimant is Syrian and likely that he is Egyptian on the one hand and has dismissed his appeal on the other. In my judgment, the Defendant is right in identifying these developments as matters which may move matters on, and therefore she is entitled, in my judgment, to have the opportunity to investigate what the implications of these developments are, both with the Claimant and more widely.
123. So the picture is not static at present.
124. Turning then to the sexual offence committed by the Claimant. This was a serious and frightening sexual offence. In my judgment the risk of re-offending cannot be said to be low. This Claimant committed this offence very shortly after his arrival in the UK. As Counsel for the Defendant has argued, he has shown little respect for the law here by his: criminal offending; unlawful entry to the UK; failure to present himself as an asylum seeker; and obstruction of his lawful removal. In my judgment, this Claimant presents at least a medium risk of re-offending.
125. As to the gravity of the risk he poses if he were to re-offend, that is high. He was so assessed professionally. The circumstances of the offence speak for themselves. The victim was petrified, and understandably so.
126. As to the management of that risk, there could be a curfew; this offence occurred at about 03.00 and so that might meet that part of the risk. However, save for that, it is difficult to see which bail conditions might meet that risk. Moreover, there has to be a concern as to whether bail conditions would be respected given the Claimant's approach to the law here in the UK outlined above.
127. As to the associated risk of absconding, again it seems to me that the risks are high. The Claimant has no family here and no community ties. There is a risk of re-offending and if he does so there must be an enhanced risk that he will abscond so as to avoid the authorities.
128. Can that risk be managed by bail conditions? In my judgment there could be reporting restrictions, curfew and tagging, which would make it easier to keep a track of the Claimant, although they would by no means guarantee that he would not abscond.
129. In my judgment, here it is the combination of the risk of reoffending, the gravity of that re-offending and the risk of absconding which significantly extends the reasonable period for immigration detention for this Claimant.
130. I turn now to the issue of obstruction. It is well established that obstruction can lead to an extension of the reasonable period. I am entirely satisfied that it should do so here, and for a significant period. There are more than reasonable grounds here for believing that the Claimant is simply obstructing his removal by his position and it is entirely reasonable therefore to extend the reasonable period as a consequence.
131. Finally, on this topic, I accept the Defendant's submission that the Claimant's failure to engage in voluntary return can also act to extend the reasonable period. However, given my conclusions above as to the offence and obstruction, I not think that in this case the lack of co-operation with voluntary return would make the reasonable period still longer.

Conclusions as to the reasonable period

132. Turning then to the Grounds and that ground founded in Hardial Singh limb ii. On looking at all the circumstances of the case, and in particular those matters I have addressed above, I find that there is a sufficient or realistic prospect of removal. The period in which the Claimant has been detained to date is, in my judgment, within the reasonable period. I thus dismiss the claim in respect of limb ii.
133. Turning to limb iii, I have concluded above that this case is within the reasonable period and so that part of the limb is satisfied. However, again for the reasons I have described above, I do not conclude that there is no realistic prospect of removal before the expiry of the reasonable period. I therefore dismiss that part of the claim relating to limb iii.

Postscript

134. On considering this claim on paper at the permission stage Elisabeth Laing J effectively refused permission on the basis that this claim was premature. Some months further on I too have reached the conclusion that this claim is premature.
135. However, a time may come fairly soon, once the Defendant has had an opportunity in particular to act upon the decision of the FTT, and dependent upon where that takes the case, where the position will have a far greater appearance of solidity. If at that point the Defendant continued to oppose the release of the Claimant, this Court would expect to see in evidence a carefully crafted plan from the Defendant addressing the difficulties in this case and setting out what action she intended to take so as to justify continued detention.
136. It was suggested to me by the Defendant that the Court might indicate a period within which these matters should be resolved, as assistance to her. I certainly take the view that the Defendant needs no more than 6 months at the outside to deal with its further enquiries following the FTT decision. Of course, I cannot say whether what emerges from those enquiries might of itself extend the reasonable period still further. There may be an unanticipated event having the same effect. Therefore, that is the best I can do.

Costs

137. As to costs, in the absence of agreement between the parties they are invited to provide written submissions as to costs; the Defendant in 7 days from the date of the handing down of the judgment and the Claimant 14 days thereafter. The Court will determine the issue on paper.