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
		9 June 2016

Mr Nicholas Lavender QC :

1. The Claimant was detained by the Defendant from 29 March 2013 to 24 November 2015 pursuant to paragraph 2 of Schedule 3 to the Immigration Act 1971. The Claimant challenges the lawfulness of that detention on two grounds:

i) The Claimant alleges that he was detained in breach of the Hardial Singh principles.

ii) The Claimant alleges that his detention was contrary to the Defendant's policy concerning individuals with a serious mental illness.

The Claimant

2. The Claimant is a Sudanese national and was born on 26 December 1981. He entered the United Kingdom without leave on 13 August 2001.
3. The Claimant made a claim for asylum on 25 September 2001. This was refused. He appealed and his appeal was dismissed on 25 October 2002. In dismissing this appeal, the Adjudicator stated that he was not satisfied that the Claimant's evidence was true. Subsequently (in a determination promulgated on 3 June 2013) the First-tier Tribunal stated by reference to his asylum claim that it was "clear that the [Claimant] has evinced the capacity to deceive." The Immigration Appeals Tribunal refused permission for a further appeal on 21 December 2002.
4. On 18 January 2003 the Claimant married a Hungarian national. In March 2005 she returned to Hungary, but in September 2005 the Claimant applied, on the basis of his marriage, for an EU residence card. The First-tier Tribunal was later to conclude (in its determination of 3 June 2013) that "his application and the subsequent issue of a Residence Card were based on deceit."
5. The residence card was granted on 24 November 2005, but revoked on 28 August 2007, by which time the Claimant was divorced. His appeal against the revocation of his residence card was dismissed on 9 October 2007.
6. The Claimant married again. His new wife had leave to remain in the United Kingdom and, in reliance on that fact, the Claimant applied on 17 August 2009 for indefinite leave to remain, which was granted on 5 November 2009.
7. On 4 August 2012 the Claimant committed the offence of unlawful wounding. The victim of this offence was the 3 year old son of the Claimant and his second wife. The boy sustained what was described as "a very nasty full-depth laceration to the left lower eyelid, which required stitches." The Claimant pleaded not guilty, but was found guilty by a jury and on 9 November 2012 Mr. Recorder Burgess sentenced the Claimant to 15 months' imprisonment.
8. The Claimant thereupon became a "foreign criminal" for the purposes of section 32 of the UK Borders Act 2007, subsection (5) of which required the Defendant to make a deportation order in respect of the Claimant. The Defendant made a deportation order on 22 March 2013, which was served on the Claimant on 28 March 2013. Pursuant to section 5(1) of the Immigration Act 1971, the effect of this order was to invalidate the Claimant's leave to remain in the United Kingdom.
9. On 29 March 2013 the Claimant was released from his prison sentence but detained by the Defendant.
10. The Claimant appealed against the Defendant's decision to make the deportation order, which he contended was unlawful under section 6 of the Human Rights Act 1998. That appeal was refused by the First-tier Tribunal in the determination of 3 June 2013 to which I have referred. The Claimant's further appeal to the Upper Tribunal was dismissed in a determination promulgated on 13 August 2013, and on 4 September 2013 the Upper Tribunal dismissed the Claimant's application for permission to appeal to the Court of Appeal.

The Hardial Singh Principles

11. The Hardial Singh principles were formulated as follows by Dyson L.J. in R. (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, at [46]:

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

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

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

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

12. As to principle (i), the Defendant clearly intended to deport the Claimant. However, this proved difficult, because of the Claimant's refusal to cooperate with the Defendant's attempts to obtain a travel document for the Claimant from the Sudanese authorities. Had the Defendant cooperated, then his detention would have been much shorter and it is likely that he would have been removed from the United Kingdom to Sudan in 2013.
13. On behalf of the Claimant, Miss Fisher contended that it was unlawful to detain the Claimant at all and that, in effect, no period of detention was reasonable for the purposes of principle (ii). I do not accept this submission, which was based largely on the claim that the Defendant was not entitled to form the view that the Claimant presented a high risk of absconding and a serious risk of re-offending. In fact, his immigration history, to which I have already referred, justified the conclusion that he presented a high risk of absconding, and while in prison he had been assessed as presenting, if released, a high risk of serious harm to his wife and children and a medium risk of serious harm to the public.
14. The Claimant's alternative submission in relation to principle (ii) was that the 32 months from 29 March 2013 to 24 November 2015 during which he was detained was more than a reasonable period. In order to consider this submission, it is necessary to review the steps which were taken by the Defendant in an attempt to effect the Claimant's removal from the United Kingdom, as part of considering what was reasonable in the light of all relevant circumstances, including those listed by Dyson L.J. in R. (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, at [48].
15. An important factor here is the Claimant's non-cooperation. I was referred to a number of authorities in which the significance of this factor has been considered: R. (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804, at [54], per Toulson L.J.; R. (on the application of Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, at [122]-[128], per Lord Dyson J.S.C.; Kamara v Secretary of State for the Home Department [2013] EWHC 959 (Admin), at [25], per Collins J.; R. (on the application of Kajuga) v Secretary of State for the Home Department [2014] EWHC 426 (Admin), at [18], per HHJ Blackett. On the one hand, non-cooperation may have the effect of substantially increasing the length of the reasonable time for which a person may be detained while the Defendant seeks to effect his removal. On the other hand, it is not a "trump card" which justifies indefinite detention.
16. It was not in dispute that the Claimant deliberately and consistently refused to cooperate with the Secretary of State's efforts to remove him, both before and after the Claimant had exhausted his opportunities to appeal against the decision to make the deportation order. Miss Fisher acknowledged that she could not point to any acts of cooperation on the Claimant's part. He did not, for example, respond to the repeated suggestion that he apply to take part in the Facilitated Return Scheme. Miss Fisher accepted that he refused to complete the application forms for an emergency travel document and that he repeatedly refused to attend interviews with the Sudanese officials.
17. Miss Patry, who represented the Defendant, prepared a very helpful chronology of the efforts made by the Defendant to send the Claimant to Sudan. In summary, these were as follows:

i) The Claimant's Sudanese passport having expired, in June 2013 the Claimant was asked to complete the application forms for an emergency travel document. When he refused to do this, the forms were completed for him and submitted to the Sudanese authorities. However, it was (correctly) understood that the Sudanese authorities would require a face-to-face interview with the Claimant.

ii) Starting in July 2013, the Defendant sought to arrange an interview for the Claimant at the Sudanese Embassy. This took some time, as the Sudanese Embassy cancelled interviews booked for 7 August and 9 October 2013. The interview was eventually arranged for 13 November 2013. However, it did not go ahead as the Claimant refused to attend.

iii) A further interview at the Sudanese Embassy was arranged for 24 January 2014. The intention appears to have been that the Claimant would be taken there in handcuffs. However, this plan was abandoned, and the interview cancelled, when advice was received that the Sudanese authorities would not permit the use of force within the Embassy.

iv) The next stage was to invite the Sudanese authorities to attend an interview at a secure location. This again took some time to arrange, for a number of reasons: the Sudanese authorities sometimes took time to respond to requests; they were willing to travel, but not outside London (and the Claimant was then being held in Oxfordshire); an interview was arranged at Wandsworth Prison for 5 March 2014, but had to be cancelled because of an exercise at the prison; consideration was given from April onwards to moving the Claimant to one of the immigration removal centres at Colnbrook or Brook House, but there were practical difficulties; in September 2014 an action plan was agreed to move him to Colnbrook; in October 2014 the Sudanese authorities agreed to interview him there and, after cancellation by the Sudanese authorities and rescheduling, the interview was arranged for 5 November 2014. However, this interview did not go ahead because the Claimant refused to attend.

v) Meanwhile, enquiries were made of the Sudanese authorities, starting in March 2014 at the latest, to find out whether they were prepared to issue a travel document without interviewing the Claimant. There was no positive response to these enquiries, nor did the documents which I was shown indicate any grounds for expecting that there might be a positive response if these enquiries were repeated.

vi) An entry in the Defendant's records dated 3 December 2014 suggests that the Defendant had proposed a further interview at Brook House, but I was not shown any document recording any subsequent contact with the Sudanese authorities with regard to arranging a further interview at this or any other location.

vii) The Claimant was asked in January, July and August 2015 if he would attend an interview, but maintained his position that he would not do so.

viii) A note dated 14 October 2015 indicated that, at the most recent detention review panel meeting, it was decided that an official was going to look into the possibility of whether the Sudanese authorities would issue an emergency travel document without a face-to-face interview. However, I was not shown any record to indicate that such an approach was in fact made to the Sudanese authorities, nor any evidence to suggest that a positive reply to such an inquiry could reasonably be expected in 2015 when none had been forthcoming in 2014.

ix) The decision to release the Claimant was taken on 20 October 2015 and he was released (in response to a bail application) when accommodation was secured for him.

18. Thus, in summary, it appears that most of 2013 was spent in trying to arrange for the Claimant to be interviewed at the Sudanese Embassy and most of 2014 was taken up in trying to arrange for the Claimant to be interviewed at Colnbrook IRC. Neither interview went ahead, because the Claimant refused to attend. But no attempt appears to have been made in 2015 to arrange a further interview, and enquiries in 2014 had already indicated that the Claimant could not be removed without an interview.
19. I accept that the Secretary of State was acting with reasonable diligence and expedition down to the end of 2014 and that the period to the end of 2014 was a reasonable period for the Claimant to be detained. But I am not persuaded that the Defendant did anything in 2015 to progress the Claimant's removal.
20. Miss Patry drew my attention to the frequent references in the Defendant's records to consideration being given to prosecuting the Claimant for the offence created by section 35(3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 of failing without reasonable excuse to comply with a requirement made by the Defendant under section 35(1) of that Act (i.e. a requirement to take specified action if the Defendant thinks that: (a) the action will or may enable a travel document to be obtained by or for the Claimant; and (b) possession of the travel document will facilitate the Claimant's deportation or removal from the United Kingdom).
21. The first record which I have seen of consideration being given to such a prosecution dates from 17 March 2014. It was not, however, until after the Claimant had refused to attend the interview on 5 November 2014 that his case was referred to the relevant Home Office department, known as CSIT. They responded (although it is not clear when) by saying that the Claimant was accepted for prosecution "to be taken forward when resources allow." However, no prosecution was in fact commenced before the Claimant was released.
22. I am indebted to Miss Patry for drawing my attention to the case of R. (on the application of Babbage) v Secretary of State for the Home Department [2016] EWHC 148 Admin, in which Garnham J. said:

"I cannot see how it can conceivably be said that pursuit of the possibility of prosecution under Section 35 can justify the Claimant's detention. The first principle set out by Lord Dyson in Lumba was that the Secretary of State can only use the power to detain for the purpose of deporting the person concerned. If the true purpose for detaining him was to prosecute him under Section 35, that was not a lawful exercise of the power."

23. I agree. Miss Patry argued that Garnham J. was wrong, because detaining someone while they are prosecuted would be detaining them for the purposes of deporting them if, to use the words of one of the notes disclosed in this case, the prosecution was a "route to drive compliance," which I take to mean a form of pressure applied to the Claimant to encourage his cooperation with his removal. I do not accept this argument.
24. In any event, there was no prosecution in the present case, despite the fact that the Claimant's case was referred for prosecution after he refused to attend the interview on 5 November 2014 and the Claimant was not released until 24 November 2015. The notion that it is a lawful use of the power conferred by paragraph 2 of Schedule 3 to the Immigration Act 1971 to detain someone for a year while the relevant department gets round to initiating a prosecution only needs to be stated in order to be rejected.
25. In my judgment, therefore, the detention of the Claimant after the end of 2014 was unlawful.

Serious Mental Illness

26. In the light of my decision that the Claimant's detention in 2015 was unlawful, it is unnecessary for me to address the Claimant's argument that his detention was unlawful because the Secretary of State was in breach of her policy that those suffering from a serious mental illness which cannot be satisfactorily managed within detention should only be detained in very exceptional circumstances. This is because the Claimant did not claim to be suffering from such an illness until 2015.
27. Also, it would be inappropriate for me to say more about this issue, because it is difficult to separate it from the question whether the Claimant was detained for a reasonable time. I say this because the Claimant's case was that one of the causes of the illness from which he suffered in 2015 was his continued, prolonged and seemingly indefinite detention, and I have already found that detention to be unlawful. It would be a purely hypothetical and somewhat unrealistic exercise to ask how the Secretary of State's policy would have applied if that detention had been lawful and for a reasonable period.
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