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
		27/07/2016

Mr Justice Collins:

1. The claimant, who is very probably giving a false name, arrived in this country using a false Hungarian passport in the name Chidibiere Ekechukwu. The name was probably his correct name but the documentation he relied on was false. He claimed to have been born in the Bakassi peninsula which at the time of his birth in 1986 was part of Cameroon but has since become part of Nigeria. He left the UK in November 2010 and travelled to Barcelona to visit, he said, the man who had helped him to escape from those who had trafficked him to Hungary. On his return to the UK on 21 November 2010, he was refused leave to enter since the forged Hungarian documents were identified as such and he was to be returned to Spain. He made an Article 8 ECHR claim. But he was charged with offences arising from his false documents. Following his conviction on 28 April 2011 he was sentenced to 18 months' imprisonment and in May 2011 was notified of his liability to automatic deportation.
2. The claimant then made an asylum claim alleging, still using the name Ekechukwu, that his father had tried to kill him. This claim was rejected (he accepts that it was wholly untrue and alleges he was told to put it that way by those then advising him). Removal to Nigeria was in due course directed. On 13 January 2012 he was interviewed by the Nigerian High Commission where he alleged that he was a Cameroon national named Chibong Lucas. This led to an attempt to remove him to Cameroon which was frustrated by his bad behaviour in assaulting his escort and urinating in the plane.
3. There followed a number of attempts to prevent removal by means of fresh claims for asylum, assertions that the claimant had significant mental health problems and production of evidence from an expert supporting his claim to be from Bakassi and so Cameroonian. None of that is directly material in the claim with which I am concerned which relates to a period of detention between 6 July 2015 and 9 July 2015. That detention is said to have been unlawful. I am afraid this claim has neither been properly presented nor properly argued as will become apparent. I have been burdened with much paper which was unnecessary. There is an application for judicial review before the Upper Tribunal (UT) relating to removal based on the expert evidence which I have looked at and which on its face, both the medical and that supporting his claim to be Cameroonian, is unimpressive.
4. The claimant is liable to be detained as one who is subject to deportation. I shall deal with the legal basis for detention in due course. His claim to have been the victim of trafficking was rejected in 2014 and an attempt at judicial review failed. In August 2014 he was granted bail subject to a number of conditions including reporting by the First-tier Tribunal (FTT). There was a battle pursued in the UT in relation to tagging and reporting conditions which the UT dealt with.
5. On 23 July 2013 the Cameroon High Commission wrote a letter to the Home Office stating that during his interview the claimant had "admitted unequivocally that he is a Nigerian and pleaded with the High Commission to help him frustrate removal directions by British Immigration". His birth certificate in his true name Chidibiere Ekechukwu was in his parent's possession in Nigeria. From his account, names and demeanour there were clear indications that he was an Ibo speaking Nigerian from South Eastern Nigeria. Finally, on 14 November 2014 the Cameroon High Commission refused to accept the claimant as a Cameroonian and so he could not be removed there.
6. It was accordingly necessary in order that he could be removed to obtain the necessary consent from Nigeria and an Emergency Travel Document (ETD). On 24 February 2015 the claimant refused a telephone interview with the Nigerian High Commission saying he needed a face to face meeting. Arrangements had been made with the Nigerian High Commission that its immigration officials would visit various detention centres to interview those who were said to be Nigerian and who needed an ETD to effect removal. Such a visit was arranged on 10 July 2015 and the claimant's case was to be considered then. It was decided by the defendant that he should be detained in order to be interviewed. The material minutes relating to this decision assert that there was a high risk of absconding and that the claimant posed a high risk of harm to the public having regard to his behaviour when he frustrated the prior attempt at removal. It was considered that detention was in the circumstances having regard to his deceitful conduct and past lack of cooperation proportionate. He was detained on 6 July 2015.
7. On 7 July 2015 the detention was challenged by this claim. Following an initial refusal of interim relief by Blake J on 8 July 2015, Kenneth Parker J granted relief on 9 July 2015 whereupon the claimant was released for a bail hearing to take place before the FTT and with a condition that he attend an interview with the Nigerian High Commission. A hearing before the FTT on 15 July 2015 led to a grant of conditional bail. On 20 July 2015 following an interview at the Nigerian High Commission which the claimant attended on 17 July 2015, an ETD was granted. Following refusal on the papers, Deputy Judge Seys-Llewellyn granted permission for judicial review on 26 November 2015. There have been subsequent attempts to remove and detention in March 2016 which have led to yet more litigation but I am not concerned with those save to express considerable concern at the amount of money that has been spent in relation to this claimant.
8. The claim as amended and as set out in Ms Naik's skeleton argument raised a number of issues including that the claimant's mental state meant that he was unsuitable for detention and that since there were outstanding challenges to his removal that removal could not be regarded as imminent and so detention was unlawful. I have no doubt that there was sufficient care available to deal with such genuine mental illness from which the claimant might suffer and that part of the claim was not pursued with any vigour.
9. In R (Lumba) v. SSHD [2012] 1 AC 245 Lord Dyson, speaking for the majority, said in paragraph 30, in dealing with the Hardial Singh principles (R v Governor of Durham Prison exp Hardial Singh) [1984] 1 WLR 704), :-

"All that the Hardial Singh principles do is that which Article 5(1) [of the ECHR] does: they require that the power to detain be exercised reasonably and for the prescribed purpose of facilitating deportation".

The obtaining of an ETD is essential if deportation is to be effected when, as is often the case, the deportee has no valid documentation. Thus if he has been uncooperative and there is good reason to believe that he will not attend an interview unless detained and so made available, detention will be lawful. It is not necessary nor do the Hardial Singh principles require that actual deportation is imminent. No doubt, if bail is otherwise appropriate, following the interview bail should be granted.

10. I must now deal with the relevant statutory provisions which deal with the power to detain. They are contained in Schedules 2 and 3 to the Immigration Act 1971. Regrettably, neither counsel in their skeletons nor in the hearing before me identified the correct paragraphs. Schedule 2 Paragraph 10 permits detention for the purpose of examination of those seeking leave to enter. It does not apply directly to such as the claimant who is subject to a deportation order. The power to detain such as him is contained in Schedule 3 Paragraph 2(3) which is headed "Detention or control pending deportation". Paragraph 2(4A) of Schedule 3 provides:-

"Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph…(3) as they apply in relation to a person detained under paragraph 16 of the Schedule".

Paragraph 22 provides for release on bail granted either by a suitably senior immigration officer or the FTT. Paragraph 24 enables the arrest of a person on bail if an immigration officer or constable "has reasonable grounds for believing that that person is likely to break, or has broken…..any condition of his recognizance…". Sub-paragraph (2) is important. It requires that a person who was granted bail by the FTT be brought before the FTT or, if that is not practical within 24 hours, a justice of the peace. The precise wording in paragraph 24 (2)(a) is far from clear since it seems to suggest that if the person arrested is due by a condition of his bail to report to an immigration officer within twenty four hours after his arrest, the obligation to bring him before the FTT or a justice of the peace does not arise. But that is not material on the facts of this case.

11. Paragraph 33 of Schedule 2 essentially repeats paragraph 24 but does not apply to a person detained under Schedule 3. Why there is repetition in the Act is difficult to follow. But the claim as presented before me sought to rely on paragraph 33; paragraph 24 was not mentioned. Rather than recognise that paragraph 24 had the same effect, Ms Murray was submitting simply that paragraph 33 did not apply since the detention was under Schedule 3. When the true position was eventually identified at the very end of the submissions made, Ms Murray indicated that she had not had full instructions in relation to paragraph 24 and whether the general power to detain persisted against one such as the claimant who had been released on bail. She said she was unable properly to argue the point and requested an adjournment. Since I was told the point is of importance for the defendant, I agreed to allow further representations to be made in writing.
12. A letter of 8 July 2015 to the claimant explained why he had been detained. It repeated the basis for detention which had been relied on for the original decision to detain for the purposes of deportation. It simply relied on the claimant's past behaviour. The material minute which was produced in these proceedings sets out the history but adds this sentence:-

"It is therefore proposed that [the claimant] should be detained so that he may be interviewed by the Nigerian Officials on 11 July 2015 for the purpose of securing an ETD to effect his removal from the UK".

There was however no use of the powers granted in paragraph 24 of Schedule 2.

13. Ms Murray in her written submissions has relied on two reasons for submitting that the detention was lawful. First, she submits that there is no restriction based on the exercise of power to detain under Paragraph 2(3) of Schedule 3 to the 1971 Act and so the power can be exercised even if the person detained is on bail whether granted by the FTT or by a chief immigration officer. Secondly, she submits that the grant of bail by the FTT on 5 August 2014 was on condition that the claimant appeared before an immigration officer on 12 August 2014 and, when he did, the order came to an end. Thereafter, if he were to remain on bail, a chief immigration officer would grant bail. Thus he was not, she submits, on bail granted by the FTT and so there was power to re-detain him.
14. The issue is therefore of some importance. The starting point is that the power of detention for the claimant as a deportee arises under Paragraph 2(3) of Schedule 3. The schedule is headed 'Supplementary Provisions as to Deportation', but that only means that the detention of and any powers ancillary to detention of a deportee are dealt with in Schedule 3. It is not supplementary to Schedule 2, but it does apply certain ancillary powers (arrest, place of detention and search) contained in Schedule 2. Further, by Paragraph 2 it applies Paragraphs 22 to 24 of Schedule 2 which deal with release of detainees on bail. Paragraph 22(1A) is most important. It provides:-

"An immigration officer not below the rank of chief immigration officer or the First-tier Tribunal may release a person so detained on his entering into a recognisance …..conditioned for his appearance before an immigration officer at a time and place named in the recognisance…..or at such other time and place as may in the meantime be notified to him in writing by an immigration officer".

15. This has been considered in Guidance issued by the President of the FTT dated 11 June 2012. Paragraph 33 of this Guidance provides, in considering what conditions should be imposed by a FTT judge:-

"The first condition is to specify when bail will end. Where no immigration appeal is pending, a FTT judge should grant bail with a condition that the applicant surrenders to an immigration officer at a time and place to be specified either in the bail decision itself or in any subsequent variation".

Paragraph 35 continues:-

"Once the applicant has answered to an immigration officer in accordance with that primary condition, the duration of any further grant of bail will be made by a Chief Immigration Officer rather than the Tribunal…."

16. This Guidance applies the wording of Paragraph 22(1A). Bail will always be granted with an obligation to attend at some time in the future either an immigration officer or, if an appeal is pending, the tribunal when the appeal is listed. In this case, the grant of bail on 5 August 2014 was in the form provided in accordance with the Guidance. This stated that the primary conditions were:-

"The applicant is to appear before an Immigration Officer at [a particular reporting centre] between 10am and 4pm on Tuesday 12^th August 2014 or any other place and on any other dates and time that may be required by the Home Office or an Immigration Officer".

The Secondary Conditions included electronic monitoring and a requirement of residence at a particular address but also repeated the obligations contained in the Primary Conditions referred to above.

17. The defendant produced on 14 July 2015 a bail summary. The bail decision of 5 August 2014 is recorded, but there is no indication that the claimant reported on 12 August 2014 or whether any later date was specified. It is recorded that on 24 February 2015 he attended Croydon Reporting Centre to report to immigration 'as instructed to do so in the conditions of his release on bail'. On 25 February it is said that he was 'placed on daily reporting'. The refusal to vary this condition in particular in refusing him a travel card led to an application for judicial review before the UT. Nowhere is it said that there was a grant of bail by a Chief Immigration Officer. It seems clear from the history that it was assumed that the bail granted on 5 August 2014 would continue with a condition to report to an immigration officer at regular intervals. There can be no doubt that reporting regularly can be and often will be a bail condition so that the condition, which is recorded both as a primary and secondary condition, can result in regular reporting obligations.
18. In the minute of 8 July 2015, the entry recording the events of 24 February 2015 reads as follows:-

"On 24 February 2015 [the claimant] attended Croydon Reporting Centre to report to immigration as instructed to do so in the conditions of his release on bail."

It continued that the claimant had been non-compliant and abusive and so his reporting condition had been varied from weekly to daily. The minute records in relation to the grant of bail on 5 August 2014:-

"[The claimant] was granted bail on 5 August 2014 with electronic monitoring and reporting restrictions. He was released….on 7 August 2014."

This makes it clear that it was considered that the bail granted by the FTT judge was to continue and that the condition of reporting was not treated as the termination of bail. In the absence of any fresh grant by a Chief Immigration Officer and in the light of the clear indication in the minutes, I have no doubt that the bail order made by the FTT judge remained in force. I have a strong suspicion that this would have been the usual response by the defendant notwithstanding the guidance of the President of the FTT and whatever may have been said in Raza v. SSHD [2016] UKUT 132 (IAC). This case on its facts shows that the FTT bail continued.

19. Ms Murray has placed reliance on a decision of Underhill J in S v. SSHD [2006] EWHC 228 (Admin). The claimant was a deportee who had been granted bail by a FTT judge on 19 January 2006 which was subject to daily reporting and required him to attend an immigration officer on 16 February 2006. On 27 January the claimant was detained, it was said pursuant to Paragraph 16(2) of Schedule 2 pending his removal from the UK. On 4 February 2006 he was served with a notice purporting to amend the conditions of his bail so that he had to attend the Immigration Removal Centre on 4 February 2006 when he would be removed.
20. It was submitted on the claimant's behalf that he had the right not to be detained until 16 February 2006. This argument failed in relation to the period after 4 February since the variation was in accordance with the conditions of bail following the wording of Paragraph 22(1A) of Schedule 2. That is all that was decided in that case since Underhill J did not accept the argument based on the power under Paragraph 16(2) of Schedule 2. Paragraph 2(4) of Schedule 3 does not import Paragraph 16 of Schedule 2. It only says that the ancillary powers in relation to detention in the material provisions in Schedule 2 apply "as they apply in relation to detention under Paragraph 16 of Schedule 2".
21. It had been submitted on the claimant's behalf in S that Paragraph 24 provided the only lawful way in which detention of one on bail granted by the FTT could be re-detained. The decision in S does not go beyond referring to that argument in relation to a variation of a requirement to attend an immigration officer. Underhill J said in Paragraph 11:-

"But, more generally, I doubt if it is right that the SSHD can simply rely on reassertion of the underlying power under which a person has been detained – whether it is to be found in paragraph 16 or anywhere else – to re-detain that person after he has been released by the Tribunal under paragraph 22."

22. It is important that detention is only imposed if Parliament has clearly indicated that it is lawful. This means that any conditions precedent to detention must be established. Parliament has in Paragraph 24 set out the circumstances in which one subject to immigration detention who has been granted bail can be re-detained. I have set out the material requirements of Paragraph 22 in paragraph 10 above.
23. I have no doubt that Underhill J's preliminary views were correct. It is not permissible to use the general powers in Paragraph 2(3) of Schedule 3 to re-detain where a bail order is in force. I do not have to consider whether the same principle applies where bail has been granted by a Chief Immigration Officer, but my preliminary view is that the same bar to re-detention must prevail.
24. This means that the re-detention in this case was unlawful. But I am satisfied that this will not avail the claimant following the approach of the Supreme Court in Lumba (supra). It would have been open to the immigration officer to have reasonable suspicion that the claimant would not, if required to attend the detention centre to have an interview with the Nigerian High Commission, comply with that requirement. Thus detention pursuant to Paragraph 24 could have been imposed and I am sure that no FTT judge would have granted bail. I appreciate that Kenneth Parker J released the claimant, but that was because the re-detention was prima facie unlawful.
25. It seems to me in the circumstances that the claimant is entitled to no more relief than that his detention was not lawfully imposed but that no other relief can be obtained.