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
		31/08/2016

HHJ McKenna :

Introduction

1. In this claim the Claimant who asserts that he is a stateless person within the meaning of article 1(a) of the 1954 UN Convention relating to the Status of Stateless Persons (although he has never made a formal statelessness application) alleges that he was unlawfully detained under immigration powers between 23 January 2015 and his release from detention on 10 November 2015. The basis for his claim is that his detention was unlawful on common law principles as it was in breach of principles [2], [3] and [4] of Hardial Singh^[1]. It is also asserted that for the same reasons, the detention was in breach of Article 5 of the ECHR.
2. The Defendant for her part denies that the Claimant was unlawfully detained during this period or at all. It is common ground that the Claimant had in the past, prior to his detention, been a serial absconder and had committed numerous criminal offences and at all material times, submits the Defendant, the Claimant was considered to be a high abscond risk. Moreover the Defendant was carrying out reasonable steps to deport the Claimant such that his detention was justified throughout on the basis that there was a sufficient prospect of deporting him within a reasonable period and where the risk of absconding was such that the period of detention was reasonable.

Factual Background

3. The Claimant was born in Tindouf on 15 April 1985, a refugee camp run by POLISARIO (the Sahrawi liberation movement) located in Southern Algeria. His parents were from Western Sahara, a former Spanish colony, most of which has been occupied by Morocco since 1975 and the remainder of which is largely desert. He is Sahrawi by ethnicity.
4. The Claimant entered the United Kingdom in 2003. He claimed asylum in June 2003 on the basis of his treatment by POLISARIO in the refugee camp. However, his asylum claim has never been determined as it was rejected for non-compliance reasons.
5. In 2005 the Claimant began to develop a mental health disorder. He has been treated as an inpatient in hospital since that time both on a voluntary and involuntary basis under mental health legislation. He has had periods when he has been drinking heavily and periods when he has been street homeless. He has had periods when he has been suicidal and periods when he has self harmed. He has been prescribed medication for his mental health condition.
6. The Claimant is a serial offender. Between 7 April 2005 and 10 September 2012 he acquired 14 convictions for 17 separate offences including attempted robbery, criminal damage, drugs and numerous convictions for shoplifting. He was assessed as posing a high risk of harm to the public.
7. On 21 August 2013 the Claimant was arrested for criminal damage and affray. He pleaded guilty and was fined. Thereafter he was detained under immigration powers initially at Colnbrook Immigration Removal Centre until July 2014 when he was removed to Morton Hall Immigration Removal Centre. The mental health records from the day he was detained record his substance misuse, schizophrenia and prescribed medication.
8. An emergency travel document ("ETD") was sought from the Western Sahara / POLISARIO Mission in London on 17 January 2014 but was refused on 11 March 2014.
9. The Defendant's review documents disclose a suspicion on the part of the Defendant that the Claimant might in fact be Moroccan and that an approach might be made to Morocco but that suspicion was not followed up at that time.
10. On 4 May 2014 the Claimant informed the Defendant that he would like to be released or returned to his country, the response to which was that the Claimant needed to provide evidence as to his identity.
11. The Claimant underwent a psychiatric assessment by Dr Hodgson on 8 September 2014 and was diagnosed as a paranoid schizophrenic with an emotionally unstable personality disorder.
12. On 28 November 2014 the Claimant issued a claim for Judicial Review in respect of which permission was refused on the papers on 20 January 2015 and again at an oral renewal hearing on 3 March 2015.
13. On 23 January 2015 the Defendant made a second attempt to apply for an ETD from the Western Sahara Mission in London. This second attempt included more supporting evidence including in particular a document described as a Receipt evidencing that the Claimant's father had been born in Western Sahara. That Receipt was issued by the United Nations Mission for a Referendum in the Sahara, albeit that it is right to record that no such referendum has ever, in fact, taken place.
14. The Defendant's detention records show that attempts were made to chase for an outcome to the application in March 2015 and in April 2015.
15. It is apparent from the detention review document dated 26 May 2015 that in early May the Defendant's unit known as CROS (Country Returns Operations and Strategy) advised the relevant case worker as follows:

"I have spoken to the FCO and they have said that as Western Sahara is not a State recognised by the UK government we would not be able to accept any documents issued by them nor would [sic] were they aware that they would be able to issue one. I may be able to pursue the case with the Algerian / Moroccan authorities who have certain jurisdiction over these matters."

16. On 27 May 2015 the Defendant applied to the Moroccan authorities for an ETD.
17. In June 2015 the case worker was advised that there might not be a response from the Moroccan authorities before late September and that the application could not be chased prior to that time.
18. By September 2015 a date was obtained for an interview by the Moroccan authorities of 22 October 2015. That interview duly took place, during the course of which the Claimant informed the Moroccan authorities that he was Algerian and he hated Morocco. In the meantime it is plain from the detention review records that steps were being taken preparatory to a possible release of the Claimant (checking addresses and the like) and in the absence of any response the Claimant was released in 10 November 2015.
19. On 16 March 2016 King LJ granted the Claimant permission to apply for Judicial Review to challenge the period of detention from 23 January 2015 (but not the earlier period of detention) to his release on 10 November 2015, for which purpose the matter was remitted to the Administrative Court.

Legal Framework

20. It is common ground that the Claimant was detained under powers available to the Defendant under the Immigration Act 1971. Such a power to detain without charge or trial is one of the most draconian powers exercised by the State over the individual and the Court is under a correspondingly high duty to regard with extreme jealousy, any claim by the Executive to imprison a citizen without trial.^[2] The statutory power does not contain any express limit on the length of detention and each case must be assessed on its own particular facts. In essence the power to detain can be lawfully exercised where there is a realistic prospect of removal within a reasonable period.
21. Dyson LJ (as he then was) in R(I) v Home Secretary [2002] EWCA Civ 888 identified at paragraph [46] four principles which emerge from Hardial Singh which he formulated as follows:

"(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 the 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."

22. Dyson LJ also noted at paragraph [47] that :-

"Principles 2 and 3 are conceptually distinct. Principle 2 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 the reasonable period. In that event, principle 3 applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired."

23. For the purposes of principles 2 and 3 in I, Dyson LJ felt that it was neither possible nor desirable to produce an exhaustive list of all the circumstances relevant to the reasonableness of the length of detention. However, they included:

"… 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 said person is being kept; the effects of detention on him and his family; the fact that if he was released from detention he will abscond; and the danger that, if released, he will commit further offences."

24. It is also not controversial that non-cooperation with removal is also a highly relevant factor.
25. The longer the detention exists, the burden of justification on the Defendant to justify the same increases. Burnett J (as he then was) in R (MI and AO) v SSHD [2010] EWHC 7614 emphasised the need for realistic expectations on the part of the Secretary of State in detention cases at paragraph [52] as follows:-

"Removals to most countries present few logistical difficulties. It is always necessary to secure the cooperation of an individual, at least if he has no valid passport. That is because biographical data are required to obtain a temporary travel document and to ensure that the receiving country will accept the deportee. No return, enforced or voluntary, can be achieved without a travel document of some sort. A person liable to removal will have little to complain about if he is detained for some months whilst he refuses to provide the data necessary as a first step to effect his removal. Thereafter, removal to most countries will follow very quickly. There are nonetheless destinations which present more difficulty. The Secretary of State must be allowed a reasonable period to make the necessary arrangements. In a case where the impediment arises from disorder in the receiving country, the task of predicting when conditions will improve and stabilise sufficiently to allow forced returns is an imprecise exercise. It may sometimes be possible to identify a trend which enables a timescale to be predicted. In other circumstances the disorder or conflict can end relatively suddenly, not least for political reasons. Yet there must be a limit to the period during which someone can be detained, albeit judged by reference to the facts of an individual case, when the grounds for believing that enforced removal will be possible rest on a hope, and little more, that the security situation in the receiving country will improve. Otherwise for practical purposes the detention becomes indefinite and assumes the almost exclusive purpose of applying pressure on the detainee to leave voluntarily. That is not the purpose for which the power to detain was conferred".

Grounds for judicial review and Conclusions

26. In the present case the Claimant asserts that he was detained unlawfully during the whole of the period from 23 January 2015, when the Defendant made the second application for an ETD from the Western Sahara Mission, until his release on 10 November 2015. Thus in summary, what is said on the Claimant's behalf is that the Western Sahara Mission, that is to say POLISARIO, should never have been approached for an ETD because they were the very people that had persecuted him and that the risk he faced from them remained undetermined (as his asylum claim was rejected for non-compliance reasons) and in any event there was no evidence that he would be considered a national of that country since he was born in a refugee camp in Algeria. Thus, by January 2015 the Defendant was pursuing an ETD despite the fact that the UK has not recognised such an entity as a State with any legal personality capable of issuing such documents.
27. No attempt was made to contact the Moroccan authorities at all until May 2015, with the interview not taking place until October 2015. In any event it was submitted that that application was also an entirely fruitless exercise as the Claimant was born in a refugee camp in Algeria, with Morocco being merely the colonial power and would therefore be unlikely to issue an ETD to a Sahrawi refugee born in Algeria. Moreover, no attempt was made during the relevant period of detention to contact the Algerian authorities.
28. It is also said on behalf of the Claimant that the period of detention is not reasonable in the light of the fact that the Claimant was in effect Stateless, which it is said has consequences for the period of time for which he may be detained before the Hardial Singh principles are breached. In particular, it is said that the period of detention was unreasonable because no attempt was made to contact the only appropriate authority, namely Algeria, that being the country of the Claimant's birth. Years have been wasted in contacting the Western Sahara Mission in London when that entity has never been recognised by the UK and it was only very belatedly that an attempt was made to contact the Moroccan authorities. Moreover, it had and / or should have become apparent at least by March 2014, and certainly by the time of the second application in January 2015, that the Defendant would not be able to effect removal within a reasonable time period given that the Claimant was, in reality, a stateless person. The Defendant bears the burden of justifying the detention, a burden that cannot be discharged in the circumstances of this case.
29. Furthermore it was said that the Defendant failed to act with reasonable diligence and expedition to effect removal, given as I have recorded, that the Claimant has been detained since August 2013 and yet the Moroccan authorities were not approached until May 2015 and no attempt at all has been made to approach the Algerian authorities in the material period.
30. As it seems to me, the essential question when considering whether principles [2] and [3] are met is whether at any particular point in time there was a sufficient prospect of removal within a reasonable period having regard to all the relevant factors which must be considered in the round in order to determine if the period in question was reasonable. Those factors include the risk of absconding and / or reoffending, the extent to which the Claimant has been dishonest and / or obstructive, as well as the length of period of detention and the extent of any obstacles to removal.
31. Insofar as the first three of these factors are concerned, it is plain that the Claimant has been a persistent absconder. His asylum claim was refused on non-compliance grounds, because he had absconded; he failed to report in line with the terms of his temporary release and was listed as an absconder on 9 June 2012 and he only came to light when he was again arrested in August 2013. Moreover, as I have already recorded, he has acquired 14 convictions for 17 separate offences and has been assessed as posing a high risk of harm to the public. He has also been dishonest in asserting who he is, having used at least six aliases and six different dates of birth.
32. These factors all therefore weigh against the Claimant when assessing what is a reasonable period of detention and of course, a period of 10 months as here, albeit following on from a period of 16 months of detention which is not the subject matter of this claim, is not in and of itself unreasonable provided that there is a realistic prospect of removal during that period. On the other hand, I am mindful of the particular circumstances arising from his place of birth.
33. As it seems to me, the key issue in this case is whether it was reasonable for the Defendant to make a second attempt to apply for an ETD from the Western Sahara Mission, notwithstanding that they had previously refused an ETD in March 2014 and notwithstanding that the Western Sahara Mission was not recognised by the UK government. In those circumstances did the Defendant's grounds for believing that enforced removal would be possible really rest on a hope and little more, to quote from Burnett J (as he then was) in R (MI and AO) v SSHD. On this issue I have concluded that the second attempt was different in substance to the first ETD in that more supporting evidence was included, including in particular, the Receipt document to which I have referred and it seems to me that in the circumstances the Defendant was entitled to explore this avenue at least for a short period of time. Nor am I persuaded that it was irrational for the Defendant to pursue this avenue in the light of the Claimant's professed fear of the Western Sahara authorities in the absence of any determination that he was at any risk from them. I am therefore satisfied that, particularly given the high risk of absconding and reoffending, that the Defendant was entitled to await the decision of the Western Sahara mission at least until May when it became clear that an ETD would not be effective even if obtained from the Western Sahara Mission and therefore there was a reasonable prospect of removal within a reasonable period during that period.
34. In the event, in May 2015, the Defendant in effect abandoned that second application to the Western Sahara mission in the light of the clarification of the position from the FCO ( referred to above) in favour of an application to the Moroccan authorities. To my mind this was plainly a reasonable avenue to pursue in the light of the absence of a decision as to an ETD from the Western Sahara Mission. Moreover, any delay thereafter cannot be attributed to the Defendant. It is plain that reasonable attempts were made to secure progress but the Defendant was reliant upon the Moroccan authorities to process the application and it cannot be said that the regular decisions to continue to detain whilst the Moroccan ETD application was processed, were in any way unlawful. The Defendant was plainly entitled to await the outcome of the interview which was arranged for the 22 October. In the light of the outcome of that interview, and even though no formal response to the ETD request had been received, the decision was made to release the Claimant.
35. I can deal with the allegations of breach of the fourth principle of Hardial Singh very shortly since on my findings, it is clear that at all times during the course of the period of detention, the Defendant was acting with reasonable diligence. It is plain that reasonable steps were taken to pursue removal and that the authorities being contacted were regularly chased and that when it became apparent that a particular avenue could no longer be pursued, a different approach was taken and taken reasonably promptly and therefore it cannot be said that the Defendant acted other than with reasonable expedition.

Conclusion

36. It follows in my judgement that this claim for unlawful detention fails, it being common ground that the alternative ground, namely breach of Article 5, adds nothing to the first ground.
37. I trust that the parties will be able to agree a form of an order which reflect the substance of this Judgment.
38. I anticipate that the parties will not be able to agree the issue of costs and, if so, I invite them to file short submissions, setting out the terms of the order sought and their reasoning together with copies of any relevant authorities three clear days before the date fixed for the formal handing down of this judgment and any such dispute will be resolved on the papers to avoid further costs being incurred.

Note 1   R v. Governor of Durham Prison ex parte Hardial Singh (1984) 1 WLR 704    [Back]

Note 2   R v Home Secretary ex parti Khawaja (1984) AC74 at [122]    [Back]