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
		08/12/2017

Rhodri Price Lewis QC :

Introduction

1. In these proceedings the Claimant challenges the legality of his detention by the Defendant since the 6^th August 2016 on the grounds (a) that it has lasted for a period that is unreasonable in all the circumstances and (b) that the Defendant has failed to act with reasonable diligence and expedition to effect his removal from the UK. He seeks a declaration that his detention is unlawful for all or at least part of its duration. He seeks damages for unlawful detention and costs. He remains in detention. His application for interim relief in the form of an order directing his release from custody was refused by Mr Justice Warby on the 17^th August 2017.
2. Permission to bring this claim for judicial review was refused on the paper application by Mrs Justice Lang on the 24^th June 2017. On the Claimant's renewed application for permission for judicial review on the 17^th August Mr Justice Warby gave permission to proceed on Ground 1 of the claim only, limited to argument that (i) the Claimant has been detained for a period which is unreasonable in all the circumstances, and (ii) the Defendant has not acted with due diligence and expedition to effect removal. At the hearing of the claim I directed that this limitation on the permitted ground of claim precluded argument based on the Claimant's sexuality or religion or on his claim to be a victim of torture. Those matters were addressed in Ground 2 of the claim on which permission to proceed had been refused. Lord Justice Irwin has refused permission to appeal that refusal.

The Facts

3. The Claimant is a Nigerian national and he is now 33 years of age. He first entered the UK on the 25^th December 2006 on a student visa valid until 28^th February 2010. He stopped attending his course, overstayed and absconded. He has a child in the UK by a former partner. On the 6^th September 2010 the Claimant was arrested for overstaying. He was bailed with a requirement that he reported. He did so report until April 2014.
4. On the 7^th February 2014 he had pleaded guilty to obstruction of a police constable after an altercation about a rail ticket. He was given a conditional discharge for 12 months and fined. He was seen by the police again on the 15^th August 2014 when officers attended a domestic dispute in London. He was taken into custody as an immigration offender and on the following day he was released with a requirement that he report and did so until the 30^th April 2015. In January 2015 he was arrested for an offence of burglary but he was not charged. In May of that year he was charged with rape of a 12 year old girl and remanded in custody but the prosecution was in due course discontinued. He was issued with what is known as a "child abduction notice" in relation to the 12 year old girl. Such notices have no statutory basis and I shall return to considering its significance.
5. On the 27^th April 2016 the Claimant was again arrested on suspicion of burglary but again no further action was taken. On the 24^th June he failed to report to the Home Office. On the 6^th August he was arrested on suspicion of rape and kidnap. He attempted to hang himself at the police station. His detention under immigration powers was authorised although he remained in hospital following his attempt at hanging himself and he was not transferred to an Immigration Removal Centre until the 8^th August.
6. On the 10^th August the Claimant is recorded in detention as saying that his life would be in danger because of "territorial issues" back home but that he was not sure if he wished to make an asylum claim. On the 21^st August he expressed fear about returning to Nigeria because his father's family wanted to kill him over a property dispute and showed scars to his body that he claimed were from an attack by his father's family. By the 23^rd August the Defendant was recording this as a potential fresh asylum claim and at the beginning of September an asylum registration form was completed.
7. The first written review of his detention on the 12^th August 2016 set out his immigration and other history and reported that there were no known barriers to the Claimant's removal at that time, with his removability being assessed as "high". It was recorded that the Claimant had "an appalling record of reporting" and that "he is fully aware that we are taking the necessary action to remove him from the UK" and so "it is considered that he presents a high risk of absconding if released at this time". The review went on to record that at the police station the Claimant had stated that he did not have any mental health issues although he was taking medication for depression and that although he had suffered from panic attacks and had previously self-harmed, he felt fine. The Review reported that he did not fall into the category of persons suitable for detention only in very exceptional circumstances under current Home Office guidance.
8. The next review of his detention took place on the 2^nd September 2016. The written account of that review recorded that the Claimant would need an emergency travel document ( "ETD") for his return to Nigeria as his passport had expired but that a copy of that expired passport was available to support any necessary application. It explained that a telephone interview with the Nigerian High Commission had been arranged but had to be cancelled because the Claimant had made an asylum claim. It recorded under the heading "current barriers to removal (excluding documentation)" this "asylum claim". The Claimant's removability was assessed as "medium" and the review explained that as he had now made an asylum claim that claim would need to be dealt with before any removal directions could be set. He was assessed as being of high risk of absconding and as a high risk of harm to the public on the basis of his history and because he had been fighting with another detainee.
9. The Claimant was interviewed about his asylum claim on the 2^nd November 2016 and then again on the 18^th November 2016 and finally on the 18^th January 2017. The Claimant applied for asylum and asked to be recognised as a refugee because of a claimed well-founded fear of persecution in Nigeria on the basis of a family dispute, because he had changed his religion from Islam to Christianity and because he was bisexual. The Defendant considered that claim on the 14^th March 2017 and it was decided that the Claimant did not qualify for asylum or humanitarian protection and he was refused leave to remain in the UK. The notice of those decisions was dated the 7^th June 2017 and served on the Claimant on the 9^th June 2017. He appealed against those decisions and his appeal was dismissed by the Judge of the First Tier Tribunal (Immigration and Asylum Chamber) in a decision dated the 13^th November 2017, the day before the hearing before me in the High Court, on asylum, human rights and humanitarian protection grounds. The Judge found that the Claimant had not discharged the burden of proving that he faces a substantial risk of serious harm from either non-state agents or the authorities in Nigeria for any of the reasons he has given, that he was not bisexual and that he had fabricated the claim that he had changed religion.
10. The assessment of his removability as "medium" and the assessment of his risk of absconding if released as "high" continued in all subsequent detention reviews. The assessments of risks of harm to the public in subsequent reviews referred to his arrest on charges of rape and kidnap on the 6^th August 2016, the child abduction notice, his conviction and conditional discharge in 2014 and his behaviour in detention and his failure to adhere to detention centre rules.
11. Detainees are provided with monthly progress reports. In each such report up until the 2^nd May 2017 the Claimant was told the reasons it had been decided that he would remain in detention were:

i) there was reason to believe he would fail to comply with any conditions attached to the grant of temporary admission or release;

ii) to effect his removal from the United Kingdom;

iii) because there was insufficient reliable information to decide on whether to grant him temporary admission or release;

iv) because the Defendant was satisfied that his asylum application might be decided quickly using the fast track procedures.

12. From the report of the 30^th May 2017 the last reason was not mentioned but in each such monthly progress report the Defendant also stated that the decision to detain the Claimant was reached on the basis of the following factors:

i) he had previously failed to comply with conditions of stay, temporary admission and release;

ii) he previously absconded or escaped;

iii) he had not provided satisfactory evidence of his identity, nationality, or lawful basis to remain in the UK;

iv) he did not have enough close ties to make it likely he would stay in one place; and

v) on initial consideration it appeared that the asylum application might be one which could be dealt with quickly.

13. That last factor was relied upon in each such report up to and including the most recent before the court dated the 17^th October 2017.
14. The Claimant made applications for bail on five occasions. He withdrew the first four applications before they were heard. The fifth application was refused on the 12^th October 2017. The Judge observed:

"The applicant is not a suitable candidate for bail and represents a significant flight risk. He has a history of absconding not only from immigration compliance but also from the police. His surety is not suitable for the reasons given in the bail refusal and it is not proposed that the applicant lives with the surety who cannot have any influence on the applicant's compliance with bail conditions. There are a large number of witnesses here today who were due to give evidence in support of the asylum appeal and it is material that none have offered the appellant accommodation or stood surety for bail. There are significant credibility issues with the asylum claim such that I am not satisfied that it represents a sufficient incentive to ensure the applicant abides by bail conditions. The appeal is going to be heard in two weeks' time on 2 November 2017. I am satisfied the applicant's health needs are being met in detention. It is unfortunate and regrettable that after his final interview in January 2017 that the refusal was not issued until June 2017. However the applicant has applied for a judicial review and in August 2017 the administrative court refused interim relief of release from detention having been appraised of the facts of this case by counsel. The applicant's previous long history of absconding and complete disregard of the laws of the United Kingdom has led to his detention. It could be said the applicant is the author of his own misfortune. Overall I am satisfied detention is necessary and proportionate to effect removal if the appeal is dismissed."

15. The claim for judicial review of the Claimant's detention was made on the 15^th May 2017. The Claimant's application for expedition was refused by Mr Justice Mostyn on the 16^th May 2017 and on the 24^th June 2017 Mrs Justice Lang refused permission to apply for judicial review. Permission to proceed on Ground 1 on the restricted basis set out above was granted by Mr Justice Warby on the 17^th August 2017.

The Law

16. In R v. Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 1 AC 58, 162C-D, Lord Bridge held:

"An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. In Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44, 54, Atkin L.J. said: "any restraint within defined bounds which is a restraint in fact may be an imprisonment." Thus if A imposes on B a restraint within defined bounds and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restraint imposed on B as lawful. A child may be lawfully restrained within defined bounds by his parents or by the schoolmaster to whom the parents have delegated their authority. But if precisely the same restraint is imposed by a stranger without authority, it will be unlawful and will constitute the tort of false imprisonment."

17. Detention for immigration purposes is imprisonment in fact. The issue in the present case is whether detention was unlawful for some or all of the period. The power to detain in these circumstances comes from the Immigration Act 1971.
18. The well-known principles enunciated by Woolf J. in R v. Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704, which explain the constraints on the Secretary of State's powers of detention, were summarised in R (I) v. SSHD [2003] INLR 196 by Dyson L.J. (as he then was):

"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh [1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment ... the following four principles emerge:

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.

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."

19. This formulation of the law was approved by the majority of the Supreme Court in R (Lumba) v. Secretary of State for the Home Department (JUSTICE and another intervening) [2011] 2 UKSC 12, per Lord Dyson JSC at paragraphs [22] to [25]. He held with regard to the first two principles derived from Hardial Singh:

"23 ... As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips PSC includes, at paragraph 262, the following: "as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose" (emphasis added). The first principle is plainly derived from what Woolf J said.

24. As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."

20. Lord Dyson went on to explain:

"121. … 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. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. 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. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one."

21. In Fardous v SSHD [2015] EWCA Civ 931 Lord Thomas CJ stated:

"44. It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. This has been made clear in a number of cases: see for example paragraph 54 of the judgment of Keene LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and the judgment of Lord Dyson in Lumba at paragraph 121.

45. Although the risk of absconding will therefore always be of paramount importance, a very careful assessment of that risk must be made in each case, as the magnitude of that risk will vary according to the circumstances. It may be very great, for example, where the person has, as in this case, a clear track record of dishonesty and a knowledge of how to "work" the controls imposed to regulate immigration in the European Union. Another example where the risk may be high is where the person refuses voluntary repatriation that is immediately available to him. It is important to emphasise that the risk of absconding is distinct from the risk of committing further offences and not dependent on that further risk. The risk of re-offending requires its own distinct assessment.

46. However, as is accepted on behalf of the Secretary of State, the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably "trumps" other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention."

22. As Hickinbottom J summarised the position in R (Mahfoud) v SSHD [2010] EWHC 2057 at [6] at (iii) and (iv) :

"(iii) Whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the deportee within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to deport the deportee, and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the deportee must be released immediately.

(iv) There is no red line in terms of months or years, applicable to all cases, beyond which time detention becomes unreasonable. What is "reasonable time" will depend upon the circumstances of a particular case, taking into account all relevant factors."

23. It is common ground that in considering the principles set out above, the Court should reach its own judgment as to whether administrative detention is lawful and should not simply adopt a review approach to the Defendant's decision: R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804 per Toulson LJ at [62] and Keene LJ at [74]. Toulson LJ held:

"It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)."

24. See too on the Court's role DZ [2017] EWCA Civ 14 at paragraph 28 and Fardous supra at paragraphs 42 to 43.

The Claimant's Case

25. Mr Briddock on behalf of the Claimant submits that the three matters that the Defendant relies upon to justify the Claimant's continued detention, namely (i) the risk of absconding if he is released, (ii) the risk of harm to the public on release and (iii) the Claimant's conduct in detention have not been properly and carefully assessed by the Defendant and the risks have been exaggerated. He further submits that there have been unreasonable delays in deciding the Claimant's asylum application while he has been in detention. Finally, he submits that the Claimant's mental health issues are material to the reasonableness of the period of his detention.

(i) The risk of absconding

26. The detention reviews repeatedly refer to "an appalling record of reporting". Mr Briddock points out that from September 2010 when the Claimant was first served with paperwork as an overstayer he reported as required until April 2014, a period of some three and a half years. Mr Murray from the Home Office Criminal Casework Nexus team who has provided a witness statement in these proceedings claims that the Claimant failed to report after that date but the contemporaneous Home Office record for the 28^th April 2014 suggests he may not in fact have absconded in that it advises that if the Claimant made contact the indication on the record that he was missing should be removed so as to avoid the risk of wrongful arrest. Mr Briddock submits that whilst not being entirely clear that record suggests that it might have been an error to record the Claimant as an absconder in April 2014. In August 2014 the Claimant was encountered by the police responding to a domestic dispute but he then began reporting again until April 2015 when he was arrested and remanded in custody for the alleged offence of rape of a 12 year old girl. Following his release and the discontinuance of that prosecution the Claimant next came to the attention of the police in April 2016 when he called the police to his home address because of a disturbance involving himself and his landlord. Mr Briddock stresses that it was the Claimant who was taking the initiative to make contact with the authorities and submits that that places a different complexion on his reporting record and it has been wrongly characterised as "appalling", as the Claimant has in fact been in contact for much of the time. He criticises the detention records for repeating that description without any proper analysis of the true history. He further submits that the Claimant's asylum claim and judicial review provide incentives for the Claimant to report dutifully.
27. In the circumstances, he submits that there has not been the very careful assessment of the risk of absconding in the circumstances of this case that the Lord Chief Justice in Fardous said is necessary in each case.

(ii) The risk of harm to the public

28. Mr Briddock makes the same criticism that there has not been a careful assessment of the true risk here in relation to the risk of harm to the public on the release of the Claimant. The Claimant has only one criminal conviction for obstructing a constable in the execution of his duty over a dispute about a rail ticket. He has also been cautioned for possession of cannabis and he received a fixed penalty for trespassing on the railway. That is the extent of his criminal record. Mr Briddock accepted that the Defendant is able to rely on conduct which has not resulted in a criminal conviction if the Defendant can prove on the balance of probabilities that the Claimant has committed an offence: see Farquharson v SSHD [2013] UKUT 00146 (IAC). However, in this case all that the Defendant can rely upon are records of allegations set out in the witness statement of DC Michelle Hart. There were no prosecutions for any other offences and none went to trial. The child abduction notice has no statutory basis, there are no established criteria for issuing one and there is no judicial oversight of their use or appeal from service of such a notice. Mr Briddock submits that the Defendant has attached too much weight to that notice in the circumstances as a justification for continued detention.

(iii) Conduct in detention:

29. Mr Murray's witness statement and the contemporaneous documents that he refers to record a number of episodes of misconduct by the Claimant whilst in detention. They include altercations with other detainees, shouting at staff, threats to other detainees and to staff and smoking drugs. Mr Briddock points out that in R (on the application of BE) v Secretary of State for the Home Department [2011] EWHC 690 (Admin) a case where the misconduct in detention was characterised in the judgment as "relatively minor altercations, involving verbal abuse, aggressive behaviour and minor physical incidents" (see paragraph [148]). Mr Stephen Morris QC , sitting as a Deputy High Court Judge, as he was then, said:

"150. …even if the Claimant is responsible for reprehensible conduct, I am not satisfied that this is substantially material to the issues that fall for decision. First, I do not accept that misbehaviour whilst detained is indicative of misconduct on release, by way of increasing risk either of re-offending or of absconding. The Claimant did not try to escape from detention, he did not commit any serious offences, whilst in detention, and – most significantly given his history of offending – there is little, if any evidence that he was involved with drugs whilst detained."

30. The second point the learned deputy judge went on to make related to the Claimant's disability in that case and is not relevant here. Mr Briddock submits that it is also the case here that the misconduct in detention, of a similar nature, is not substantially material to whether this Claimant had an increased risk of absconding or offending for the same reasons.
31. He further points out that it is by no means clear that the Claimant was responsible for all the incidents the Defendant refers to. A complaint that the Claimant made about staff behaviour towards him, including provoking him, was upheld following an internal investigation. The record of that investigation suggests that it is only if a complaint is supported by independent evidence from another member of staff will it be upheld. It is also the case that the Claimant has had mental health issues and the behaviour has to be seen in that context.

Delay in Deciding the Asylum Application

32. Mr Briddock draws attention to the repeated claims in the detention progress reports that the claimant's asylum application would be "decided quickly using the fast-track procedures" and "may be one which can be dealt with quickly". He points out that the fast–track procedure had been abandoned in July 2015 after having been held to be unlawful, so the Claimant's application was never subject to that procedure. Mr Murray characterises those entries as having been made "in error" but advances no further explanation and does not explain why, if it were the case, it was ever thought that the application could be dealt with quickly. The Defendant's detailed Grounds of Defence refers to these references as "this minor typographical error". The asylum claim was made in late August 2016 and was not determined until mid-November 2017, a period of over 14 months. Mr Briddock submits that a claim based partly on the Claimant's sexuality could not be decided quickly as evidence from sources external to the Claimant would be necessary. See, for example, R (on the application of JB) v Secretary of State for the Home Department [2014] 1 WLR 836 at [29]. He pointed out that the decision of the Judge of the First Tier Tribunal was a lengthy and careful one indicating that it was wrong of the Defendant to characterise the asylum claim as spurious.
33. Mr Briddock also criticised the delay in arranging interviews of the Claimant following his asylum claim. The claim was made in late August 2016 but the first interview was not until the 2^nd November. Mr Murray explains that attempts to expedite the interview process were thwarted by the backlog of cases to be dealt with. The next interview took place on the 18^th November and the final interview was not until the 18^th January 2017. A decision was made on the 14^th March 2017 but no indication of that decision was given until the detention progress report of the 2^nd May 2017. The decision letter was not made available until the 9^th June 2017. The detention progress reports were still claiming that the application could be decided quickly.
34. The Defendant states in her detailed Grounds of Defence that from the date of the decision on the asylum application, namely the 14^th March 2017 until the decision was issued on the 7^th June 2017, she was considering the Claimant's claim under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the right to respect for private and family life, and the impact of the Supreme Court's judgment in R (MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 17 on Article 8 claims involving children. Mr Briddock submits that there was no reason for the judgments in that case to have any bearing on the Claimant's application nor is there any evidence that the Defendant was not deciding any decisions involving Article 8 during the period from the judgments in that case until the 7^th June 2017. He submits that there was no reason why the Claimant's application could not have been determined during that period. He relies on the dictum of Lord Justice McFarlane in R (JS (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 1378 who said:

"60 …There is no requirement upon the Secretary of State to account for every single day or every single week. These cases are very fact specific but where, as here, a significant proportion of the time period of detention is marked by an apparent absence of any administrative activity, and no explanation for that state of affairs is proffered, then a court, standing back and looking at all the circumstances, is entitled to come to the view that a proportion of the total period of detention was unreasonable and therefore unlawful."

35. Mr Briddock submits that there has been no proper explanation of the delay from March to June 2017 in this case and so in all the circumstances that period of detention at least was unreasonable.
36. Further, he submits that the issuing of judicial review proceedings on the 15^th May 2017 is a factor to take into account in considering the reasonableness of the Claimant's continued detention because that will affect the speed by which the Claimant can be removed, even if the judicial review fails and that may alter the balance of reasonableness when set against other factors such as the risk of absconding: see R (Ibrahim) v Secretary of State for the Home Department [2016] EWHC 158 (Admin) at [81].

Mental Health

37. The documentation shows that before his admission to detention the Defendant was made aware of the Claimant's mental health problems. The "detention gatekeeper" recorded "schizophrenia, depression and panic" in an internal email and received the response: "If we have evidence of schizophrenia we shouldn't be prolonging detention unnecessarily". The detention records show the Claimant has attempted suicide and threatened suicide and has been placed on constant watch in detention. He has been depressed and has been prescribed medication for his depression. He has refused detention centre food and drinks. On the 14^th September 2017 the Defendant was provided with a report from Dr Rachel Bingham, an independent general practitioner with Medical Justice, who wrote:

"In summary, Mr Ibidokun presents with severe depression in the context of a long period of detention, a high degree of stress, hearing voices including commands to harm himself and others, and ongoing suicidal thoughts with a history of multiple previous attempts. He is currently on hourly observation to manage his suicide risk and is not currently fit to fly. In my opinion this combination of factors means that he should not be considered fit to be detained."

38. That diagnosis was confirmed by the IRC psychiatrist on the 25^th September 2017 who prescribed further medication. On the 28^th September 2017 an internal review recommended release. On the 17^th October a noose and razor blade were found in his room.
39. Mr Briddock submits that the Defendant has been aware of the Claimant's mental health issues throughout his detention and that he has not been properly looked after in detention. This is relevant to the reasonableness of the period of detention.

The Defendant's Submissions

40. The Defendant submits that the Claimant has been detained for a period which is reasonable in all the circumstances and that she has acted with reasonable diligence and expedition to effect removal. She relies on the following submissions:

i) that the Claimant poses a substantial risk of absconding. He has previously failed to report and has absconded, being apprehended only when arrested on suspicion of kidnap and rape;

ii) that he poses a high risk of offending and of harm to the public if released;

iii) that removal to Nigeria remains in prospect within a reasonable period. Since he has been detained the Claimant raised an asylum claim which the Secretary of State considers to be spurious;

iv) this Claimant has made five bail applications, four of which he withdrew immediately before the date of the hearing providing no reasons and the fifth was refused. The Claimant's interim relief application made to the High Court was also refused; and

v) that the Claimant's health is being satisfactorily managed in detention.

(i) The risk of absconding

41. Ms Walker on behalf of the Defendant submits that in order to demonstrate a high risk of absconding the Defendant does not have to show that the Claimant is a serial absconder and refers to the judgment of Michael Fordham QC, sitting as a Deputy High Court Judge in R (Muhammad) v Secretary of State for the Home Department [2017] EWHC 745 Admin at [23] to that effect. The learned Deputy High Court Judge in that case also observed:

"Although bail is not an application of the Hardial Singh principles (see Lumba at paragraph 118) it is appropriate in my judgment for the judicial review court to have regard to the bail position when considering for itself questions of abscond risk and re-offending risk."

42. Ms Walker relies on the refusal of bail in this case and the reasons for that refusal given by the Judge. She also points out that Warby J refused interim relief in the form of an order directing the claimant's release from custody. She further points out that after entering the UK in 2006 on a student visa the Claimant failed to attend his course from March 2007. The Home Office wrote to his last known address on the 9^th April 2008 but received no reply. The Claimant was not traced again until the 6^th September 2010 when he was stopped by police officers in the street. He gave a false name, date of birth and nationality. So for some 3 years he evaded immigration control. The Judge of the First Tier Tribunal did not accept the Claimant's evidence that he had claimed asylum in 2010 and found that evidence to be a fabrication. It is accepted that he then reported until March 2014 save for one occasion in December 2013 but he failed to report on the 20^th March 2014 and by the 17^th April 2014 he was identified as an absconder and appropriate actions were taken. The entry in the records of the 28^th April 2014 was not revealing any doubt that the Claimant was an absconder but simply recording that if he did report that needed to be recorded in order to avoid the risk of subsequent arrest. He was not seen again and did not report for the following four months until police were called to a domestic dispute in August 2014. He was then given temporary release with reporting requirements but he failed to report again on the 8^th January 2015 but he was seen by police on the 14^th January 2015. He reported again but he was arrested and charged with rape on the 8^th May 2015 and remanded in custody so he was not able to report. He was arrested again on the 27^th April 2016 and again released with a requirement to report but apart from two telephone calls in July 2016 when he said he could not report because of chest pains he did not report again and on the 23^rd July 2016 he was arrested for rape. So he effectively absconded again after April 2016 apart from those two telephone calls.
43. The Defendant submits that that history of evading immigration control, providing a false identity when challenged and repeated failures to report show an appalling history of not complying with immigration control highly relevant to the careful and accurate assessment of him as presenting a high risk of absconding. The First Tier Tribunal Judge after some months of the Claimant being in detention still concluded that he "represents a significant flight risk".

(ii) Risk of re-offending and harm to the public

44. The Defendant accepts that the Claimant has only one criminal conviction and the First Tier Tribunal Judge did not find that he could be satisfied on the balance of probabilities that the Claimant committed the rapes or the burglary in June 2016 for which he had been arrested. However, the Defendant submits that she is entitled to take into account the number of arrests and charges he has faced. The First Tier Judge was right to treat the child abduction notice in this way:

"Whilst such notices have no statutory basis and breach of a notice is not itself an offence, I accept that they are an important tool used in combating the grooming of children for sex and other purposes. It is important to recognise that such notices are not issued unless the child's parents wish it. I note the matters explored by Mr Briddock in cross-examination of DC Hart, such as the lack of judicial oversight for such notices and the lack of any appeal right. However, the fact that a notice was issued does link the appellant to the victim's disappearance over a number of days. The appellant has not attempted to explain how it was that he was traced through the minicab company which came to collect the child. Mr Williams also rightly pointed out that there is no evidence that the appellant has ever sought to challenge the notice in any way, which seems strange if he does not even know the girl. For the avoidance of doubt, I do not find it is more probable than not that the appellant has committed the offence of rape. However, I find his attitude towards the notice and the evidence linking him to the child untrue and this is another matter damaging his credibility."

45. The Defendant submits that this is more than sufficient material to find that the Claimant would pose a high risk of offending and be a risk to the public if he was released.
46. His behaviour in detention has also shown a disregard for the rules and has been disruptive and those matters are relevant to both the risk of absconding because if he fails to comply with the rules in detention it indicates a risk that he will not comply if released and also to the risk of reoffending. The Claimant has made two complaints about the staff but only one was upheld. That it was shows that his concerns were properly addressed.

(iii) Barriers to removal

47. The Defendant submits that the Claimant's asylum application has been based over time on different claims and that has caused time to be taken in its investigation. He has raised at various times property disputes, his sexuality, his mother being accused of witchcraft and changing his religion. The initial claim about a property dispute might rightly have been expected to be investigated quickly but the other matters raised delayed the investigation.
48. Ms Walker further submits that the references in the progress reports to the fast track procedure and to the claim being dealt with quickly are clearly an error because the Claimant was never in the fast track procedure and the fact that the wording continued to be used in the detention progress reports after the asylum claim was decided and dismissed shows that this is the case.
49. The Defendant did delay the issuing the decision on the asylum claim because of the Supreme Court decision in MM (Lebanon) as Article 8 was engaged in the asylum claim and the Claimant has a child in Swansea who was mentioned in representations on behalf of the Claimant dated the 28^th November 2016. The Defendant wanted to ensure that the judgments were fully and properly considered and that no case was wrongly refused.
50. The Defendant relies on the decision and reasons of the First Tier Tribunal Judge as showing that she was right to consider the asylum claim spurious. It was that spurious claim which largely resulted in the Claimant continuing in detention. The delays leading up to the hearing at the FTT were not the fault of the Defendant.
51. The Defendant submits that Claimant's mental condition has been properly managed and treated in detention as the records show.
52. The Defendant further submits that there are no remaining barriers to removal to Nigeria in a reasonable time.

Discussion

53. The burden of justifying this detention for all or part of its duration is on the Defendant so I must be satisfied that the matters she has relied upon in justifying it do so. There is no dispute here that this detention has been throughout for the purpose of effecting the Claimant's removal to Nigeria. I shall therefore consider whether the matters relied upon by the Defendant mean that the Claimant has been detained for a period that is reasonable in all the circumstances and whether the Defendant has acted with reasonable diligence and expedition to effect removal.

(i) The risk of absconding

54. The risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain: see Lord Thomas CJ in Fardous above. I am satisfied that there would have been high risk of the Claimant absconding if he had been released from detention at any time. He came here on a student visa in 2006 but he stopped attending his course within months of his arrival and then made no contact with the authorities and evaded immigration control for over three years. When he was stopped by police officers in September 2010 he gave a false identity, clearly in a further attempt to evade immigration control. He did then report largely as required but he disappeared again from March 2014 to August 2014. His period of regular reporting ended over three years ago and in my judgment bearing in mind his poor history of reporting since then it does not reduce the risk of him absconding now if he were to be released. I do not accept that the record of the 28^th April 2014 indicated he had not absconded. It simply made sure that if he did report that that should be recorded to avoid the risk of an unnecessary arrest. He failed to report again in January 2015 and more recently from April 2016 to July 2016 save for the two telephone calls to the police saying he was unable to report.
55. In my judgment that history shows a high risk that the Claimant would abscond if he were released. Whilst not being bound by his decision or the reasons for it I agree with the First Tier Tribunal Judge who refused bail on the basis that the Claimant presents "a significant flight risk" on the basis of this "long history of absconding". In my respectful judgment Mr Justice Warby was also right therefore not to order the Claimant's release on the 17^th August 2017.

(ii) The risk of harm to the public if he were released

56. It is right that the Claimant's record of criminal convictions in itself does not indicate any risk of harm to the public if he were released. They are comparatively minor matters dealt with as such by the prosecuting authorities and by the courts and do not involve any violence or dishonesty or serious involvement with illegal drugs.
57. However, in my judgment it is right to take into account in a careful assessment of this risk that the Claimant has been arrested for serious offences. He has not been convicted of those offences but he has not provided satisfactory explanations for his involvement in the incidents, as the First Tier Tribunal judge found. The fact that he was issued with a child abduction notice is of limited weight given the nature of such notices, as the First Tier Tribunal Judge explained, but I accept that the issue of the notice does link the Claimant with the child's disappearance over a number of days and some weight can be properly given to that in deciding the degree of risk of offending and the risk of harm to the public if he were to be released. Together with his high risk of absconding, on a careful assessment the risk of harm to the public whilst not a high risk in the circumstances further justifies his continued detention.

(iii) Conduct in detention

58. I do not consider that the Claimant's conduct in detention adds to the risk of absconding or of offending on release. There is a record of relatively minor altercations, verbal abuse, aggressive behaviour and a failure to obey instructions but such conduct in a detention centre does not indicate to me that the person responsible would for that reason either be more likely to abscond on release or be more likely to commit offences. It would be different of course if the detained person tried to escape or committed serious offences whilst in detention but that is not the case here. I do not need to go into an assessment of the relative responsibilities for these incidents within the detention centre because even taken at their highest they are not substantially material to the assessments of the risk of absconding or of offending.

(iv) Mental health concerns

59. A Claimant's mental health can be relevant to what is a reasonable period of detention. However, the Claimant has access to health care within the Immigration Removal Centres and the records show that he has had access to and has used those services. The First Tier Tribunal Judge considering the bail application on the 12^th October 2017 was satisfied that the Claimant's health needs are being met in detention and again whilst not bound by that judgment it accords with my reading of the records in this case. The Claimant has not been consistent in his claims of suicidal tendencies in detention but when he has appeared to be at risk proper measures have been put in place to manage his mental welfare. I do not consider that the Claimant's mental state has meant at any stage that his continued detention has been unreasonable.

(v) Reasonable diligence and expedition to effect removal

60. The Claimant made his asylum application at the end of August 2016. The first full interview about the claim was on the 2^nd November 2016 with a follow up on the 18^th November 2016 and a final interview on the 18^th January 2017. Nearly 5 months had by then already passed since the Defendant had first become aware of the claim. The claim was not determined until the 14^th March 2017 so nearly 7 months had passed since the first intimation of a claim. However, despite that period of time having passed, the letter setting out the decision was not dated until the 7^th June 2017 and not served on the Claimant's representatives until the 9^th June 2107.
61. I am prepared to accept that the changing grounds of the Claimant's application delayed its determination but when a final interview had taken place in January 2017 it is reasonable to expect that a decision would be made reasonably promptly unless there were good reasons for a delay. In seeking to explain what happened between the 18^th January 2017 and the 7^th June 2017, Mr Stephen Murray of the Home Office said in his witness statement said this:

"The case remained with the asylum team from the 20 January 2017 whilst Mr Ibidokun's representative's submissions and his further submissions were under consideration, until 14 March 2017 when a decision to refuse his asylum claim was completed. Information stating as such was input on CID [the Home Office database] by the asylum team. However, although the asylum aspect of the decision had been completed, during this time my understanding was that a full decision to include any Article 8 consideration could not be served until an update from Family Policy in respect of making a fresh Appendix FM decision where there were children involved."

62. There is no evidence before me that this policy of delaying all decisions where Article 8 was engaged and children were involved was ever made public. I have no evidence that no such cases were determined over this period. No notification of any such policy was made to the Claimant or his representatives nor were they told of any potential delay in determining his claim or any reason for any such delay. The Claimant's representations in respect of his son were made on the 28^th November 2016. The judgment in MM (Lebanon) was handed down on the 22^nd February 2017. Even if that judgment was of any relevance to the Claimant's claim, I do not accept that the Defendant was acting with reasonable diligence and expedition to effect removal when the claim that was potentially delaying removal had been made in late August 2016 but was not determined until early June 2017. The Claimant was detained for all that period but had no formal notification that his application was rejected until the 9^th June 2017 (albeit that there was reference to it in the detention progress report of the 2^nd May 2017) and so was not able to exercise his right of appeal until that date. Mr Murray's evidence is couched in rather tentative terms ("my understanding was…") and I do not accept that it provides a valid explanation for a delay in determining an application made in August 2016, when the last interview was on the 18^th January 2017, a decision was made on the 14^th March 2017 but the decision was not conveyed to the Claimant until the 9^th June 2017.
63. I am prepared to accept that the changing basis for the asylum claim delayed its determination but when the last interview was on the 18^th January 2017 and the judgment in MM (Lebanon) was handed down on the 22^nd February 2017, I consider that reasonable expedition would allow for a final determination to have been notified to the Claimant by the 14^th March 2017. As it was not so notified until the 9th June 2017 I consider that the Defendant did not act with reasonable diligence and expedition to effect removal by delaying determination of the decision which was the prime impediment to removal for that period from the 14^th March 2017 to the 9^th June 2017 and so his detention for that period was unlawful. It was unfortunate at the very least that the detention progress reports during all of this period stated that the asylum claim would be dealt with quickly. It was not. The First Tier Tribunal Judge in considering bail on the 12^th October 2017 noted that it was "unfortunate and regrettable that after his final interview in January 2017 that the refusal was not issued until June 2017." He was reassured on that point by the knowledge that the judicial review hearing was pending and in my judgment the delay from March to June shows that the Defendant did not act with reasonable diligence and expedition during that period.
64. However, once the decision was notified to the Claimant the other reasons for continuing detention remained valid and the detention from then on was lawful.
65. The Claimant's asylum and human rights application has been refused and his appeal dismissed on asylum, human rights and humanitarian protection grounds. I am satisfied that there are no remaining barriers to removal to Nigeria in a reasonable time. The Defendant has possession of the Claimant's expired Nigeria passport and the Nigerian High Commission has previously been prepared to cooperate in the procedure for the Claimant's removal.

Conclusion

66. The Claimant is therefore entitled to a declaration that his detention was unlawful from the 14^th March 2017 to the 9^th June 2017 on the ground that the Defendant did not act with reasonable diligence and expedition to effect removal during that period and to damages for unlawful detention during that period.

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Case Number: CO/2301/2017

Neutral Citation Number: [2017] EWHC 3178 (Admin)

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

BETWEEN:

R (on the application of Israel IBIDOKUN)

Claimant

-and- THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant

ORDER

BEFORE Rhodri Price Lewis QC (sitting as a Deputy Judge of the High Court)

UPON hearing submissions from Counsel for the Claimant and Counsel for the Defendant

AND UPON the handing down on 8 December 2017 of a judgment

THE COURT DECLARES THAT:

1. The Claimant was unlawfully detained in the period from 14 March 2017 to 9 June 2017; and

2. The remainder of the Claimant's detention in the period from 6 August 2016 to 14 March 2017 and from 9 June 2017 onwards, and his detention to the date of this order, was and is lawful.

AND IT IS ORDERED THAT:

1. The claim for judicial review:

a. Be allowed in respect of the period of the Claimant's detention from 14 March 2017 to 9 June 2017; and

b. Be dismissed in respect of the remaining periods of the Claimant's detention, and his ongoing detention.

2. The assessment of quantum be dealt with as follows:

a. The case shall be stayed until 26 January 2018 to enable the parties to negotiate quantum; and

b. The parties shall notify the Court no later than 4pm on 26 January 2018 as to whether any agreement has been reached; and

c. Should the parties fail to notify the Court as set out in paragraph 2(b) of this Order, the matter shall be transferred to the County Court at Central London to proceed as a contested quantum-only trial.

3. Any application to this Court for permission to appeal by either party be made in writing and filed and served no later than 4:30pm on 15 December 2017, after which the Court shall determine any such application on the papers no later than 22 December 2017.

4. The assessment of costs be dealt with as follows:

a. The Claimant shall file and serve written submissions on costs, to be limited to three sides of A4 paper (or the equivalent), by no later than 4pm on Friday 22 December 2017; and

b. The Defendant shall file and serve written submissions on costs, to be limited to three sides of A4 paper (or the equivalent), by no later than 4pm on 12 January 2018.

5. There be a detailed assessment of the Claimant's legally aided costs.

Dated 8 December 2017