England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		21 October 2015

1. MR JUSTICE LEGGATT: The question in this case is whether the claimant, who is a Libyan citizen, was lawfully detained by the defendant between 28 October 2011, when he was first held in immigration detention, and 8 August 2013, when he was removed from the United Kingdom to Libya pursuant to a deportation order.
2. The basic chronology of events is as follows. The claimant entered the UK on 6 May 2011. On 13 June 2011, within only a few weeks of his arrival, he was arrested after he had attacked and stabbed a police officer with a pair of scissors at the Libyan Embassy. He was remanded in custody following that arrest and on 24 August 2011 he was convicted of assault occasioning actual bodily harm. On 21 September 2011, the claimant was sentenced to 9 months' imprisonment for that offence and was recommended for deportation. He was due to be released on 28 October 2011. Before that date, however, on 20 October 2011, the defendant issued a notice of a decision to make a deportation order in the claimant's case. Accordingly, from 28 October 2011, he was detained pending the making of a deportation order. Such an order was made on 20 December 2011.
3. On 2 May 2012, the claimant made a claim for asylum. An application for bail was made to the Immigration Judge on 15 August 2012 but was refused. The claimant's application for asylum was refused on 15 October 2012. On 17 October 2012, the claimant lodged a notice of appeal against that refusal. His appeal was dismissed by the First-tier Tribunal on 12 December 2012. He was refused permission to appeal in the first place by the First-tier Tribunal and then on 11 January 2013 by the Upper Tribunal.
4. On 6 March 2013, solicitors acting for the claimant sent a pre-action protocol letter preceding a challenge by way of judicial review to his detention and to the deportation order. On 20 March 2013, a claim for judicial review was commenced and an application was made on an urgent basis for interim relief. That application was refused by Sales J on 12 March 2013 on the basis that insufficient reason for such urgency had been shown and that the defendant had not been given an adequate opportunity to respond to the application.
5. On 2 May 2013, a second bail application was made and bail was again refused. On 10 May 2013, for reasons which are not apparent, the claimant commenced a second action seeking judicial review, claiming similar relief to that claimed in the first action. The question of whether to grant permission to proceed was considered in both actions at the same time on 12 June 2013, on paper, by a Deputy High Court Judge, who refused permission to proceed with the claims. The applications for permission were renewed and heard by Cranston J on 6 August 2013, who confirmed the refusal of permission to proceed with the claims. Two days later, on 8 August 2013, the claimant was deported to Libya via Rome.
6. That was not, however, the end of the proceedings because the claimant sought permission to appeal against the order of Cranston J. Permission to appeal was refused on the papers by the single Lord Justice but was renewed orally in the Court of Appeal. On 5 February 2015, Aikens LJ granted permission to appeal and permission to proceed with a claim for judicial review, albeit on one ground only of the grounds that were argued, that being the contention that the claimant was unlawfully detained from 28 October 2011 until 8 August 2013. The case was remitted to this court for determination of that question and it is that question which has been argued this morning.
7. There is no doubt or dispute about the applicable legal principles. They were set out in the well-known case of R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and have been authoritatively summarised by Lord Dyson in the more recent case of Lumba v Secretary of State for the Home Department [2012] 1 AC 245 at paragraph 22 as follows:

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

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

iii. (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

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

8. The Lumba case is also authority for the following more specific propositions:
9. "The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place". (Paragraph 121).
10. Whilst periods of detention during which the detainee seeks to exhaust appeals or other legal proceedings against his removal cannot be entirely discounted, "if a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances". (Paragraph 121).
11. A refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. Other than in relation to the question of whether there is a risk of absconding, a refusal of voluntary return may still be taken into account but must be regarded as having limited relevance (Paragraphs 123 and 128).
12. A further legal principle relevant to this case is that, in considering whether at any stage there is a reasonable prospect of removal, the relevant question is whether there is a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors, including any risk of absconding and any risk of danger to the public if the detainee were at liberty: see R(on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at paragraph 45 (Toulson LJ) and R(on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at paragraph 65 (Richards LJ).
13. On behalf of the claimant, Miss Anifowoshe accepts that throughout the period that the claimant was detained the Secretary of State had an intention to deport him and was detaining him for that purpose. She submitted, however, that the period of detention was not reasonable in all the circumstances and, furthermore - and this was the principal focus of her submissions - that there is no evidence to show that there was at any relevant time during the period of detention up until June 2013 a realistic prospect of being able to remove the claimant within a reasonable period. To the contrary, Miss Anifowoshe submitted, the fact that nothing was done to attempt to remove him or to give notice or to make arrangements for his attempted removal until 27 June 2013, when notice of deportation arrangements were served on him, indicates that there was recognised by the Secretary of State to be no realistic prospect of removing the claimant during that period. It is, furthermore, as Miss Anifowoshe points out, common ground that there were no direct flights to Libya throughout the whole period of detention and there is no evidence, she submits, that enforced removals to Libya were possible at any time up until the point when arrangements for the claimant's removal were ultimately made. Miss Anifowoshe also disputes that the claimant did pose either a risk of absconding or a risk of re-offending. Having regard to those matters and to the length of detention, she submits that the whole period of detention was unlawful.
14. The law is clear, as I have indicated, that in determining the lawfulness of detention, and in particular both the second and the third of the Hardial Singh principles, it is necessary to consider all the circumstances of the particular case, including whether the detainee presents a risk - and, if so, what level of risk - of absconding or re-offending if at liberty.
15. I start by considering those factors. I cannot regard as realistic the submission made on behalf of the claimant that there was no risk of him absconding or re-offending if he had been released on bail during the detention period. On the evidence, that is a wholly unrealistic contention, which is also contrary to the view of every judge who has considered the claimant's case. I am satisfied that there was at all times a substantial risk both that the claimant would abscond and that he would re-offend if released, given in particular the following points:
16. Within a month of entering the UK the claimant had committed a serious assault on a police officer.
17. He had at that time no address and has never had an address in the UK.
18. The judge who sentenced the claimant said in his sentencing remarks: "On the evidence before the court, your behaviour has been consistently deplorable and deeply antisocial". The judge also noted that on the occasion when the claimant assaulted the police officer he had only been restrained ultimately with considerable difficulty through the use of CS gas and a taser and that it had been necessary for the staff at the Libyan Embassy to defend themselves by using furniture.
19. There is some evidence indicating that the claimant was at times unruly and disruptive during his detention.
20. Although the claimant did initially indicate that he was resigned to returning to Libya, he refused to co-operate with his voluntary repatriation, in particular he refused to co-operate with arrangements to return via Egypt, which was the first option explored by the defendant. He then, as I have mentioned, in May 2012 applied for asylum in this country, which was inconsistent with willingness to leave the UK.
21. When the claimant applied for bail he was not able to offer any sureties or any recognisance of anything more than £100.
22. He was refused bail by the Immigration Judge on 15 August 2012 because he was unable to offer a bail address and also because the judge considered that there were substantial grounds for believing that he would abscond and/or re-offend if released on bail.
23. The Immigration Judge who rejected his asylum appeal found him not to be credible or reliable in the evidence he gave and found, in effect, that his application for asylum was trumped up and bogus.
24. The judge who refused the second bail application made on 2 May 2013 was also satisfied that there were substantial grounds for believing that the claimant would re-offend and for believing that he would abscond if he were released from detention.
25. The fact that there were throughout the period of detention, as I find, substantial risks both of re-offending and of absconding does not by itself justify the length of the claimant's detention but it is, as the case law makes clear, an important factor to take into account.
26. A further important consideration is that the claimant contributed through his own actions to the delay in his removal in this case: first of all, by his refusal to co-operate in his voluntary return via a third country and, secondly and more significantly, by making an asylum claim which was found to be bogus, followed almost as soon as that had failed by further attempts to challenge his deportation through proceedings for judicial review. It is clear in those circumstances on the principles that I have mentioned that, although the period of detention in this case was very long, amounting in all to some 21 months (from May 2012, when the claim for asylum was made, until 2 days before his removal in August 2013) the position was that the defendant was in practice unable to remove the claimant until his legal challenges had been resolved. In accordance with authority, minimal weight should therefore be given to the detention during that time in assessing whether the overall period of detention was reasonable.
27. The question which has given me most concern is whether there was a reasonable prospect of removing the claimant at all relevant times. When account is taken, however, of the risks that would be, as I have found, involved if the claimant had been released at any stage, and of the fact that throughout the period of his legal challenge he could not be removed, so that during that period the prospect needs to be assessed by considering what the position would be or was reasonably expected to be by the time that challenge had been resolved, I am satisfied that there was a sufficient prospect of removal at all times to justify the continued detention of the claimant.
28. In particular, Mr Henderson who appears today for the defendant, has pointed out that in the period from December 2012, when the deportation order was made, until May 2013, when the asylum claim was made, the monthly reports indicate that there were options or potential options for removing the claimant which had by no means been exhausted. For example, the notes of a conversation with the claimant on 23 January 2012 indicated that, although not particularly keen, he might be willing to return to Libya voluntarily via Cairo. Steps were therefore taken to progress that option and to see if it could be accomplished before his passport expired, as it was due to do in March 2012. However, on 13 February 2012 the claimant tore up the relevant forms and that particular avenue was therefore frustrated. Once his passport expired, it was necessary to make arrangements for emergency travel documents to be obtained from the Libyan Embassy. That was accomplished on 20 April, when such documents were issued. However, it was almost immediately after that on 2 May 2012 that the claimant made his claim for asylum.
29. I should have mentioned that renewed encouragement had been given for thinking that removal might take place by the fact that the Libyan Embassy had offered to assist the claimant to return home. However, that offer was nullified, at least as anything that could be pursued in the immediate future, when he claimed asylum.
30. It is apparent from other entries in the monthly reports that throughout the relevant period there were negotiations and discussions taking place at the behest of the Foreign Commonwealth Office to see whether other third countries could be used to effect returns to Libya and to put in place arrangements for escorted removals. By March 2013 at the latest, the reports indicate that those discussions were bearing fruit, in that a visit had been made to review the security arrangements at Tripoli airport and it was hoped, on what appears to have been reasonable grounds, that escorted removals were to resume within the next 4 to 6 weeks. Whether escorted removals did resume quite as soon as that is not apparent as the defendant was not in practice able to attempt to remove the claimant in accordance with her settled policy until his claim for judicial review had been resolved. The very fact, however, that he was in fact removed via Italy 2 days after his application to proceed with the claim had been refused by Cranston J on 6 June 2013 is in itself an indication that the defendant's expectation that it would prove possible to deport the claimant within a reasonable period was well-founded.
31. Overall, looking at the circumstances as a whole, I am satisfied that on the facts of this case the period of detention, although long, was reasonable and that there was at all relevant times a sufficient prospect of removal to warrant the continued detention of the claimant when account is taken of all the relevant circumstances of his case. Accordingly, I am satisfied that his detention was lawful at all times applying the relevant common law principles.
32. Miss Anifowoshe also sought to argue that the claimant's detention was unlawful because it was contrary to Article 5 of the European Convention on Human Rights. She accepted, however, quite rightly in my view, that insofar as the argument was based on Article 5.1(f), it stands or falls with the arguments based on principles of common law, which I have already rejected. She also recognised that the alternative argument based on Article 5.2, which was advanced in the skeleton argument, is not one which is any longer open to the claimant to pursue, having been rejected as wholly unarguable by Aikens LJ when he considered the application for permission to appeal.
33. In the result, the claim will be dismissed.
34. Is there anything further?
35. MR HENDERSON: My Lord, simply the matter of costs. Our schedule of costs was served. I have a spare copy.
36. MR JUSTICE LEGGATT: It is a somewhat academic application, I would have thought.
37. MR HENDERSON: I think almost entirely academic, my Lord, but the Home Office nevertheless just wants to have the order. I do not know if you have a copy of this, my Lord, but I will pass it up.
38. MR JUSTICE LEGGATT: I have got something on my desk. I am not sure what it is. Let me have a look and see.
39. MR HENDERSON: It should be a total sum of some £14,928.
40. MR JUSTICE LEGGATT: I have got two statements of costs. I assume one is for each side, is it? I am just trying to work out what is what. Are they yours or whose are they?
41. MR HENDERSON: I think you may have the claimant's. My Lord, there is nothing really to say except, as you see, the total sum is £14,928, and I would ask you to award costs and summarily assess them in that sum.
42. MR JUSTICE LEGGATT: Is there anything you want to say, Miss Anifowoshe?
43. MISS ANIFOWOSHE: I have only just been handed this this morning. Having looked at it, the schedule of work on documents, it is not totally clear what the total sum there is in the schedule and also there have been claims for reviewing their own argument and the amended skeleton arguments.
44. MR JUSTICE LEGGATT: Sorry, I am just sorting out my papers. I will be with you in a moment. What are we looking at on this?
45. MISS ANIFOWOSHE: The schedule of work.
46. MR JUSTICE LEGGATT: That is the attached schedule, is it?
47. MISS ANIFOWOSHE: Yes. The other subtotal on -- it is not numbered but it is two pages before the schedule of work done itself but you have got a subtotal there of £12,903.
48. MR JUSTICE LEGGATT: Yes, I can see that.
49. MISS ANIFOWOSHE: And on the schedule itself --
50. MR JUSTICE LEGGATT: The schedule is meant to give a breakdown of -- work done on documents, part of that. Where we have got the document hours listed?
51. MISS ANIFOWOSHE: If we look at numbers 19 and 20, you have got the review of the skeleton argument, review of bundle and amended skeleton argument.
52. MR JUSTICE LEGGATT: It is not very easy. There seems to be some missing parts of the copy I have got.
53. MR HENDERSON: The total hours you will find on the second page of the document schedule. It is double-sided. Sixty-four and a half hours.
54. MR JUSTICE LEGGATT: Where?
55. MR HENDERSON: By the bottom. So if you have the schedule of work done on documents, just on the other side of that page you will see in the bottom right-hand corner the total sixty-four and a half hours.
56. MR JUSTICE LEGGATT: But how does that correspond with the body of the statement of costs?
57. MR HENDERSON: It is £10,797, page 3, top right-hand corner.
58. MR JUSTICE LEGGATT: I see.
59. MR HENDERSON: In essence, my Lord, the schedule of work follows. Everything else is broken down in the schedule main body but the work done on documents, the total is given and then that additional schedule sets out all the breakdown.
60. MR JUSTICE LEGGATT: I see. So the hours are not set out in the main part of the statement, they are in the schedule?
61. MR HENDERSON: Yes, just because it is by far the lengthiest part.
62. MR JUSTICE LEGGATT: Okay. Sorry, Miss Anifowoshe, I was trying to follow it.
63. MISS ANIFOWOSHE: The only thing that has been raised by those instructing me was the review of the defendant's own skeleton argument and amended skeleton argument at items 19 and 20.
64. MR JUSTICE LEGGATT: So they have spent the best part of 2 hours dealing with the defendant's skeleton argument and reviewing the bundle. We do not know how much that accounts for.
65. MISS ANIFOWOSHE: Also their review of their disclosure bundle, the disclosure, number 11, because there is a disclosure bundle which is blank and then below that, number 11, you have got disclosure review, which I believe is the three bundles that are before this court, and you have got 26.5 hours there.
66. MR JUSTICE LEGGATT: Where I am looking? Sorry, which item?
67. MISS ANIFOWOSHE: It is in the schedule, the first page of the schedule itself, item number 11. At the back, my Lord. It looks like that.
68. MR JUSTICE LEGGATT: On the schedule?
69. MISS ANIFOWOSHE: Yes, the itemised schedule, item number 11.
70. MR JUSTICE LEGGATT: Disclosure review.
71. MISS ANIFOWOSHE: And you have got that down as 26.5 hours.
72. MR JUSTICE LEGGATT: It is suggested that is a long time.
73. MISS ANIFOWOSHE: In my respectful submission.
74. MR JUSTICE LEGGATT: I am not going to waste too much time on this because the prospects of enforcing a costs order in Libya seems unreasonable. I am going to assess the costs in the sum of £14,000. Thank you very much, both of you, for your help. I would like, if I may, to return the defendant's bundles over there and the claimant's papers over here, the bundle, which I will leave, if I may, and I will just take away the court's papers and return those through my clerk to the Court Office.