England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2010

The Hon. Mr. Justice King :

Introduction

1. This claim raises the legality of the Claimant's administrative detention, by the Defendant Secretary of State, between the 26^th January 2005 and the 23^rd November 2005, purportedly exercising his immigration powers under Schedule 3 to the Immigration Act 1971, (the 1971 Act), as applied by section 5(5) of the Act, consequent upon service upon the claimant of a notice of a decision to make a deportation order and pending the making of a deportation order. Under section 3(5)(a) of the 1971 Act a person who is not a British citizen is liable to deportation from the United Kingdom if –

a) "the Secretary of State deems his deportation to be conducive to the public good".

Under section 5(1) of the Act where a person is liable to deportation under inter alia section 3(5), the Secretary of State may make a deportation order against him, that is to say -

"an order requiring him to leave and prohibiting him from entering the United Kingdom;"

and such a deportation order -

"shall invalidate any leave to enter or remain in the United kingdom given him before the order was made or while it is in force."

Paragraph 2(2) to Schedule 3 of the Act provides that –

"where notice has been given to a person …. of a decision to make a deportation order against him…. he may be detained under the authority of the Secretary of State pending the making of the deportation order."

2. The detention of the Claimant by the Defendant between the stated dates, a period of some 10 months, is admitted. By his claim the Claimant seeks damages and declaratory relief against the defendant both at common law for the tort of false imprisonment and pursuant to s. 6(1) and s.7(1) of the Human Rights Act 1998, by reason of a claimed breach of Article 5(1) of the European Convention of Human Rights.

False Imprisonment

3. Given the admitted fact of detention, it is common ground that the onus is on the defendant to prove a lawful justification for the detention, absent which the claimant must succeed on liability in respect of false imprisonment.

Article 5

4. Under section 6(1) of the Human Rights Act 1998 it was and is unlawful for the defendant, as a public authority, to act in a way incompatible with the claimant's convention rights under, amongst others, Article 5 and any breach of this obligation entitles the Claimant to bring proceedings for relief which can include damages. (See ss.7 (1) and 8 (1) of the 1998 Act).
5. Article 5 provides protection against arbitrary detention. It gives a right to liberty and security subject to specified exceptions set out in article 5(1)(a) to (f). The relevant exception for present purposes is that in (f) -

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law –

(f)… the lawful arrest or detention… of a person against whom action is being taken with a view to deportation or extradition."

6. It is common ground that these exceptions do not include and hence article 5 does not permit internment on security grounds. On this see A v SSHD [2005] 2 AC 68, 93, para 9, B-D per Lord Bingham –

"it (the European Court of Human rights in Chahal -v- UK (1996) 23 EHRR 413) reasserted (para 113) that –

'any deprivation of liberty under article 5(1)(f) will be justified only for so long as deportation proceedings are in progress.'

In a case …where deportation proceedings are precluded by article 3, article 5(1)(f) would not sanction detention because the non national would not 'be a person against whom action is being taken with a view to deportation.' A person who commits a serious crime under the criminal law of this country may of course whether a national or a non national be charged, tried and if convicted, imprisoned. But a non national who faces the prospect of torture or inhuman treatment if returned to his country and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) be detained here even if judged to be a threat to national security."

7. 'A' was the case where the House of Lords ruled unlawful as discriminatory against non nationals and disproportionate, the UK Government's derogation from Article 5 for the purposes of the provisions of section 23 of the Anti-Terrorism, Crime and Security Act 2000 giving power to the Secretary of State to detain a non-national if the Home Secretary believed their presence in the UK was a risk to national security, and suspected they were terrorists who could not be deported because of fears for their own safety or for other practical considerations.
8. By agreement this judgment concerns liability only.

Background facts

9. The Claimant is an Iraqi national born in Baghdad on the 2^nd January 1980. He arrived clandestinely by lorry in the United Kingdom on the 27^th July 2000 and claimed asylum. This application was refused in October 2001 but he was granted exceptional leave to remain in the United Kingdom until the 2nd October 2005. This is said (in the first open statement lodged by the Secretary of State in the SIAC proceedings pursued by the Claimant following his detention) to have been "due to government policy at the time not to return individuals to Iraq on account of its oppressive regime."
10. On the 26^th January 2005 the Claimant was served with a notice by the defendant of the intention to deport him under s.3(5) of the 1971 Act, or more accurately with Notice of a "Decision to make a Deportation Order" which also informed him that he was being detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of the deportation order.
11. The Notice set out the basis for the decision to make the deportation order which was in effect that the claimant's presence in the United Kingdom was deemed not conducive for the public good for reasons of national security.
12. The Notice informed the claimant that the Secretary of State had reviewed the Claimant's presence in the United Kingdom and it was assessed that the Claimant had been actively engaged in the provision of material support to the insurgency in Iraq, that it was known that he had travelled to Iraq in the summer of 2004 where he had engaged in anti-coalition activities, that it was assessed that he had continued such activities in support of the Iraqi insurgency since his return to the UK, that he was in contact with a number of other individuals in this country involved in similar activity, and that it was also known that he was in contact with several individuals in this country assessed to be operating to an Al Qaida agenda who were themselves assessed as representing a threat to National Security. "Accordingly," said the Notice "the Secretary of State deems it conducive to the public good to make a deportation order against you and has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from re-entering while the order is in force." It stated that the Defendant proposed to give directions for the Claimant's removal to Iraq being the country of which he was a national or which most recently provided him with a travel document.
13. The Secretary of State by the same notice certified pursuant to s. 3(2)(a) of the Special Immigration Appeal Act 1997 that the Claimant's detention was necessary in the interests of national security. By a subsequent letter sent much later, dated the 9^th November 2005, the defendant also certified the decision under section 97(1)(a) of the Nationality and Immigration and Asylum Act 2002 as one taken in the interests of national security. This meant that under s. 2(1)(a) of the 1997 Act as substituted – the Claimant's right of appeal was to the Special Immigration and Appeals Commission (SIAC).
14. The "One Stop Notice" under section 120 of the Nationality, Immigration and Asylum Act 2002 served with the notice of the 26^th of January also told the Claimant that the that "the notice of decision takes into account the reasons you gave for wishing to enter or remain in the United Kingdom. You are now required to state any reasons you think you have or may have for staying in the United Kingdom which you have not previously disclosed; these will be your 'additional grounds'. The decision will be reviewed in the light of what you say."
15. On the 1^st of February 2005 the Claimant appealed to SIAC against the decision to make the deportation order on grounds which, (by an additional statement of grounds), included those based on humans rights. These alleged that his removal would breach both article 2 and article 3 of the ECHR ,stating -

"1 The Appellant is an Iraqi National who, if returned to Iraq, will face a serious threat to his life and possible death and removal will therefore breach article 2 of the European Convention on Human Rights.

2. The Appellant may also be arrested either by coalition forces or by the insurgents and can be subjected to inhumane and degrading treatment which will be breach of Article 3 of the EHCR."

16. That appeal was still in progress and yet to reach a hearing, when on the 23^rd November 2005 the defendant withdrew the decision to make a deportation order and the same day the Claimant was released from detention under the Immigration Act.
17. The Claimant was then immediately re-arrested by the police on suspicion of having committed offences under the Terrorism Act 2000. He was charged with such offences on 25^th November 2005 but acquitted of all charges on 29^th August 2006. He was then made the subject of a control order under section 2 of the Prevention of Terrorism Act 2005, which was upheld at full trial by Mitting J who, in a decision reported at Secretary of State for the Home department -v- AH [2008] EWHC 1018 (Admin), held that the national security basis for the order was made out on the basis of the Claimant's involvement in terrorism related activities. The Claimant has been granted permission to appeal by the Court of Appeal in respect of this decision.
18. This decision is understandably prayed in aid by the Defendant in these proceedings to support the submission that the national security case against the Claimant was a strong one and the decision to make a deportation order was one properly made in good faith having regard to the express terms of s.3(5)(a) and s.5(1) of the 1997 Act, which requires in order for the power to deport to arise, only that the Secretary of State deem, that the presence of the person concerned in the United Kingdom was not conducive to the public good. I should record that it is no part of the Claimant's case for the purposes of this claim to challenge the defendant's national security case.
19. As indicated, as at November 2005, the appeal process before SIAC had not yet run its course to a hearing of the appeal. However a bail application had been refused by Ousley J. on the 17^th June 2005 in terms which recognised the strength of the national security concerns although acknowledging too the strength of the arguments under article 3, but which ultimately decided against bail because of a very real risk that if granted bail the Claimant would abscond and not attend his appeal hearing. The following passages from the written judgment make this clear –

"16. It is necessary to say that the closed evidence and submissions are very significant in this case, the crucial issue … is: what is the risk that the applicant will not attend for the hearing of the appeal if he is granted bail up to that point?

17. I am satisfied that that there is a very real risk that he would not attend and he would go underground in this country or elsewhere.

18. There are a number of factors which go to that, some of which can be spelt out. I regard there as being a very strong incentive on him to go underground. Undoubtedly, he may have a fear of return to Iraq to the hands of the authorities. I recognise that he will have been advised as to the strength of his case on articles 2 and 3 and that at first blush there is much to be said for that case. But he will also know that the Secretary of State takes a different view and at present intends to return him if he can.

19. I believe that there is a very real risk that he would not be willing to take any chance that he might be returned to Iraq to the authorities and would go underground rather than pursue an appeal in order to achieve that end."

20. As to the length of detention, Ouseley J. said this at paragraph 23 –

"23… The duration of detention is not of itself unreasonable. He was detained in January of this year. He made his application for bail in April. The appeal is being dealt with with reasonable expedition. I am hopeful (though not certain) of its being dealt with in November or reasonably shortly thereafter."

21. It is also of note for present purposes that the Defendant opposed bail in an open statement of the 14^th June 2005 which at paragraph 13 read -

"13… the Security Service assesses it to be plausible that that if (the claimant) did abscond he could flee to a third country, possibly Iraq which he visited in 2004 and where his wife is based. The Secretary of State recognises that there appears to be a logical inconsistency between objecting to bail because (the claimant) might abscond to Iraq and seeking to return him to Iraq to that country. However the intention when (the claimant) is removed to Iraq, (if his claim fails), would be to remove him with the knowledge of the relevant authorities in Iraq so that those authorities could deal with him in accordance with their legal system and/or monitor him to deal with any security threat which he posed there."

22. The emphasis in this extract is the emphasis of this court. As will be seen, an issue in this case is whether the Defendant's intention in fact went beyond simply returning the Claimant to Iraq with the knowledge of the relevant authorities and in the knowledge that the possible or likely consequence would be the Claimant's detention by such authority, and extended to an intention not to return the Claimant to Iraq at all unless the Claimant could be transferred into the detention and custody of other authorities, either the Iraqi authorities or those of the Multi-National Force (the MNF) then operating in Iraq. In other words there is an issue whether the deportation was in fact conditional upon a guarantee that the claimant would be transferred into some kind of custody in Iraq.

Detention by the Multi-National Force

23. The background facts to the operation of the Multi- National Force in Iraq which included both US and British Forces and their power to detain is pleaded in the Defence at paragraph 5(i) in these terms -

" …such forces operated at the relevant time under a legal regime derived from UN Security Council Resolution 1546, endorsing the formation of an Interim Government of Iraq … and Coalition Provisional Authority (CPA) Memorandum No. 3 adopted on 27th June 2004. The Memorandum dealt in s.6 with security detainees in the hands of the Multi-National Force (MNF) including US and British forces. Security detainees were those detained by MNF for imperative reasons of security. S.6 provided for detention on the basis of imperative reasons of security for a period of up to 18 months on application to the Joint Detention Committee."

24. These facts were accepted by Miss Harrison with, however, the addition of the following derived from the background material before this court, namely that the continued presence of the United States and UK forces as part of the multi-national forces after the formation of the sovereign Interim Government of Iraq as from June 2004, was at the request of the Interim Government which authorised the MNF to remain in Iraq to assist in maintaining security and stability. The mandate of the MNF was to expire on completion of the political process aimed at securing full Iraqi control, and was in any event to be reviewed within 12 months. The power for MNF to continue to detain security detainees was, as indicated, under CPA Memorandum No.3 of June 2004, preserved and extended by Transitional Administrative Law.
25. The decision to withdraw the notice to make a deportation order came not long after Ousley J. had written to the Defendant by letter dated 7^th November 2005 asking for a written response to the asserted factual basis of a new bail application which sought release on the grounds that there was no immediate prospect of removal to Iraq or even in the foreseeable future. It asserted that "there is no immediate prospect of a memorandum of understanding (MOU) being agreed with Iraq. It has transpired that negotiations are not even in a preliminary phase and the SSHD has stated that any timetable is in the hands of the Iraqis ."
26. The reasons for the decision to withdraw are usefully summarised in an email from the Foreign Office dated 27 June 2006 -

"The reasons they were dropped were:-

they could not be returned unsupervised because the likelihood was that they would join the insurgency;

no immediate possibility of any MOU being signed with the Iraqis to ensure correct treatment on return were they to be returned to Iraqi custody;

no guarantee that such an MOU would be honoured by any Kurdish authorities were they to be sent to the Kurdish Zone; and

no possibility of detention by British forces in Iraq on return (the Home Secretary wrote to the Defence Secretary (now Home Secretary) but he could not help ."

27. The detailed history of the circumstances in which the Secretary of State decided, even before the appeal had been determined, not to proceed with the decision to make a deportation order is at the heart of the issues which I have to decide on the question of the legality of the detention purportedly effected pending the making of a deportation order. Before I turn to consider that history it is convenient if I record my understanding of the basic case and defence of the respective parties, and the legal principles which go to –

i) the legality of any deportation order or any decision to make a deportation order, and

ii) the legality of any administrative detention pending the making of any deportation order.

THE CLAIMANT'S CASE

No lawful power to detain throughout.

28. The Claimant's case is that this detention was unlawful throughout on the ground that the Defendant had no lawful power to detain the Claimant because no lawful decision to make a deportation order had been made at the outset; alternatively because it was being exercised for a purpose for which there was no power to detain in law, namely the transferring or making arrangements for transferring "the Claimant into the custody of a third state namely the United States Forces in Iraq and/or into the custody of the Iraqi authorities and/or into the custody of the General Officer Commanding (GOC) of Multi-National Division (South East) (British Forces in Iraq)" (Particulars of Claim paragraph 27.1); alternatively because the exercise of the power to detain for these purposes was flawed in law by the illegality of the contemplated transfer, it being pleaded that any such transfer of the Claimant into the custody of these authorities was in itself unlawful as incompatible with Article 5(1) ECHR; alternatively from the outset there was – as the defendant should have appreciated on making proper enquiry – never ever any realistic prospect of the Claimant being removed compatibly with his convention rights, that is to say therefore there was never ever any realistic prospect of the claimant being removed lawfully – at all or within a reasonable period of time.
29. The basis of the plea that the Claimant made no lawful decision to make a deportation order and hence there was no power to detain from the outset, is put in three distinct ways. One is to assert that it was made for an ulterior purpose of ensuring the Claimant's detention in Iraq rather than for the professedly avowed purpose of deporting the Claimant. The second is on the basis that there was never ever, from the outset, any viable prospect of removing the Claimant compatibly with his Convention rights – given on the Defendant's own case that a "bespoke package for the Claimant was at all material times required," hence the detention could never have been "pending the making of a deportation order" since such an order could never have been lawfully made. The issue whether such a prospect existed is said to be a question of jurisdictional or precedent fact for the court to determine on its own assessment of the available evidence. A third basis which is connected with the second is that the Defendant, before making the decision to make the order, failed to make any or any proper enquiry into whether any such prospect existed and hence acted irrationally or unreasonably and therefore unlawfully on administrative law principles.
30. As indicated, the alternative case is that whether or not the decision to make a deportation order was lawfully made, the decision to detain was unlawful from the outset. In other words the power to detain was unlawfully exercised from the outset since there never was any viable prospect of the Claimant being removed compatibly with his convention rights, and therefore lawfully, within a reasonable period of time, again having regard to the admitted need to arrange a bespoke package with the Iraqi authorities if such compatibility was to be achieved. This aspect of the claim depends upon the application of the 'Hardial Singh' principles (see below) defining when the power to detain, which otherwise exists, can lawfully be exercised or continued to be exercised.
31. It is specifically pleaded (paragraph 6) that the Defendant failed to identify prior to the decision to detain that specific arrangements or assurances – "a bespoke package" – would be necessary to address the risk of breaches of the Claimant's rights under the ECHR if removed to Iraq and thereafter failed to act with all due diligence and expedition to take all reasonable steps to ascertain whether he could secure the necessary assurances from the Iraqi authorities within a reasonable time, or at all.
32. Miss Harrison made clear in oral and written submission her basic proposition that it was impossible for the Secretary of State to make a lawful decision to deport and then detain, without asking and forming a judgment on whether the deportation was lawful and compatible with convention rights. She says her case is not that all necessary arrangements for the claimant's deportation had to be in place prior to the Claimant's detention but rather that consideration had to be given prior to and/or at the time of the decision as to what if any arrangements were necessary to effect a deportation compatible with the Claimants convention rights. It was necessary to have made a proper assessment prior to the decision to detain as to the consequences of the deportation for convention rights and whether they would be breached by expulsion. Absent such consideration the defendant could not form a view as he was bound to do in order legally to detain the Claimant, as to whether and if so, when the Claimant could be lawfully removed. It is said that whilst the arrangements themselves need not be in place a Minister must at least be in a position to conclude that arrangements can be made to meet the Convention obligations if risks on return to human rights arise and he must be able to make an informed and reliable assessment as to the time frame in which those arrangements can be put in place so that deportation can be effected at all or within a reasonable time. Neither requirement it is said was satisfied in this case. To quote Miss Harrison's skeleton argument at 88 (iv) -

"… it is not a question of what is 'reasonable' as suggested in the defence – it is about the Defendant's statutory duties and the scope of the power to detain – answering these questions goes to whether the person can be detained at all and it is essential that these issues are addressed prior to the decision and not at some indeterminate point of time in the future at the executive's convenience whilst the person is deprived of his/her liberty."

Detention beyond a reasonable time or when apparently there was no realistic prospect of removal within a reasonable time.

33. A quite separate issue is raised by the claimant on the assumption, contrary to his basic case, that the detention of the Claimant was originally lawful, namely that the detention became unlawful because the Claimant was detained for a period beyond a reasonable time and/or for an unnecessarily prolonged period of time owing to the Defendant's failure to act with due diligence and/or expedition in discovering that there was no realistic prospect of the Claimant's removal within a reasonable time. Hence the Claimant was detained after it was apparent, and should reasonably have been apparent to the Defendant, that there was no prospect of a lawful removal within a reasonable time. This aspect of the claim again depends upon the application of the 'Hardial Singh' principles (see below) defining when the power to detain can lawfully be exercised or continued to be exercised.
34. The Claimant's case is helpfully summarised at paragraph 4 of Ms Harrison's skeleton argument where it is said –

"… in short it is alleged that at all material times during which the deportation of the claimant was contemplated and pursued it was with an ulterior purpose of ensuring his detention in Iraq as a criminal suspect or internee and/or there was no viable legal basis for deporting the Claimant compatibly with his Convention rights at all or within a reasonable period of time and the use of the power to detain under the 1971 Act was therefore unlawful."

THE DEFENCE - (the emphasis below is that of this court)

35. The Secretary of State's defence is in essence that he properly and in good faith for reasons of national security made the decision to make a deportation order on grounds provided for in the statutory provisions, namely that the Claimant's presence in the United Kingdom was not conducive to the public good, that he accordingly was entitled to and did lawfully exercise the power which thereby arose under Schedule 3, para 2(2) to the 1971 Act, to detain pending the making of the deportation order; that he was entitled during the period of detention 'to seek to determine whether arrangements could be put in place' that would allow for it 'to be reasonably contended before the court' (in effect SIAC) that 'the Claimant could be removed both in compliance with Article 3 ECHR and with proper regard to the fact that the Claimant was believed to have provided material support to the insurgency in Iraq, assisted known criminals, associated with a number of individuals within the UK operating to a similar extremist agenda or linked to Al Qaida and judged to be a threat to national security' and 'that he, the defendant, took such steps and acted with due diligence and expedition in doing so' (on these contentions see the defence at paragraph 5).
36. The Secretary of State submits that he was entitled, during the period of detention given the national security concerns, to investigate as part of such arrangements the practicality as well as the legality of the transfer of the Claimant into some kind of custody/detention by US/UK forces or by the Iraqi authorities given (defence 5(i)) –

"it was clear throughout that returning the claimant unsupervised to Iraq would not have been desirable, due to the assessment that he would have joined the insurgency."

The reasonableness of the period of detention

37. It is then pleaded (defence paragraph 15) that the Claimant was released from detention promptly when it became apparent that there was no longer any realistic prospect of effecting his removal to Iraq both compatibly with Article 3 ECHR and within a reasonable timescale, it being said that the Claimant was released one week after the Ministry of Defence (MOD) finally advised that it was unable to assist in this regard (defence paragraph 7). It is denied that in all the circumstances the claimant was detained for a period beyond a reasonable time. There is an express plea (defence paragraph 6) that it is not reasonable to expect the defendant in a case with national security implications to have had all the necessary arrangements for the Claimant's deportation in place prior to the Claimant's detention.

Removal to detention if Iraq: making arrangements to facilitate detention as incidental to the power to deport.

38. The Defendant's primary case is that given the bona fide nature of the decision in January 2005 to deport which on the evidence was "on no view" made for the ulterior purpose "so that the Claimant could be delivered into the custody of other authorities," the Defendant was entitled, when the issue was first raised in June 2005 by the Foreign Office (FCO), to seek to ensure that arrangements were made to ensure that the risks to the security interests of the United Kingdom posed by the Claimant were addressed on removal to the foreign country, and that "removal into detention" and with that "as an acknowledged purpose" would not have been unlawful. It is said that the making of arrangements "to facilitate detention" (the emphasis is that of this court) such as passing on information to the foreign country, rendering it inevitable that the person removed would be detained, would not render the deportation unlawful and the taking of steps (e.g. but not limited to the information provision) to this end is permissible as "properly incidental to the powers to deport." The fact that deportation is directed to removal and exclusion, does not render it impermissible to focus on "what will or may happen on removal" or "to make arrangements which would or might lead to detention on return" (Counsel's Note 6(d)).
39. Mr Eadie, Q.C. on behalf of the Defendant further submits, however, that it is not for this court to determine the legality of any arrangements for such transfer. He submitted -

"the question in this context is not whether it would have been lawful to deport the Claimant to detention in Iraq" since none were ever put into effect (it would have been for SIAC to have so determined if the case had ever got to a hearing whether the claimant could be legally removed) rather the issue in this context is solely whether it was "permissible in all the circumstances" for the Defendant to have considered and explored these options during the period of detention in the UK " pending the making of a deportation order."

40. Even if this court were to conclude that it would have been unlawful to have transferred the Claimant into detention on any of the bases explored this, it is said, would not render unlawful the Claimant's continued detention because it was lawful for the Defendant to take a reasonable period of time to undertake this investigation in view of the nature of the individual concerned and the security concerns posed by the Claimant to British interests from abroad if he were to join the insurgency on his return to Iraq. At the highest, it is submitted the court is concerned only with considering whether it should have been apparent to the defendant that this was so within a shorter timescale than that taken to release the claimant. Paragraph 7 of Counsel's Note reads - "it is emphasised that so far as detention is concerned, the issue is not whether there would in fact have been power to remove on this basis but whether this was an option so plainly impermissible that it should not have been explored ." This it is said would be a difficult conclusion to reach "given the serious and responsible consideration given to it and the involvement of senior and experienced Counsel from the outset."
41. The Defendant's overall position is summarised thus (in paragraph 8 of Counsel's note):

"What the SSHD did was to decide to make a deportation order on the entirely rational ground that the Claimant was a threat to national security. It was later realised that whilst this would achieve the purpose of removing the Claimant from the UK, it would not necessarily solve the problem of curtailing the Claimant's anti-UK terrorist related activities. It was therefore desirable for him to be controlled, if after investigation and seeking advice this were to be considered to be legally possible, once deported to Iraq. The preference was that the Claimant be controlled if indeed deported to Iraq. Were it to be confirmed that that was not legally possible, the preference was not to pursue the deportation; and that is exactly what happened. This is a very different proposition to that asserted by the Claimant namely the purpose of the deportation decision was simply to get the Claimant into custody somewhere other than Iraq. As to the option of detention by UK forces once the Claimant arrived in Iraq, assuming he was indeed deported, this was not an illegal proposition. In the event, the MoD was simply unwilling to co-operate for essentially political reasons."

The legal limitations on the power to make a deportation order

42. I have already set out the terms of section 3(5) and section 5(1) of the 1971 Act. In statutory terms the power to make a deportation order arises whenever the Secretary of State deems it to be conducive to the public good to remove a person who is not from the United Kingdom .
43. By the terms of section 5(1), this is a discretionary power and I accept that the decision to make a deportation order on these grounds is subject to general administrative law principles, which allow a challenge to the lawfulness of such decision on the well known principles of illegality, irrationality or Wednesbury unreasonableness or procedural irregularity [cf. Field J. in Youseff (see below at paragraph 67) – " if the challenge is not to the lawfulness of the detention but to the decision to remove or deport, it will be by judicial review and the reasonableness of the Home Secretary's view will indeed be assessed on Wednesbury principles"]
44. Miss Harrison urged upon me a general overview of the duty upon a decision maker, from which I do not dissent, if he is not to fall foul of these principles, which is to take into account all relevant considerations, "to ask himself the right question" and "take all steps to acquaint himself with the relevant information to enable him to answer it correctly" [see Lord Diplock in the Tameside case (Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014 1065B]. She further correctly drew my attention to the Immigration Rules which require that all relevant factors be taken into account before a decision to deport is reached (paragraph 364) and the specific rule against making a deportation order if removal in pursuance of the order would be contrary to the United Kingdom's Refugee or Human Rights obligations (rule 380), and the general duty in any event under s.6 of the Human Rights Act 1998 imposed on public authorities to act compatibly with Convention rights. I refer more specifically below to the effect of these convention obligations on the exercise of the power to deport.
45. In support of this general proposition of the need to apply the administrative law obligation to take into account all relevant considerations even at the stage of the decision to make the deportation order, Miss Harrison further referred me to Lord Bridge in R -v- Immigration Appeal Tribunal ex parte Singh [1986] 1 WLR 910, 919B.

… in exercising his discretion whether to implement a court recommendation for deportation or whether to make a deportation order against an overstayer, the Secretary of State is bound to take account of all relevant considerations. If therefore some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without it taking into account would in any event be open to challenge by judicial review and consequently would be open, in the case of an overstayer, to appeal under section 19(1) of the Immigration act 1971 as being "not in accordance with law" (quite apart from the immigration rules.")

46. It is also clear to me that the purpose and underlying concept of a deportation order is the enforced removal or departure of the subject person from the United Kingdom. This is clear not only from the express wording of section 5(1) but from the supplemental powers given to the Secretary of State under schedule 3 of the 1971 Act (as applied by subsection (5) of Section 5). The provisions of Schedule 3 to this Act shall have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force. Those powers include for example (under paragraph (1) of Schedule 3) the power where a deportation order is in force to give directions for the person's removal to a specified country or territory being either (a) a country of which he is a national or citizen; or (b) a country or territory to which there is reason to believe he will be admitted; and directions under sub paragraph (2) of paragraph 1 may inter alia be directions given to the captain of a ship or aircraft about to leave the UK requiring him to remove the person in question in that ship or aircraft (see paragraph 1(2)(a)) or directions for his removal in accordance with arrangements made by the Secretary of State (paragraph 1(2)(c)).
47. What a deportation order is patently not directed to is the enforced surrender or transfer of the person in question upon his arrival in the receiving country into the custody and detention of the authorities operating in the receiving country. Enforced removal coupled with such an enforced transfer or surrender into custody as a criminal suspect, for example, would be akin to the process of extradition, the effecting of which is not on any view of the law within the purposes of a deportation order.
48. I fully accept that so long as the bona fide purpose of the Secretary of State in making a deportation order is confined to the removal of the person in question from the United Kingdom as being conducive to the public good, it is to nothing, (human rights and refugee obligations apart), to the lawfulness of that order that to the knowledge of the Secretary of State the person is likely to be arrested and detained in the receiving country on the initiative of the authorities of that receiving country, as being, for example, a wanted criminal, and even where the receiving State has made a request for him and/or the UK has passed on information about his impending removal to that State which makes his detention inevitable by virtue of the existing interest of that State in that individual, or an interest generated by that information. This was clearly established by the Court of Appeal decision in R -v- Governor of Brixton Prison ex parte Soblen [1963] 2 QB 243 where for example Lord Denning said, (page 302) –

"If a fugitive criminal is here and the Secretary of State thinks that in the public good he ought to be deported, there is no reason why he should not be deported to his own country, even though he is there a wanted criminal …..Even though his home country has requested that he should be sent back to them, I see no reason why the Home Secretary should not still deport him there, if his presence here is not conducive to the public good."

49. However, Soblen is also authority for the proposition that it is no purpose of a deportation order to detain a person in order to surrender him into the hands of a foreign country as again, for example, a fugitive criminal. That particular purpose of surrender can be achieved only by the process of extradition in accordance with the requisite law governing such process. So again Lord Denning in Soblen (at page 300)

"If therefore the case were one of extradition, that is if the purpose of the Home Secretary was simply to surrender him as a fugitive criminal in response to a request of the United States, that purpose would be unlawful."

50. That determining the true purpose of the Secretary of State in making a deportation order is pivotal to the determination of the lawfulness of a deportation order in this context is clear not only from Soblen but by decisions of the European Court which exemplify the principle that deportation orders made for the ulterior purpose of facilitating the bringing of criminal charges and circumventing the extradition process would be treated as not within the powers to deport, as a misuse of those powers and hence unlawful. (See for example Bonzano -v- France (Disguised Extradition), 9 EHRR 297 ). Lord Denning in Soblen expressed the principle thus, (at page 302) -

"so there we have in this case two principles: on the one hand the principle arising out the law of extradition, under which the officers of the Crown cannot and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Act …. duly fulfilled; on the other hand the principle arising out of the law of deportation under which the Secretary of State can deport an alien and put him board a ship or aircraft for his own country if he considers it conducive to the public good that that should be done.

How are we to decide between theses two principles? It seems to me that it depends on the purpose with which the act is done. If it was done for an authorised purpose it was lawful. If it was done professedly for an authorised purpose but in fact for a different purpose, with an ulterior purpose, it was unlawful.

If therefore the purpose of the Home Secretary in this case was to surrender the applicant as a fugitive criminal to the United States because they had asked for him then it would be unlawful. But if the Home Secretary's purpose was to deport him to his own country because the Home Secretary considered his presence here to be not conducive to the public good then the Home Secretary's action is lawful. It is open to these courts to inquire whether the purpose of the Home Secretary was a lawful or unlawful purpose. Was there a misuse of power or not? The courts can always go behind the face of the deportation order to inquire whether the purpose of the Home Secretary was a lawful or unlawful purpose."

So too Donovan LJ. (at page 307) -

"the fundamental defect in this argument is that it concentrates attention on what will happen when the alien arrives at the foreign country and then relates consequence back so that the consequence is regarded as if it existed from the outset as the purpose of the operation and that gives it its true quality. In my opinion the fact that the …. applicant will serve an existing sentence ... .if he is sent back to the United States does not mean that an act which would otherwise be deportation and nothing else becomes instead not deportation but the surrender of the foreign criminal. To hold otherwise would … assent to the proposition that the quality of an act is determined by its consequence which is obviously untrue."

The human rights limitation

51. Since the enactment of the Human Rights Act 1998 there are, as already indicated, human rights limitations now introduced into domestic law upon the power to make a deportation order. A deportation order cannot lawfully be made if removal would be incompatible with the person's human rights under the ECHR, (or any status as a refugee), and thereby be in breach of the United Kingdom's obligations under the refugee or human rights conventions. Rule 380 of the Immigration Rules provides that a deportation order will not be made against any person if, "his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the convention and protocol relating to the status of refugees or the human rights convention."

Article 3

52. As regards the obligations arising under Article 3 ("prohibition of torture : no-one shall be subjected to torture or to inhuman or degrading treatment or punishment"), the decision of the European Court in Chalan -v- United Kingdom at [1996] 23 EHRR 413 at paras 74 -80, established the absolute nature of the obligation on the State not to expel a person where there have been shown "substantial grounds for believing" that the person if expelled would face "a real risk" of being subjected to treatment contrary to Article 3 in the receiving country. Thus -

74. However it is well established in the case law of this Court that expulsion by a Contracting State may give rise to an issue under Article 3 and hence engage the responsibility of that State under the Convention where substantial grounds have been shown for believing that the person in question if expelled would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances Article 3 implies the obligation not to expel the person in question to that country…….

79. Article 3 enshrines one of the most fundamental values in democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike the most substantive clauses of the Convention and of the Protocols, No's. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the Nation.

80. The prohibition provided by Article 3 against ill treatment is equally absolute in expulsion cases. Thus whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3, if removed to another state, the responsibility of the Contracting State to safeguard him against such treatment is engaged in the event of expulsion. In these circumstances the activities of the individual however undesirable or dangerous, cannot be a material consideration."

Article 2

53. Further, Article 2 which provides for the right to life, incorporates as far as the UK is concerned from 22^nd June 2004 an absolute prohibition on the imposition of the death penalty as a punishment, (following the ratification of Article 1 to Protocol 13 of the ECHR and its incorporation from that date into domestic law by Part 111 to Schedule 1 of the HRA 1998), and hence similarly gives rise to the obligation on the Secretary of State not to deport a person where there are substantial grounds for believing that if removed he would face a real risk of being subjected to such punishment in the receiving country. Self evidently such a removal in such circumstances would not be compatible with his Convention rights.

Appeals

54. Section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002, (the 2002 Act) allows for an appeal against a decision under section 5(1) of the 1971 Act to make a deportation order. Further under section 79 of the 2002 Act no deportation order may be made while such an appeal is pending to the Asylum and Immigration Tribunal (AIT). This applies equally to an appeal to SIAC, (section 2(2) of the Special Immigration Appeals Commission Act 1997). In other words the Secretary of State in the present case could not make a deportation order, (as distinct from making a decision to make such an order and giving notice of the same), until the Claimant had had the opportunity to challenge the decision to make the deportation order on appeal to the SIAC, which as already indicated he was still pursuing at the time the notice was withdrawn.
55. As regards such an appeal, the grounds of appeal allowed for under section 84 of the 2002 Act (which again is applied by section 2(2) above of the 1997 SIAC Act to a SIAC appeal ) include –

a) the decision is not in accordance with immigration rules;

c) the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellants' Convention rights;

g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights; and

Section 86(3) provides that the tribunal must allow the appeal in so far as it thinks that the decision under appeal "was not in accordance with the law (including immigration rules)." Section 87 enables directions to be given for the purpose of giving effect to any decision of the Tribunal.

56. Again, in other words the Secretary of State, in the present case, could be expected to be aware that the ongoing appeal of the Claimant to SIAC against the decision to make a deportation order would be bound to succeed if SIAC concluded, inter alia, that the Claimant could not be removed to Iraq compatibly with his Article 3 rights because there were substantial grounds for believing he would face a real risk of being subjected to treatment contrary to Article 3 or compatibly with his article 2 rights because of a like conclusion with regard to the risk of his facing the death penalty.

The power to detain pending the making of a deportation order/removal

57. The lawfulness of any deportation order or the lawfulness of any decision to make a deportation order must however in any event be distinguished from the lawfulness of the detention of a person subject to a deportation order or a decision to make a deportation order. The power to detain is not necessarily coincident with the lawfulness or continuing lawfulness of the decision to make a deportation order, although obviously cannot exist in the absence of a lawful decision.
58. As indicated, the power to detain purportedly exercised in this case arose under paragraph 2(2) of paragraph 3 to the 1971 Act, (again as applied by subsection (5) of section 5 of the 1971 Act (" the provisions of Schedule 3 to this Act shall have effect …. with respect to the detention or control of persons in connection with deportation"). Paragraph 2(2) provides that "where notice has been given to a person …. of a decision to make deportation order against him …. he may be detained under the authority of the Secretary of State pending the making of the deportation order." Similarly under subparagraph (3) of Schedule 2 where a deportation order has been made and is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom.
59. It is common ground that this power is not unfettered. It is circumscribed by what has become known by the 'Hardial Singh' principles following the judgment of Woolf J. In R. -v- Durham Prison Governor, ex parte Hardial Singh [1984] 1 WLR 704. -

"first of all it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and in the other case pending his removal. It cannot be used for any other purpose. Secondly as the power is given to enable the machinery of deportation to be carried out. I regard the power of detention as being implicitly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to exercise his power of detention. In addition I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that steps are taken to ensure the removal of the individual within a reasonable time."

60. These principles were approved by the Privy Council in Tan Te Lam -v- Tai a Chau Detention Centre [1997] AC 97, 111B –

"First the power can only be exercised during the period necessary in all the circumstances of the particular case to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorized. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps to ensure the removal within a reasonable time … in their Lordships view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances."

61. So too Lord Bingham in A at para 8 F-G, where he expressed the essential principle as being that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out.
62. In R(I) -v- SSHD [2002] EWCA Civ 888 at pares 46- 47 Dyson LJ identified four Hardial Singh principles:

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 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; and

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

63. As regards principle (iii) Lord Justice Dyson made clear that this was conceptually different from principle (ii), –

"If 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."

64. Of particular relevance to the present claim are principles (i), (iii) and ( iv). I have already made certain observations as regards the purpose of a deportation order.
65. As regards principle (iii) and (iv). I accept that what is inter alia being focused upon is whether there is a realistic prospect of the person in question being lawfully deported within a reasonable period. This must mean that the obligation is on the Secretary of State, inter alia, throughout the period of detention to use due diligence and expedition to satisfy himself that any removal will not be incompatible with a person's convention rights, and to negotiate and obtain any necessary assurances from, or to make the necessary "bespoke arrangements" with the authorities of the country into which the person is to be removed in order to obviate the risks of treatment contrary to the claimant's Article 3 (and Article 2) convention rights.
66. I observe that in RB (Algeria) -v- SSHD [2009] UKHL 10, Lord Philips at para 112 onwards, having referred to the relevant test laid down by the European Court in Chalan for ascertaining whether expulsion would violate article 3 of the ECHR, as being whether there were substantial grounds for believing that the person, if expelled, would face a real risk of being subjected to treatment contrary to article 3, went on to hold that this was a question of fact to be determined on any appeal to SIAC by that tribunal in the light of all the evidence, and that there was no principle of law that once it was accepted that there was a continuing risk of inhuman treatment in a country, that inter-governmental assurances could not be relied upon to obviate that risk unless their effect was to eliminate all risk of inhuman treatment. Although it was obvious that "if a State seeks to rely upon assurances that are given by a country with a record for disregarding fundamental human rights it will need to show that there is a good reason to treat the assurances as providing a reliable guarantee that the deportee will not be subjected to such treatment," (see Lord Philips at para 114).

The approach of this court to determining a breach of Hardial Singh Principles (ii), (iii) and (iv)

67. Where, as here, an appeal is still pending to the Tribunal or SIAC, I accept the approach to be adopted by this court on the question whether the Hardial Singh principles (ii) (iii) (iv) were ever breached, is that taken by Field J. in Youseff -v- Home Office [2004] EWHC 1884 (QB) at paras 62, and 66. (Although I accept that the power to detain did not there arise under schedule 3 para 2(2) consequent upon a decision to make a deportation order, but rather under para 16(1) of schedule 2 to the 1971 Act in respect of a person who has arrived in the United Kingdom and is liable to submit to examination to see whether he should be allowed under entry. Under Para 16(1) such a person may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter). Thus - (the emphasis is that of this court)

"Whilst it is a necessary condition to the lawfulness for Mr Youseff's detention that the Secretary of State should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to be judged is the Wednesbury standard. I say this because I can find nothing in the judgment of Woolf J. in Hardial Singh that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision maker as to the reasonableness of the executive's actions, unless there are compelling reasons to the contrary which I do not think there are. Accordingly I hold that the reasonableness of the Home Secretary's view that there was a real prospect of being able to remove Mr Youseff to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision maker, ,just as it will be the court as primary decision maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to effect a lawful return are taken in a reasonable time."

68. At paragraph 66 of his judgment Field J translated the application of this approach to the issues before him in this way, namely that the question for the court was whether during the relevant period, "the Home Secretary was reasonably of the view that there was a real prospect of removing Mr Youseff to Egypt in compliance with Article 3 ECHR and whether Mr Youseff was detained for a period longer than was reasonably necessary, having regard to the necessity of the exercise of reasonable expedition in determining whether arrangements could be put in place that would allow for it to be reasonably contended that Mr Youseff could be removed to Egypt in compliance with Article 3 EHCR."
69. At paragraph 77 of his judgment, Field J. speaks of it being for "the Home Secretary to consider whether the proposed strategy offered a realistic chance of achieving, within a reasonable period, a case for Mr Youseff's removal that stood a reasonable prospect of surviving the scrutiny by the English Court" but of course, consistent with the previous exposition of principle, it must be for the court to determine whether any conclusion that this was so was in fact a reasonable one .
70. This approach is entirely in line with that adopted by the Court of Appeal in R (A) -v- SSHD [2007] EWCA Civ 804 where Toulson LJ. at para 62 said that

"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 linked"

71. I of course take on board the observations also made by Field J. in Youseff at para 63 that in making its determination the court should make allowance for the way the government functions and be slow to second guess the Executive's assessment of diplomatic negotiations.
72. The fact the appeal in this case was still pending, although clearly relevant to (see Davis J. in R (Abdi) v SSHD [2009] EWHC 1324 para 36), cannot be decisive of the continuing lawfulness of the detention unless the fact of the appeal is the sole cause of the inability of the Secretary of State to make the deportation order and to effect the removal of the person pursuant to it. This is not being submitted in this case on behalf of the Defendant.
73. What is however being submitted on his behalf is that the fact of the ongoing appellate process in this case, where (on the defendant's case) objectively speaking the overall period detention (10 months) cannot be said to be an unreasonable period (Hardial Singh principle (iii) apart), must be relevant to the question of due diligence on the part of the Defendant. It is submitted that it must have been reasonable for the Secretary of State in this case to have addressed issues relating to the safety of the Claimant on return (which as will be seen he did not expressly begin to investigate until at the earliest the 2^nd June 2005) in the context of the appellate proceedings and the timetable laid down within it, since this issue (the national security case apart) would be the focus of the appeal when it came to be heard and determined. In this case for example, as already indicated, the notice of appeal raising human rights grounds by way of a "statement of additional grounds" was lodged on the 1^st February 2005, and the SIAC Directions, requiring that the Defendant serve open and closed material and evidence on safety on return were not given until the 5^th May, and together with a timetable which required the background material be served by the 3^rd June and the expert evidence by the 29^th July. I should say at once I reject this submission in so far as it is being asserted that prior to the directions being given there was no obligation upon the defendant to embark on any investigation into what would happen to the claimant upon return to Iraq and into issues relating to his safety. The obligation upon the Defendant under the Hardial Singh principles to use all due diligence in determining whether the removal of the Claimant could be effected within a reasonable time having regard to any risks posed to him of mistreatment contrary to his convention rights, must have arisen from the moment the Defendant took the Claimant into detention. The obligation to consider the compatibility of the deportation with the Claimant's convention rights, even before the Claimant was taken into detention, under public law principles applicable to the decision to deport and then to detain, is a matter to which I shall return in my conclusions.
74. I also accept that the availability of bail and/or the failure to apply for bail and/or any decision to refuse bail is irrelevant to the question of the legality of the detention under the Hardial Singh principles. I agree with the observations of Collins J. in R (Konan) -v- SSHD [2004] EWHC 22 (Admin), at para 30, that an adjudicator in considering a bail application is not determining (and indeed has no power to determine) the lawfulness of the detention, and in any event is unlikely to have had the material to decide whether the detention was lawful under, for example, principle (iii).

The distinction between the existence of the power to detain and the lawful exercise of that power

75. It is important to acknowledge that the so called Hardial Singh principles are concerned not so much with the existence of the power to detain as with its lawful exercise and the lawfulness of its continuing exercise. I accept that there is also a jurisdictional point to be answered by the court whenever the very existence of the power is challenged namely whether as a matter of fact there was "pending" the making of a deportation order (reference the power to detain under schedule 2 para 2), or "pending" the removal of the person (reference the power under schedule 2 para 3).
76. If for example there is no prospect at all – regardless of the time factor – of a lawful removal compatibly with the person's convention rights then the power to detain cannot arise or continue to exist. Conversely if there remains some prospect of lawful removal being achieved, for example through finally obtaining satisfactory assurances or a satisfactory "bespoke package", albeit not within a reasonable time frame, then although it would be unreasonable and contrary to the Hardial Singh principles to continue to exercise the power of detention, it does not follow that a decision to maintain the decision to make a deportation order is necessarily unlawful, or the power to detain does not exist .
77. This distinction is brought out by two decisions to which I was referred by Ms Harrison. The first is that of the Privy Council in Tan Te Lam -v- Tai a Chau Detention Centre [1997] AC 97 in which the court held that there was no power to detain at all, expressing the principle thus at 113D -

"… The issue therefore is whether the determination of the facts relevant to the question whether the applicants were being detained "pending removal" goes to the jurisdiction of the director to detain or the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending within the meaning of section 13D, the director has no power at all …"

78. The second is that of the House of Lords in R (Khadir) -v- Home Secretary [2006] 1 AC 207 and the exposition of principle by Lord Brown. Again this was a decision concerning an analogous power to detain given to immigration officers under paragraph 16 of Schedule 2 "pending" his removal under removal directions. An important exposition of principle appears in the judgment of Lord Brown at paragraphs 32 and 33:

32. The true position in my judgment is this. "Pending" in paragraph 16 means no more than "until" …. The paragraph does not say that the removal must be "pending" still less that it must be imminent. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (i.e. throughout the whole period until removal is achieved). But that does not mean that the power has lapsed. He remains "liable to detention…"

33 To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot); nothing about its existence. True it is in Tan Te Lam, the Privy Council concluded that the power itself had ceased to exist. But that was because there was simply no possibility of the Vietnamese Government accepting the applicant's repatriation. It was effectively conceded that removal in that case was no longer achievable. Once that prospect had gone, detention could no longer be said to be "pending removal" (emphasis of this court).

THE PRESENT CASE

79. I turn to the history of the deliberations undertaken by the Defendant during the currency of the appeal process and before the decision to withdraw the notice of decision to make a deportation order, was made.
80. The first matter of note is that the evidence is compelling that the Secretary of State did not expressly apply his mind to what would happen to the Claimant on his return to Iraq and whether he should be returned into some kind of detention and to any assessment of the risks to the Claimant's safety on return in these circumstances, or to the necessary arrangements and safeguards required if the Claimant was to be returned safely compatibly with his convention rights, until at the earliest the beginning of June 2005 when the defendant wrote a letter to the Foreign and Commonwealth Office (FCO) dated the 2^nd June 2005.

The letter of the 2^nd June 2005.

81. The background to that letter is that Directions had been given (by order of 5^th of May2005 by SIAC that the Defendant serve background material on safety on return by the 3^rd June 2005 and any expert evidence on safety on return by 29^th July 2005. The letter asked if :

"enquiries could be made with those that might be able to assist the Home Office in obtaining –

information relating to what treatment an insurgent might face if handed over to the Iraqi authorities on return;

a report possibly from someone based at the embassy in Bagdad about the situation on the ground at the moment and any information on how insurgents are being treated by the Iraqi authorities, the British and the American troops out in Iraq;

the courts have asked us to submit information relating to these matters by the 20^th July 2005. Therefore if possible we would appreciate a response during the first week of July"

82. That this was the beginning of a process being undertaken by the Defendant expressly into what might happen to the Claimant upon his removal to Iraq is further reflected in an email sent about this time by the Defendant to the Foreign Office concerning their contacting the British Embassy in Iraq to obtain a report about insurgents. This email contained the following passage:

"The Home Office IND is currently looking at the possibility of deporting an Iraqi individual, assessed to be involved in insurgency activity, to Iraq. However before doing so we need to ascertain what treatment they might face if they are handed over to the new Iraqi regime."

The highlighting is the emphasis of this court.

83. I am fortified in the view that this was the first occasion that these issues were expressly raised within the Defendant by the response of the Defendant to the grounds of appeal through the witness statement of Nicholas Troake dated the 23^rd of May 2005 in which at paragraph 7 the following appears:

"(the claimant) contends that the decision …above breaches his rights under the European Convention on Human Rights . He has indicated that he relies upon Articles 2, 3, and 8 ECHR but has not explained in what respects the decisions under appeal have infringed any ECHR rights. The Secretary of State has considered these statements in the light of his decisions to refuse and deport (the Claimant) and does not consider that his actions violate any of the articles (the Claimant) has cited."

84. This statement is no doubt the basis of that which has been subsequently written in a draft witness statement of David Buckley on behalf of the Defendant dated 9^th February 2009. This statement was in response to a court order for disclosure of (inter alia) "(g) documentation setting out the considerations and the basis as at the end of May 2005 on which the Secretary of State has concluded that deportation would not risk a violation of Articles 2, 3 and 8 EHCR as referred to in the witness statement of Nicholas Troake (23 May 2005)" Mr Buckley stated at paragraph 12 of his statement that:

"With regard to paragraph 1(g) … there is no documentation available. My understanding is that (the Claimant) raised articles 2, 3, and 8 of the European Convention on Human Rights in his grounds but did not articulate this alleged breach on return to Iraq to any specific event, location or entity. Therefore further consideration was unable to be undertaken on these allegations, resulting in a conclusion that no such risk on return existed"

85. Thus at paragraphs 8 and 9 of Mr Buckley's witness statement in these proceedings the following appears:

"8. The claimant contended that the decision (to detain pending the making of a deportation order) … breached his rights under ECHR particularly Articles 2, 3 and 8. Upon consideration of the Claimant's appeal, the Defendant was satisfied that his decision did not violate any of the articles cited by the Claimant.

9. The defendant was also satisfied after taking into consideration all the circumstances known to him that deportation of the Claimant from the United Kingdom was the right course of action."

86. In effect the evidence appears to establish that up until the 2^nd June 2005 the defendant's officials were proceeding on the basis of an unsupervised "ordinary" deportation in which the Claimant would simply be put at liberty on removal to Iraq, and on the basis that on that scenario no risk to the Claimant's safety existed given the lack of particularity in the Claimant's grounds of appeal.
87. I should record at once however that the evidence does not establish that the Defendant ever took a conscious positive decision that the Claimant should be the subject of an unsupervised return in which he would be simply set at liberty or that he ever took a conscious positive assessment as at the 26^th January (the date of the decision to make the deportation order and the date of the decision to detain) of the risks to the Claimant if he were to be returned to Iraq. It is known that there was a meeting to discuss the claimant's case on the 14^th December 2004, of which no record exists and submissions made to the Defendant by his officials on the 21^st December 2004 and 14^th January 2005 which lead to the decision of the 26^th January being made. The disclosed documentation material to these submissions is entirely silent on these matters and it must be a reasonable inference to draw that the decision of the 26^th of January was made exclusively on grounds of national security.
88. The highest that it can be put on behalf of the Secretary of State as regards consideration prior to June 2005 of the claimant's safety on return is that it can be assumed that his officials were aware that the Claimant's application for asylum based on a claimed refugee status had failed, that the Claimant had raised unparticularised grounds of appeal against the deportation decision based on Article 3 and Article 2, and there was, as Mr Eadie submitted, institutional knowledge within the Defendant's department of conditions in Iraq. It is be noted that within the SIAC proceedings Mr Troake in a witness statement on behalf of the Defendant "in order to set out the information available to the Secretary of State as to current conditions in Iraq" states in paragraph 2 :

"The Secretary of State took into account the information in the following documents:

(a) The Joint British Danish fact finding Mission to Baghdad ans Ammam on Conditions in Iraq 11-18^th September 2008;

(b) the Home Office Country Information and Policy Unit Country report dated April 2005 (although this report was written after the date of the Secretary of State's decision ,he is aware of the content of the report);

(c) the United States Department of State Country Report on Human Rights Practices 2004 ( Iraq )".

89. In contrast, is now admitted by the defendant, in an admission dated the 3^rd July 2009, "that at all material times in the circumstances of this case, the claimant could not have been returned under the MOU; at all material times a bespoke arrangement was required."
90. There is however no suggestion in the records that any consideration was given to the need for such bespoke arrangements prior to June 2005. Indeed everything in the internal documentation of the Defendant, suggests that it took some weeks after the letter of the 2^nd of June, for the idea of needing to seek such bespoke arrangements, to emerge within the Defendant's department. And this was always in the context of the particular arrangement under consideration whereby the Claimant after would on removal to Iraq immediately be taken into the custody of the Iraqi authorities.
91. Thus in a submission to the Home Secretary of the 12th June 2005 on the issue whether to oppose the Claimant's application for bail, an official only tentatively raises the issue of the need to seek assurances (again the emphasis in the following quotation is that of this court) in the following terms :

"although this can be dealt with at the hearing (a bail application not being the appropriate forum for a discussion of the wider case) there is a serious question surrounding what will happen to him in Iraq if successfully deported: it may well be that that we will have to seek assurances from the Iraqi authorities as to treatment, including whether or not he will be handed over to the Americans."

92. It was only on the 5th July 2005 in a submission from an official on an issue described as "Advance notice of possible difficulties re continued action to remove … Iraqi nationals believed to be involved in the insurgency," that the issue of bespoke arrangements was raised apparently following counsel's advice ("Counsel have asked about the possibility of whether a 'bespoke' arrangement could be reached for this individual in which we obtain from the Iraqis assurances for his humane treatment which can be monitored on an ongoing basis") and it was only positively identified as necessary within the Home Office on the 20^th July 2005 in the submission to the Home Secretary of that date ("any arrangement to remove (the Claimant) to Iraq would have to be a special package, designed specifically to take account of the special circumstances of his case, including agreement with the receiving authority on treatment (including death penalty questions) access by British officials and guarantees of future treatment. It may be we cannot ensure success before SIAC but we must make every effort"). The submission of the 20^th July was the first detailed submission on the available options.
93. The order recording the Admission referred to above, is the order of this court of the 3^rd July 2009. This was an order made upon a disclosure application made by the Claimant. The Order reads in its first paragraph:

'1. Upon hearing Counsel for the Claimant and for the Defendant and upon the Defendant admitting that "at all material times, in the circumstances of this case, (the Claimant) could not have been returned under the MOU; at all material times a bespoke arrangement was required," no order needs to be made on application for specific disclosure of the Memorandum of Understanding and the 'Baghdad Egram'.'

94. The reference to the MOU is to a Memorandum of Understanding signed by the Iraqi Interim Government for return of failed asylum seekers to the Kurdistan Regional Government Area (KRG). By the Admission, it is now conceded by the Defendant that this MOU could never have been applied to the claimant., although the letter to the Home Office from the Foreign Office of the 29^th June replying to the enquiry of the 2^nd June did raise it as a matter for consideration, albeit in discouraging fashion:

"A memorandum of Understanding was signed with the Iraqi Government on 26^th January 2005 in which it was agreed that we could begin an enforced returns programme. The MOU allows for the return of failed asylum seekers in small batches of 15-20 and only to the KRG area. In informal discussions between the then Minister of Migration and Displacement and the Home Office it was agreed that no criminals would be sent back in the first batches of returnees. If this case is to be considered within the enforced returns programme then we have contradictory elements within the policy. Under the terms of the MOU we agreed to provide the Iraqi and KRG authorities with a list of those we intend to remove two weeks in advance of the proposed removal dates."

The intention to deport but only if it could be into custody/detention

95. What happened after the initial inquiries of early June 2005 is clear. The view was formed by the Defendant that if the claimant was to be removed to Iraq, it would have to be into some kind of detention given the concerns about his support for the insurgency. What occurred in the weeks and months until the date in late November when it was decided not to pursue the deportation and to release the claimant from administrative detention was that a range of options were explored by the defendant but all directed at one aim: to see whether an arrangement could be made whereby the Claimant would be returned to Iraq into conditions of detention.- either by the Iraqi forces themselves or by the US or UK forces stationed in Iraq.
96. This is in effect admitted in the defence at para 5(i) following the introductory averment in para 5 to which I have already referred.

" … it is averred that it was open to the Defendant to seek to determine whether arrangements could be put in place that would allow for it to be reasonably contended that the Claimant could be removed to Iraq both in compliance with Article 3 EHCR and with proper regard to the fact that the Claimant was believed to have provided material support to the insurgency, assisted known terrorists, associated with a number of individuals within the UK operating to a similar extremist agenda or linked to Al Qaida and judged to be a threat to national security. The Defendant did take such steps and acted with due diligence and expedition in doing so:

(i) It was clear throughout that returning the Claimant unsupervised to Iraq would not have been desirable, due to the assessment that he would have joined the insurgency. Possible options investigated by the Defendant were the detention of the Claimant in Iraq by US/UK forces or by the Iraqi authorities.

97. I stress the expression "into conditions of detention". Although the pleaded defence speaks only of it not being "desirable" for the Claimant to be returned "unsupervised", the evidence is in my judgment compelling, and I so find as a fact, that once the Defendant began applying his mind to what would happen to the Claimant on his return to Iraq then, unless it could be guaranteed to the Defendant that upon removal to Iraq the claimant would be taken immediately into detention by some authority be it the Iraqis or the armed forces of the US or those of UK, the Defendant had no intention of proceeding with the deportation.
98. This is best evidenced by the decision in November 2005 not to pursue the deportation once the Defendant finally accepted that there was no viable "detention in Iraq option" available. By that date, as will be seen, the only live option still being pursued was that of the removal of the Claimant into the custody of UK forces but this required the agreement of the Ministry of Defence (MoD) which however the MoD had persistently refused to give, a stance reiterated in a letter of the 16^th November. This formed the basis of the submission to the Home Secretary by officials of the 18^th November that "the only serious option in (the Claimant's) case now is to withdraw the decision to deport and release him from immigration detention into police custody to allow the police to interview him ... ," which the defendant accepted.
99. However such an intention or lack of intention to remove absent such a guarantee is evidenced much earlier in the history of the submissions made within the Defendant's department and the communications between the defendant and the other material government departments (the FCO/the MoD) from June 2005 onwards.
100. On the face of the available evidence, this appears to be an intention which "emerged" once deeper thought had been given to the question than had hitherto been the case from the beginning of June 2005. Thus in the Open Statement objecting to the Defendant's application to bail dated the 16^th May 2005, to which I have already referred, there is the first indication that the intention was for a "supervised return" to the authorities in Iraq albeit the need to ensure detention is not expressly stated as opposed to an oblique reference to what the Iraqi authorities might be expected to do.

"13 …However the intention when (the claimant) is removed to Iraq (if his appeal fails) would be to remove him with the knowledge of the relevant authorities in Iraq so that those authorities could deal with him in accordance with their legal system and/or monitor him to deal with any security threat he posed there."

101. It will be recalled that the letter from the Home Office to the Foreign Office of the 2^nd of June had in contrast referred to the position of an insurgent "if handed over to the Iraqi authorities on return" which would indicate that by then a much more positive "removal into detention" was being contemplated.
102. The first explicit expression of the need to ensure detention would appear to have originated within the Foreign Office. Thus on the 29^th June 2005 (in an apparent reply to the request of the 2^nd June ("you asked for some information on deporting an Iraqi Insurgent from the UK to Iraq") the Foreign Office refer to the need for safeguards returning someone who it was believed would join the insurgency by which they patently mean returning the person into some kind of detention. [" We would clearly not want to return someone without safeguards who we believe would join the insurgency. If he has committed offences under Iraqi law then we would need to consider handing him over to the Iraqi authorities. If he poses an imperative threat to stability and security in Iraq then he could be detained by the multi national force) (Security Council Resolution 1546 authorises internment by the MNF (but not the Iraqis) as a security internee." )]
103. Then in the official's submission to the Home Secretary of 5^th July 2005 it is recorded that "The FCO's view is that this individual should not be returned to Iraq if he would be released and therefore free to support the insurgency in Iraq. This means that the FCO could only support his return if he were removed in such a way that he could immediately be taken into custody in Iraq. This would essentially mean that he would be returned in such a way that he could be taken into the custody of either (a) the Iraqi Government), (b) UK forces in Iraq; or (2) US forces in Iraq. However none of these options is without significant problems."
104. This stance is then taken up within the Home Office in the submission to the Home Secretary of 20^thJuly 2005, under the heading "UNSUPERVISED RETURN":

"all interested parties dismiss this option because of his activities, (the claimant) cannot be left to his own devices and will need to be returned to some form of custody. Simply returning him without controlling him on arrival is pointless: he will simply join the insurgency."

105. That the Home Secretary accepted this submission is evidenced by his personal letter to the Foreign Secretary dated 27^th July 2005 in which he wrote inter alia (again the emphasis is of this court )

" … I intend to pursue deportation action against this individual. However there are a number of difficulties in pursuing deportation to Iraq. To ensure that (the Claimant) does not re-engage in his insurgency activities he needs to be deported to custody in Iraq. In order to satisfy the courts that this individual can be deported to Iraq we need to show how we intend to remove him to Iraq and how we then intend to detain him, whether this be with the Multi-National Force or Iraqi custody."

106. Thereafter similar statements of intent appear, both within and without the Defendant's department, for example:

- in the internal FCO submission to the Duty Minister of the 9^th of August 2005 on how to respond to the letter of the 27^th July : "Officials have agreed that (the Claimant) should not be deported if that were to result in him being free to continue his anti-coalition activity in Iraq. We should only pursue deportation if we can ensure that he will be taken into custody in Iraq …";

- in the Duty Minister's letter of response to the Home Office Minister of 10^th August 2005 : "Our officials have agreed that (the Claimant) should not be returned to Iraq unless we can be sure that he is not free to carry out anti-coalition activities here. The only way to achieve this is to be sure that he will be taken into custody immediately on his return.";

- the witness statement of Nicholas John Troake, Grade 7 Civil Servant in the Immigration and Nationality Department of the Home Office, of the 19^th September 2005 ,within the SIAC appeal proceedings, at paragraph : 3: " … the Secretary of State for the Home Department has concentrated his efforts on arrangements for the safe return of (the Claimant) to Iraqi custody in Iraq";

- the submission to the Home Secretary of 2^nd September 2005: "(i) unsupervised return this has been discounted. It is not currently possible to return (the claimant) to Iraq via the enforced returns programme and the assessment is that if he were allowed to return unsupervised he would simply join the insurgency;"

- the Home Office speaking note attached to an email of 28^th September 2005:

"(Claimant) … Needs to be returned to custody in Iraq, to possibly face trial in an Iraqi court or he will re-engage in insurgency activity;

The preferred route of return for this individual would be to Multi-National Force (MNF), British (Not US) custody with a view to transferring him to Iraqi custody as a criminal suspect (possibly to face trial), once the appropriate arrangements and assurances have been made " ;

- 20^th October 2005 email within Home Office reporting what the MoD were going to say in a letter to be sent over that morning: "Main point – MoD will say that they are happy to help with returns but that they cannot guarantee continued internment within Iraq. … Their view is that this will have to be a separate decision for the GOC in Iraq who will need to take a view on the situation on the ground and the threat the individuals pose there ...";

- 21^st October 2005, paragraph 4 of submission to Home Secretary: "as you are aware from previous submissions … we have discounted return to Iraq unsupervised and return to US custody in Iraq and have been concentrating our efforts on negotiations with the Iraqi Government (for a return to Iraqi custody) and negotiations with the MoD for a return to British custody."

107. Although the Defendant's pleaded defence is simply (at paragraph 5(i) of the defence) that (any emphasis is that of this court)"it was clear throughout that returning the Claimant unsupervised to Iraq would not have been desirable, due to the assessment that he would have joined the insurgency" and that "possible options investigated were the detention of the Claimant in Iraq by US/UK forces or by the Iraqi authorities." I am satisfied on the evidence that from the moment the Defendant applied his mind to the question of what would happen to the Claimant on his return to Iraq, the intention was formed not to return him if the only route were an unsupervised return by which was meant a return which did not involve the guaranteed return of the Claimant into some kind of custody in Iraq. There had to be a guarantee that the Claimant would not be released on his return to Iraq and thereby free to join the insurgency which the evidence available to the defendant suggested would otherwise be likely to happen. In other words the understandable assessment was made that it would not in fact be conducive to the public good (of the United Kingdom) to deport the Claimant if he were simply set down at liberty in Iraq.
108. At the latest this intention was formed by the 20^th July 2005, the date of the first detailed submission to the Home Secretary of the options available for the return of the Claimant to Iraq. As from this date it is clear to me that the Defendant did not deviate from the position that the Claimant if he was to be removed to Iraq would have to be removed into some form of custody and all the energies of the Defendant were directed to seeing whether some such arrangement could both be practicably and legally engineered within a timescale which did not offend the Hardial Singh principles.
109. I should add that I accept that at all times from June onwards the Defendant was conscious of the Hardial Singh principles. Thus in the submission to the Home Secretary of the 5^th July, the official had advised that:

"The FCO, MoD and Country Action Team will be providing fuller advice in the next few days which I will submit in detail. The security service have indicated that they will seek a control order if it were no longer possible to detain (the claimant) pending deportation. The power to detain under immigration powers lapses immediately it becomes clear that removal is not a possibility. Whilst this is not yet the position you should be aware of developments and that you could be asked to make the decision on deportation and control order simultaneously."

In the submission of 21^st October it is said:

"We are reaching the point where SIAC may very well conclude that deportation is not currently a practical or reasonable prospect … and take steps to end (the claimant's) detention. More importantly, to detain (the claimant) beyond the point where we do reasonably consider that he can be deported within a reasonable period of time would be unlawful and could give rise to a claim for damages."

110. By "legally" in paragraph 108 above, I include the need recognised within the Home Office to ensure that any such removal into the custody of an authority in Iraq was not incompatible with the UK's obligations under the ECHR, in particular Articles 2 and 3. That this need was recognised is again much evidenced in the internal memoranda and communications as between the Home Office other government departments. Thus as regards any removal into Iraqi custody, the need for a bespoke package was identified in the submission of the 20^th July and the request of the Home Secretary to the Foreign Secretary of 27^th July expressly sought assistance on this matter:

"I would be grateful if you could ask your officials to investigate the possibility of a bespoke package being put together for this individual to take place any such package needs to be prepared considering the effect any course of action might have on the individual to ensure that there is no infringement of the ECHR, specifically in relation to Article 3 … In addition the package should fully consider all other implications such as the political and legal implications of any such action.

111. But it is important to stress for present purposes the only reason that the Defendant considered that there was a potential for Article 2 and 3 to be engaged in this contemplated removal was because of the predetermined contemplation that the Claimant should not simply be removed to Iraq and there set at liberty but that he should be removed and returned into, amongst other potential forms of detention, the custody of the Iraqis. The Defendant's concern for this issue was not incidental to the decision to deport, i.e. remove, but rather was incidental to the different course of action being contemplated, namely the return of the Claimant into Iraqi custody.

The Submission of 20^th July

112. Thus the submission of the 20^th of July contained the following which expressly shows that the need for them is and was predicated upon a return into Iraqi custody:

First, under the heading RETURN TO IRAQI CUSTODY:

"16. The claimant cannot be held by the Iraqis as a security detainee because there is no power in law for them to do so. There is a possibility that he could be held there as a criminal suspect. The usual way would be by extradition as we have an extradition treaty dating from 1932.

17. Any sort of detention by the Iraqi authorities would be very likely to engage Article 3 ECHR. There are real concerns about the prospect of (the claimant) being held in one of the centres run by the Iraqi Ministry of the Interior in which torture and abuse are believed to take place. The Iraqi Ministry of Justice has a better human rights record in that it is trying to prevent acts of torture being carried out in its detention facilities. However the FCO believes that the Iraqi Police and (perhaps the Iraqi National Guard) in some areas carry out extra - judicial killings - of amongst others suspected insurgents picked up in operations. There could therefore be a real risk that he could be mistreated if returned to Iraq."

Secondly, under the heading "BESPOKE ARRANGEMENTS":

"23. Any arrangement to remove (the Claimant ) to Iraq would have to be a special package ,designed specifically to take account of the special circumstances of his case ,including agreement with the receiving authority on treatment (including death penalty questions) access by British officials and guarantees of future treatment. It may be we cannot ensure success before SIAC but we must make every effort.


24. The main obstacle to any return to Iraqi custody is that the Iraqi Government does not currently have the legal power to detain a person without trial and unless and until that changes, it does appear that we cannot currently return him to an internment regime. This aspect requires further research but any arrangement would depend on assurances which could be regularly monitored by the Iraqis on his humane treatment. The UK has a memorandum of understanding with the Iraqi authorities under which they are committed to humane treatment to criminal suspects handed over to them by British troops. This is not legally binding but does give an opportunity to raise questions of ill treatment with the Iraqi authorities although whether the MOU could be applied to this particular individual will depend on the exact circumstances of his detention in Iraq. To seek to agree a more elaborate package for (the Claimant) including allowing the UK regular access to him to monitor his treatment and conditions would be dependent on the goodwill of the Iraqis. The practicalities of actually monitoring him regularly are likely to be extremely difficult. Any journey by Embassy Staff outside the International Zone in Bagdad would require considerable forward planning and security arrangements."

Return as a criminal suspect

113. I use the word "engineered" in paragraph 108 above advisedly. In the context of Iraqi detention, it was recognised early on that the Iraqis had no power of internment and the only way in which the Iraqis could lawfully (under their domestic law) take the Claimant into their custody was as a criminal suspect which in turn meant that the Iraqis needed information/evidence upon which to base a criminal charge.
114. However it is clear that as at the 20^th July when the first detailed submission on the options available for the return of the Claimant was put up to the Home Secretary, the Iraqis were in possession of no such evidence/information and indeed the Claimant was not a person in whom they had hitherto shown any interest. The Defendant thereafter had to grapple with he problem that such information would have to come from the United Kingdom which might be difficult to do for security reasons and furthermore it would be the United Kingdom who was going to have to take the initiative to trigger the interest of the Iraqis in the Claimant for the purposes of their instigating criminal process against him.
115. The Foreign Office had already expressed their view (in the undated extract attached to the submission of the Home Secretary of 5^th July) that "it is not clear on what basis the Iraqi authorities would be able to hold him. The Iraqi government (unlike the Multi-National Force) does not have powers to intern security threats and they are therefore likely look to us to provide evidence so that they could hold him as a criminal suspect. Given the nature of the evidence in this case, we are unlikely to be able to provide it to the Iraqi authorities. On the other hand we would not wish to be seen as encouraging the Iraqi authorities to hold him without proper authority", and the submission of the 20^th of July advised the Home Secretary in more than one place that the usual way for return as criminal suspect into the custody of the Iraqis pursuant to their criminal process, would be by way of extradition. Thus:

"8. Because of the nature of his activities, it only makes sense for (the Claimant) to be returned if we can be sure that he will not simply be set free to re-engage in the insurgency. …There are three possible detaining authorities in Iraq: the Iraqi Government, which does NOT have power to detain as a security internee, but may be able to do so as a criminal suspect (if so extradition would be the proper course … ) ...the emphasis of the court). …

16. (The Claimant) cannot be held by the Iraqis as a security detainee because there is no power in law for them to do so. The usual way to return would be by way of extradition as we have an extant extradition treaty dating from 1932."

116. The position was summarised as at the 2^nd September 2005 in a submission to the Home Secretary in these terms:

"(iv) return to Iraqi custody in Iraq. Hazel Blears wrote to the FCO seeking their assistance on 27^th July. The Foreign Office have made preliminary contact with the Iraqi authorities who have not yet provided a formal response. The Iraqis have no power to hold (the Claimant) as a security detainees and will only be able to detain him if we are able to supply them with sufficient evidence to establish that he has committed an offence under Iraqi law. Any negotiations are likely to take a long time. It may prove difficult to supply the Iraqis with sufficient evidence since the Security Service may be unable to disclose their full security case."

117. This aspect of the return into Iraqi custody as a criminal suspect was separate from the other need highlighted in that submission if the Iraqi option were to be pursued, namely "we will also need to obtain adequate human rights assurances before we could transfer him into Iraqi custody. The difficult security situation in Baghdad is a further complicating factor preventing rapid progress."
118. Emails passing between the Home Office and FCO officials on the 29^th July 2005 demonstrate that they were now "treating this as a criminal case" and the defendant was actively trying to obtain sufficient information on the claimant which could be passed on to the Iraqis by the FCO so as to give the Iraqis "some basis for arrest and detention." Discussion was had about police to police contact, whether it should be the British police or the FCO "contacts" who should liaise with the Iraqis, the view of the Home Office official being that that it should be the latter since the British police "have not really been involved in this case so I don't think it will be possible for them to liaise with the Iraqi police on the this matter as there is no criminal conviction to date or pending."
119. The FCO had previously emailed in terms which patently demonstrate that what was under active investigation in this context between both the Home Office and the FCO was how to facilitate a criminal process against the Claimant in Iraq by the Iraqi authorities which would then allow the Claimant to be returned to the Iraq to be taken there into custody by the Iraqis as a criminal suspect. Thus the FCO email reads:

"We have discussed. We are ready to investigate a bespoke package with the Iraqis as requested. As we are treating this as criminal case, we believe that this will best be done initially on a police to police basis. We have UK police in Basra who should be able to do this. Once the possibility of prosecution in Iraq is established we shall be able to explore the sorts of guarantee we need before handing him over.

We cannot however approach the Iraqis on a hypothetical basis. The first question they will ask is whether we have evidence of criminal activity that could form the basis of prosecution in Iraq. Grateful if you could provide us with sufficient material to enable our police to begin discussions. You might consider now involving the police directly to facilitate the process.

Simultaneously we and the police will want some assurance that the UK military will be content to handle his transfer to Iraq and custody pending his transfer to the Iraqis, should this be necessary. We will presumably have to draw up some contingency plan in the event that the transfer to the Iraqis falls through and he remains in UK military custody in Iraq."

120. The e mail from the HO in response (29^th July 2005) was as follows:

"I am currently trying to obtain information on (Claimant) which you would be able to pass to the Iraqis. However although this may give details on what is alleged he has been involved with, criminality in the broader context of the word, he has not actually been convicted of anything. I am also trying to obtain evidence to back these allegations, which might assist with any court trial, although it is likely to be very limited if at all … we will try and provide info to give some sense of what he has been up to in Iraq, to give the Iraqis some basis for arrest and detention."

121. I say at once that this evidence in my judgment points only to one conclusion that the option here being explored pending the making of any deportation order was whether arrangements could be made to ensure a criminal process was brought by the Iraqi authorities against the Claimant which would enable the Iraqis to take him into immediate custody on his return. That what was contemplated was not simply the provision of information to the Iraqis "in the hope or expectation" that criminal process might follow, is demonstrated by the concern expressed in the various communications that assurances should be obtained from the UK military that not only would they be content to handle the transfer i.e. the removal to Iraq but also to take the Claimant into their own military custody pending his transfer to the Iraqis and moreover that some contingency plan would have to be put in place if the transfer to the Iraqis fell through and the Claimant were to remain in military custody in Iraq. I cannot hide from the conclusion that the option here bring explored as far as transfer into Iraqi custody was concerned was how to arrange and secure that criminal proceedings would be brought against the claimant by the Iraqis.

The chronology of the exploration of the options

122. I turn to consider in a little more detail the history of the outcome of the Defendant's investigations. As already indicated, three options were actively under consideration : (a) return to Iraqi custody, (b) return to the custody of the Us forces in Iraq US and (c) return to the custody of UK forces in Iraq. As has been seen, theses options had been originally flagged up by the FCO in response to the initial inquiries of the 5^th June but had been in effect adopted by the Defendant following the detailed submission to him of the 20^th of July. They were thereafter pursued through advice and submissions from officials, through inter departmental negotiations between the Defendant's department and both the Foreign Office and the Ministry of Defence, and through advice taken from Counsel. The history after the 20^th July is that of the Defendant discovering the practical and legal difficulties in pursuing any of the options which ultimately led to the decision not to pursue deportation. By the middle of November 2005 it is conceded by the Defendant that there was no realistic prospect of removing the claimant within a reasonable timescale. As already indicated, in paragraph 15 of his defence the Defendant avers that "the Claimant was released from detention promptly when it became apparent that there was no longer any realistic prospect of effecting his removal to Iraq both compatibly with Article 3 EHCR and within a reasonable time scale." The Claimant was released from detention one week after the MoD finally advised that it was unable to assist in this regard. But of course one of the issues raised in this claim is whether the Defendant operating under the requirements of all reasonable expedition and due diligence should have identified at an earlier point than November 2005 that there was no reasonable prospect of return.
123. In these circumstances I turn to the practical and legal difficulties which each option entailed and the timetable as to when this emerged.

Return to the custody of US Forces quickly discounted

124. It is clear that return to the custody of the US forces was quickly discounted. The FCO view sent to the Home Office in early July (5^th July) was that this was an alternative "more theoretical than real" because of human rights concerns surrounding interrogation techniques and potential transfer out of Iraq to "extraordinary rendition." In the submission of the 20^th July to the Home Secretary the concerns of the FCO were highlighted and the option described as "unlikely." The position was summarised as at the 2^nd September 2005 in the submission of like date to the Home Secretary:

"(ii) return to American custody. This too has not been pursued on the grounds it would involve us defending the American Human rights position (which the FCOs questionable) in court and could become politically embarrassing. The British authorities in Iraq have so far refused to transfer detainees from British to American custody pending the conclusion of an MOU guaranteeing humane treatment and we would need assurances from the US authorities that the Claimant would not be subject to "extraordinary rendition" to Guantanamo Bay. We have discounted this possibility but would be grateful if you could say you think we should be pursuing this option."

The remaining options

125. By the end of August 2005 the (position had been reached that) both the Foreign Office and the Ministry of Defence had been approached by the Defendant seeking assistance and each had responded in a way which did not augur well for a return within a reasonable time based on the remaining two options of transfer into Iraqi or British custody.

The Iraqi option removal into Iraqi custody: the need for return as a criminal suspect and moreover a bespoke package to protect convention rights

126. The Foreign Office, as already indicated, had been approached for assistance in (i) negotiating a bespoke package with the Iraqis to obviate the risk of mistreatment of the Claimant if he were returned into Iraqi custody (ii) in facilitating the return of the Claimant into Iraqi custody as a criminal suspect. I have already identified the problems raised within the contemporaneous documentation both internal within the FCO and external in its communications with the Home Office in effecting either of these aims, namely the need to supply the Iraqis with sufficient evidence to establish an offence under Iraqi law and the difficulties in negotiating a reliable bespoke package, with the opportunity to monitor and verify the Claimant's condition at regular intervals, within a reasonable timescale, the timescale being hampered by the security situation in Iraq. In a letter of the 10^th August 2005 to the Home Office Minister of State, the FCO Minister had written inter alia in these terms:

"I have asked my officials to prepare the ground in general with the Iraqis. Our embassy in Bagdad will be talking to the Iraqis in the next few days, but before they can begin negotiating a bespoke package they will need more detailed information about (the claimant) and his activities in the UK and Iraq which can be shared with the Iraqis. We need the Home Office to provide this

The negotiation of such a package may take such time and we will want to be sure we receive the required assurances from the Iraqis. This will take time. We will do the best we can to make progress. But even if they are receptive – we are most unlikely to conclude an agreement in the next few weeks."

The British Forces Option

127. The option of transfer into British Forces custody required the co-operation and agreement of the Secretary of State for Defence. On the 20^th August 2005 the MoD, through the Minister of State, had written to the Home Office Minister stating that the "deportation of (the Claimant) to UK custody MND (Multi-National Division) (SE)" was "not feasible" "for a combination of legal and presentational reasons," and the most that the MoD could offer was assistance with air transport. The explanation given was in terms which reflect the earlier view expressed by the FCO in early July and repeated in he submission to the Home Secretary of the 20^th July which in effect rehearse three main points: first that the transfer into custody, which would be a form of internment, could not be guaranteed because only the GOC could make the decision on the ground in Iraq whether the claimant was an imperative threat to coalition forces in Iraq; secondly such a transfer into internment would be open to legal challenge both under Article 5 and on grounds of abuse of power; thirdly presentational difficulties – ( "detention in British sector could be seen something of a 'Guantanamo')."
128. The letter said in particular:

"More seriously, internment of (the claimant) by UK forces could give rise to accusations that the UK transferred (the Claimant) to Iraq to facilitate his detention. Besides the difficult presentational difficulties this could potentially leave us exposed to a challenge under Article 5 of the European Convention on Human Rights and a claim that the decision to intern was taken for improper reasons. Such a challenge could undermine the power of internment, which is an important measure for protecting UK personnel, Iraqi security forces and Iraqi civilians."

The draft of the letter prepared by officials had included this passage:

"I am also keen to ensure that the MoD is not seen to be expediting the transfer of an individual to a more permissive legal framework that affords them less legal protection than they might enjoy in the UK and which permits detention that would be unlawful in the UK. Besides the difficult presentational implications this could potentially leave us exposed to a challenge under Article 5 of the European Convention on Human Rights and a claim that the decision to intern was taken for improper reasons."

129. The 20^th of July submission had also made the point which was to be repeated in later communications from the MoD that in any case internment by the British Forces could only ever be for a short period since the UK policy was not to hold the hold security internees for protracted periods, usually up to a maximum of 18 months, and that if the claimant were not released he would have to be transferred to the Iraqi authorities "for prosecution for criminal offences," which would again raise the question of "whether the claimant could be safely handed over to the Iraqis because of the risk of mistreatment at the hands of the Iraqis already noted" and "the only difference would be that UK forces would be left with the decision, only with fewer options as to how to deal with him." Some four months later the Secretary of State for Defence, in his letter of the 16^th of November 2009 to the defendant, was to write in similar terms that "internment by UK forces is moreover not a long term solution and therefore does not mitigate the risk of challenge on Human Rights grounds at the SIAC because (the Claimant) if not released would have to be transferred to the Iraqi authorities from UK custody."
130. Further on the issue of the risk of legal challenge based on abuse of power, the 20^th of July submission had put the matter thus: "from a policy point of view there may be an additional issue if we are seen as removing this individual to enable his internment in Iraq, so as to circumvent the consequences of the House of Lords Judgment in the 'A' case last December preventing his detention under the ATCSA in the UK."
131. This MoD view against transfer into custody of the British forces had already been endorsed by the Foreign Office in the Minister's letter of the 10^th August: "you also suggest the possibility of the (Claimant) being taken into custody by the Multi-National Force. Whilst it is true that the MNF can intern imperative threats to their security, I do not think that the custody by either the UK or the US forces in Iraq is feasible." The advice to the Minister in the FCO of the 9^th August on the basis of this letter had advised that 'we understand MoD Ministers strongly oppose detention by UK forces in Iraq. They will argue that (the Claimant's) removal from the UK to a system of extra judicial internment in Iraq raise significant presentational and legal difficulties."
132. Not surprisingly perhaps in the light of the two sets of inter departmental responses from the FCO and the MoD, a Home official noted in an email of the 31^st August that the MoD reply was not helpful "but it may be all they can do – it certainly looks that way. However in the current climate, Home Secretary pressure may be helpful." The alternative it was suggested "is to rely on the very dubious possibilities of return into Iraqi custody currently being investigated by the FCO. My view is that we will not be able to put forward a convincing case on return regardless …"
133. On 1^st September 2005 the FCO advised by email that the British Embassy had been in contact with the relevant Iraqi authorities in order to discuss the negotiation of suitable arrangements to facilitate the deportation of (the Claimant) to Iraq, but British diplomats were currently unable to call on relevant authorities to take discussions forward "due to the security situation in Baghdad following the tragic events of 31 August."

The September Submission to the Home Secretary

134. It was against this background of the developments in August, that a submission was made to the Home Secretary by officials in early September (which rehearsed the position that had been reached in relation to the three options). I say "submission" although in fact there were two versions, one dated the 2^nd of September and an amended version, dated the 5^th but the recommendation given to the Home Secretary in each was the same namely that the Claimant should be released from Immigration Act detention. Each was written in the context of the issue whether to continue to detain the Claimant and the timing problem that under SIAC directions "we need to serve evidence on Monday September 5^th 2005 as to the possibility of (the Claimant's) safe return to Iraq following his deportation. We have very little to say and we are likely to face a bail application very shortly thereafter."
135. As regards the option of return to Iraqi custody both versions set out the difficulties both in regard to the facilitation of Iraqi criminal process and the obtaining of adequate assurances under a bespoke package.
136. As regards the facilitation of criminal process, each stated that "the Iraqis have no power to hold ... as a security detainee and will only detain him if we able to supply them with sufficient evidence to establish he has committed an offence under Iraqi law" and that "it might prove difficult to supply the Iraqis with sufficient evidence since the security service might be unable to disclose their full security case." Curiously, however, in the second of the submissions the statement in the first in this context that "any negotiations are likely to take a long time" is omitted from the second.
137. The second submission did also record that as regards the negotiation of the bespoke package the FCO had advised "it might be possible" to secure a MOU on assurances "within a couple of months" but if agreement were not secured within that time frame "the negotiations would have to be put on hold," "whilst fresh elections take place," which "could mean the earliest we could hope to conclude negotiations would be "approximately 9 months plus (from now). Moreover "the difficult security situation in Baghdad is a further complicating factor which makes rapid progress difficult to proceed.
138. Again perhaps understandably the September submission under the heading "Continue to Detain?" expressed the "immediate" question as whether "we can continue to detain (the Claimant beyond the 5^th September which was the date fixed by SIAC for service of "our evidence on safe return." It stated "they will expect a detailed package of assurances and monitoring arrangements to show that return will be compatible with our obligations under the EHCR." It continued, "We do not yet have this (and may never have) and the evidence that we will serve will be thin. Because of this, suspicion will inevitably arise that deportation is not a realistic possibility in the foreseeable future and that continued detention will therefore be unlawful." It was advised that an immediate bail application could be expected based upon this and bail would be granted if SIAC agreed that deportation "in the medium term is not realistic." Hence it "may be better to take the initiative and release the Claimant in advance of any bail application and make him the subject of a control order." However notwithstanding the view expressed that "construing a package of assurances and monitoring arrangements which will enable us to deport (the Claimant) is going to be extremely difficult," the advice was also given that it was open to the defendant to maintain his decision to deport regardless of whether the claimant continued in detention.
139. Options were put to the defendant. The first was to serve the evidence they had and await a bail application; the second was to pre-empt any bail application by withdrawing the decision to deport and placing the claimant on a control order while still however negotiating with Iraq. The recommendation was for the second option – to release him and place on a control order.
140. In the event the defendant chose to go for option one, i.e. to maintain both the deportation decision and the detention and await any bail application, although no express reasoning is set out in any of the documentation as to why this choice was made .
141. Pursuant to the SIAC Directions a witness statement of Nicholas John Troake was served on behalf of the Defendant dated the 19^th September 2009 to explain why the Secretary of State had not been able to comply with the order for service of evidence "specific to the appellant on safety by 5^th September." This expressly dealt only with progress as regards "arrangements for the safe return of (the claimant) to Iraqi custody in Iraq" upon which it was said the defendant had been "concentrating his efforts" although "enquiries have been made in other areas," an oblique reference presumably to the efforts to persuade the MoD to take the Claimant in the custody of British forces in Iraq. It referred to the difficulties arising out of the restrictions on the movement of British embassy staff in Baghdad and "the pre-occupation of those in the Iraqi government with their constitutional negotiations" which had hampered attempts to engage them on the question of the claimant. It recorded that a British Embassy official had met the relevant Iraqi Deputy Minister on the subject of the claimant and that the Iraqis had indicated that they wished to discuss matters "in more detail, shortly" but that, however, it was unlikely that negotiations would be concluded in the "immediate future." The prognosis for future negotiations was put in this way:

"The timetable for the negotiations depends upon the Iraqi Government. The British Embassy will do everything it can to advance them speedily but it is unlikely that they will be concluded in the immediate future. For this reason it as been impossible to finalise the evidence on behalf of the Secretary of State."

142. This passage is to be contrasted with the original draft put forward by officials which read "this process is likely to be lengthy and there will be a number of hurdles to overcome before a satisfactory package of assurances and monitoring arrangements is in place."

Thereafter: the fate of the MOU negotiations

143. What happened thereafter appears to be that the Defendant by the end of September accepted that it was not going to be possible to progress a MOU with the Iraqis within a reasonable timescale not least because of the restrictions on the British officials means of travel to the Ministry of Interior to speak with a particular Deputy Minister of Interior Kamal whose agreement they had been informed would be required, following a recent suicide bombing outside its entrances; (a FCO e mail of 27^th September refers).
144. That this was the position as at the end of September appears to be accepted in paragraph 5(x) of the defence which reads:

"on 27^th September 2005 the FCO further advised the Defendant that the agreement of the Iraqi Deputy Minister of the Interior would also be required, but that access to the Ministry was not possible. Embassy staff were not at liberty to travel freely in order to progress discussions and the relevant Iraqi officials were engaged in matters they considered to be of a higher priority (including for example the negotiating of the Constitution) and little interest was expressed in developing a suitable MOU. It was therefore considered that in any event it would not be possible to progress a MOU within a reasonable timescale" (emphasis of the court).

145. I should however record that the question of whether appropriate assurances could be obtained within a reasonable time frame was according to disclosed documents revisited in November 2005 when on the 2^nd Of November 2005 the Home Office again wrote to the FCO (with reference to a conference with leading counsel "last Friday") "seeking urgent advice on the prospects for returns to Iraq in national security deportation cases."

The question of the reliability of Iraqi assurances

146. This request and the FCO response of the 4^th of November is of interest not simply because the response confirmed the practical difficulties why a negotiated package of assurances was unlikely within any reasonable time span relating to the restrictions on travel, the worsening in the security situation, and the Iraqi pre-occupation with other matters regarded of higher priority) but also because the request expressly raised – apparently for the first time – the reliability of any such assurances having regard to the ability of the Iraqi authorities to exercise control over their own security forces. To this question the response gave a negative reply:

"We do not think that the Iraqi authorities have their Security forces under sufficient control to respect the assurances we would require."

147. Furthermore the FCO response highlighted the quite separate point, unrelated to the need to negotiate a reliable acceptable bespoke package, (already noted in he internal submissions made to the Defendant) that in any event, the Iraqi authorities did not have power to detain returnees on security grounds ("and indeed HMG is opposed to the authorities obtaining such potentially abusive powers"), that they could not therefore detain individuals from the UK on grounds of national security but could only hold them in custody if they had evidence of a serious crime committed within Iraqi jurisdiction. The Response at this point ("The returnees would therefore probably have to be released. That would have obvious implications for the insurgency and the threat to British interests,") demonstrates that still as at November 2005 no such evidence was in the hands of the Iraqis and certainly the UK authorities had not as yet been able to supply such information.
148. Given the issue of due diligence raised in this claim, I set out the material parts of both that request and response of early November 2005.
149. The Home Office letter sought "your assessment of how likely we are within the accepted time frame to be able to agree an MOU with the Iraqi authorities and secondly whether if we did so their ability to exercise control over their own security forces is sufficient that the MOU and any associated assurances could be relied upon to deliver the level of protection required."
150. The response (dated 4^th of November):

Summary

"1. Unlikely to agree an MOU with Iraq within six months still less within three or four months. Weak Iraqi control of their security services. Iraqis cannot detain returnees without charge.

Detail

2. ... this reply has been cleared with the FCO's Iraq Policy Unit and Legal Advisers and draws on existing advice from Embassy in Baghdad.

Time frame

3. We think it unlikely that it would be possible to agree an MOU with the Iraqi authorities within six months. We base that judgment on:

(i) precedent: it took more than 12 months to negotiate a returns MOU for failed asylum seekers with the Iraqi central authorities despite high level UK pressure, there is no obvious reason to expect that an MOU with assurances could be negotiated more rapidly;

(ii) our contact with the Iraqi Interior Ministry on this issue to date. We made our first approaches in September. The Iraqi authorities have not engaged on the dossier and have shown little enthusiasm for our proposal;

(iii) the electoral timetable: the Iraqi general Election is due to take place in mid December, the Iraqi Transitional Government will then be replaced by the Iraqi National assembly and government. We do not expect this new government to be in place much before February or March 2006 (based on the time it took to appoint the current transitional assembly). There is little prospect of agreeing an MOU before the new Government takes office. The MOU is unlikely to be a priority for the new administration;

(iv) operational factors. As you know, the security situation in Baghdad hinders Embassy access to Iraqi offices and the conduct of business. This is unlikely to change for some while.

Control of Iraqi Security Forces

4. We do not think that the Iraqi authorities have their Security Force under sufficient control to respect the assurances we would require

5. the Ministry of Interior strategy is to exert full control over regional police forces through a national command and control structure. This target has not yet been met … in part due to the continuing influence of unofficial (mainly religious based) party militia within the police. It will take time for these factors to be eradicated.

6. The Iraqi constitution allows for considerable provincial autonomy for establishing and administering internal security forces in the Iraq regions, including police forces. We expect the provisions of the Constitution to be legislated into force during the course of 2006.

Other Factors

6. (sic) … other factors are also relevant … First, the Iraqi authorities do not have powers to detain returnees on security grounds. Indeed, HMG is opposed to the authorities obtaining such potentially abusive powers. The Iraqi authorities could not therefore detain individuals returning from the UK on grounds of national security but could only hold them in custody if they had evidence of a serious crime committed within Iraqi jurisdiction. The returnees would therefore probably have to be released. That would have obvious implications for the insurgency and the threat to British interests."

151. I record that the response is dated the 4^th November. Whether it was in fact sent out or received around this date is not entirely certain. I say this because of an e mail from a FCO official of the 8^th November setting out what the FCO's response is "likely to be" namely, the reply is likely to be:

"No we will not get an MOU in a reasonable time frame; and even if we get an MOU, the Iraqi Govt cannot deliver their own security forces so it will be near useless."

Pursuing the Ministry of Defence, the hybrid solution: return to the detention of UK Forces with a view to transferring the Claimant to Iraqi custody as a criminal suspect once the appropriate arrangements and assurances had been made.

152. Apart from the revisitation of the Iraqi option in November, what in effect happened after the end of September were repeated attempts by the Defendant at Permanent Secretary and Secretary of State level, to persuade the MoD to change its mind and to agree to arrange for the claimant to be taken at least temporarily into the custody of UK forces. This has been referred to in the course of this trial as the "hybrid solution". It is described in a speaking note prepared for the Home Secretary in early October to speak with the Secretary of State for Defence "at conference" (a reference presumably to the party conference), in these terms:

"The preferred route of return for this individual would be to the Multi-National Force (MNF), British (not US) custody with a view to transferring him to Iraqi custody as a criminal suspect (possibly to face trial) once the appropriate arrangements and assurances have been made.

… The Iraqis have already confirmed they would be willing to discuss the matter further. Therefore we hope that any deportation and detention in MoD custody in Iraq would not be indefinite but whilst agreement is sought with the Iraqi authorities. It is a proposal for the interim although we may not be able to agree return to Iraqi custody."

153. It reflects the "breathing space" suggestion made in the original submission to the Home Secretary of the 20^th July (para 23: "return to British custody would obviate most of the difficulties outlined above, but would raise others, specifically (the claimant's) fate after the MNF mandate expires or he can no longer be held for some other reason. Detaining him in Southern Iraq in British custody would give us a breathing space to make arrangements to cover these aspects which may or may not be acceptable to SIAC …..)."
154. That speaking note again rehearsed the objections to such a transfer already voiced by the MoD in particular the legal objections raised that "deportation to Iraq with the intention that (the claimant) be detained by the MoD looks like an abuse of powers (detention plus deportation). The MoD mandate from the UN is clearly directed at the situation in Iraq and should not be used to address problems faced outside of Iraq," as well as the inability of the GOC to commit in advance to what he would do with the Claimant when he arrived in Iraq. Although the note suggested that these objections should not be a barrier to pursuing deportation, it recognised "it would be fruitless to address the legal issues if the MoD were unwilling to assist for policy reasons" and even if "counsel were to advise that removal and subsequent detention in Iraq would be lawful." There is a reference to a possible joint approach to counsel.
155. Whether the Home Secretary in fact ever spoke to the Defence Secretary in early October is unclear. What did undoubtedly occur in October was an exchange of correspondence between the respective Permanent Secretaries which ultimately however took the matter no further. The Permanent Secretary at the MoD, having been asked by his opposite number at the Home Office in a letter of the 13^th of October, "to consider further, with no prejudice to your final decision, the Ministry of Defence's potential role in helping detain these individuals in Iraq should that deportation take place," by letter dated the 20^th October in effect repeated the negative position of the MoD previously expressed the previous August. The second paragraph reads:

"In August, MoD advised the Home Office that we would not be able to assist in a similar case involving another Iraqi (the Claimant). Since that time our officials have approached Counsel for further advice on the (Claimant's) case. … The MoD's position in August was that while we could assist in removing (the Claimant) to Iraq, UK forces could not participate in his internment in Multi-National Division (South East) (MND (SE)) for a combination of legal or other reason. This remains the position."

156. The defendant however even at this stage still refused to take "no" for an answer from the MoD.
157. A submission to the Home Secretary of the 21^st October, restated the problems with arranging contacts with the Iraqi authorities and that it advised, although an eventual agreement with the Iraqis could not be ruled out, this was likely to "take a long time to finalise to the satisfaction of SIAC," and that they did not have such time ("he has been in detention since January 2005, with little movement on establishing an article 3 compliant route to deportation"). It advised that "given this, if we wish to remove him, there is little alternative to pursuing (the Claimant's) removal to British forces custody in Iraq." Hence it was said, "the real question for us is whether we accept the MoD response and accept given the length of time he has been in custody that in (the claimant's case) deportation is not a practical proposition or whether "we try again to persuade the MoD to change their position." It suggested that there was no reason why the question should not be pursued again at Secretary of State level, "although such an approach could only justify a further short period of detention (a matter of a day or two sufficient to facilitate the conversation

Release into police custody

158. That submission also raised for the first time; the option of release of the Claimant into police custody "to allow the police to interview him." It is recorded "that the police are already in possession of a letter from the CPS saying there is enough evidence to press charges: the interview would be to strengthen the case against him. The police feel they have good grounds to oppose bail but would prefer for logistical reasons for any transfer to police custody to take place in the week commencing 31^st October."
159. The submission in fact recommended that course. The Defendant however did not accept this option. Nor the option also put to him of pre-empting a bail application and releasing the Claimant on Immigration Act conditions.
160. Rather the defendant chose to take the first option "to keep the Claimant in custody and make further attempts to persuade the MoD to assist which would be at Secretary of State level" and this notwithstanding the advice that the MoD response was "unlikely to change" and "if we continued to pursue the MoD on this question we would be in danger of accusations that we were continuing to detain (the Claimant) at a time when it should have been plain that the MoD were not going to assist and our discussions with the Iraqis themselves were at far too early a stage to provide any basis for considering we have a reasonable prospect of removing him within a reasonable time."
161. Under this option the submission also raised the problem that even if the MoD position were to change there were still many unresolved issues about what would happen to the Claimant at the point the UK forces could no longer hold him:

"we are already very late with our evidence to SIAC (it was due on 5^th September) and it is difficult to see what we could plausibly tell them now (unless the MoD position were to change); even then there are still many unresolved issues about what will happen to (the Claimant) at the point the UK forces can no longer hold him. It is plain that we will not be ale to resolve those issues in time to serve our evidence for a hearing in January."

Contact at Secretary of State level

162. The further disclosed documents after the 21^st October suggest that the Home Secretary did have a "brief" conversation with the Secretary of State for defence on the 1^st November in which the MoD "line" was "repeated" that they "will not facilitate potential internment (of these individuals) by UK forces." (See an internal MoD communication of the 2nd November): "The Secretary of State was grateful for your brief and remains convinced that while we should offer to assist in air transport … we will not facilitate potential internment … by UK forces. He has repeated this line to the Home Secretary in a brief conversation they had on 1^st November."
163. Meanwhile on the 28^th October the Claimant made the long anticipated bail application asserting as reasons for release, "there is no immediate prospect of a Memorandum of Understanding being agreed with Iraq. It has transpired that negotiations are not even in a preliminary phase and the SSHD has stated that any timetable is in the hands of the Iraqis. There is therefore no immediate prospect of removal to Iraq or even in the foreseeable future," and by letter of the 7^th November Ousley J., as Chairman of SIAC asked for the Defendant's response to the asserted factual basis for bail "by the end of the week."
164. The response by the Treasury Solicitor on behalf of the defendant dated the 14^th of November 2005 was in these terms:

"In the light of the current situation in Iraq and the claims made by the Claimant that he would face a real risk of torture or death on return the Secretary of State accepts that he will need to provide evidence to satisfy SIAC that the appellant would not face such risks on return.

In order to be in a position to do this the Secretary of State has been pursuing two distinct options. The first is to obtain assurances from the Iraqi Government as to (the Claimant's) treatment if he were returned. The Secretary of State, with the assistance of the Foreign and Commonwealth Office has been pursuing this with the Iraqi Government as stated in Mr Troake's statement of 19^th September and discussions have commenced on this issue. However, efforts have been hampered by conditions in Iraq and the political situation there. As a result, the Secretary of State has reached the conclusion that these discussions are unlikely to lead to an agreement on assurances in the near future.

The second option considered by the Secretary of State is the possibility of returning (the claimant) to southern Iraq where he would then be liable to detention by British Forces. This option is currently being pursued."

165. The British Forces option was it seems pursued by the Home Secretary personally with the Secretary of Defence when they spoke "in the margins of cabinet" on or about the 11^th November. However the Defence Secretary was unmoved. He wrote to the Defendant repeating in effect the MoD's previously stated position, in a letter dated the 16^th November 2005 which begins: "We spoke again in the margins of cabinet on the case of (the Claimant). I have since considered the issue again and my views remain the same as those already outlined … Adam Ingram's letters to Hazel Blears."
166. Submissions were then made by officials to the Home Secretary on how now to proceed dated the 17^th and 18^th of November. The submission of the 18^th describes how the Defendant was aware from previous discussions that "we have discounted an unsupervised return to Iraq and return to US custody in Iraq and have been concentrating our efforts with the Iraqi government (for a return to Iraqi custody) and negotiations with the MoD for a return to British custody." It rehearsed that removing the claimant into Iraqi custody was not currently possible nor was likely within a reasonable time, recording the latest Foreign Office assessment that it was "unlikely that it would be possible to agree an MOU with the Iraqi authorities within six months and still less likely within the next three to four months." As regards the MoD, it records as follows :

"as you know, the initial response from the MoD on the question of detention by British forces was negative and a further letter … in October restated this position. You subsequently spoke to the Secretary of State for Defence and asked him to reconsider the MoD response. He has now done this, and the MoD's position, which remains unchanged, is set out in his letter of 16^th November. The MoD cannot agree to take (the Claimant) into custody in Iraq for the reasons previously expressed:

(i) no guarantees could be given in advance to that detention would automatically follow deportation;

(ii) detention in Iraq could bring the power to intern under the legal spotlight in SIAC which could lead to further legal challenge to the power to intern; and

(iii) It could lead to accusations we were using our powers to intern in order to circumvent the domestic judicial process which would be unhelpful when negotiations concerning the renewal of UNSCR 1546 from which the power to intern derives, are under way.

167. The submission describes the reasons put forward by the MoD as "logical and valid," and advised that given this was the third such response from the MoD from very senior levels it was unlikely further pressure would result in any change of position.
168. Mention is made of a possible approach to the Prime Minister but this was not recommended "given we are not proposing unsupervised release in the UK."
169. The Submission recommended that the Home Secretary follow what was described as the "only serious option" in the case of the Claimant, namely: "to withdraw the decision to deport and release him from immigration detention into police custody to allow the police to interview him." This was the option previously recommended in the submission of 21^st October. The submission repeats that which had already been rehearsed in that submission, namely that the police were already in possession of a letter from the CPS saying there was enough evidence to press charges. The opening paragraphs of that submission had stated that "… the police have informed us that they would wish to charge (the Claimant) with a criminal offence under the Terrorism Act 2000 (which would preclude him from the subject of a control order) and that they would do this should he be released from immigration custody. They would make every effort to continue to detain him."
170. On this occasion the Defendant did accept the recommendation of his officials. On the 23^rd November 2005 the Home Office wrote to the Claimant's solicitors stating that his case had been reviewed by the Secretary of State, and it had been decided to withdraw the Notice of Intention to Deport and arrangements were "currently" been made with the Prison service for his release from "Immigration custody." He was duly so released that same day although as already indicated, he was immediately re-arrested at the gate this time by the police on suspicion of Terrorism offences.

The Court's conclusions on the Claim

171. In my judgment this detention was unlawful throughout.
172. I reach this conclusion in a number of ways.

The period from 2^nd June until date of release: the purpose for which the claimant was being detained.

173. I am satisfied that from the beginning of June - (the letter of the 2^nd of June ) when the Defendant expressly turned his mind to what would and should happen to the Claimant upon his return to Iraq, the Claimant was not being detained for the sole and limited purpose of effecting his removal from the United Kingdom but for the additional purpose of investigating whether acceptable arrangements could be made to return the Claimant into detention in the destination country, be it that of the Iraqis, or the forces of the United States or those of the United Kingdom.

Detention when deportation was conditional upon removal into detention

174. I have already found that the Secretary of State at least from the end of July 2005, upon receipt of the submission to him of the 20th July expressly formed the intention not to deport the Claimant if the only route available were an unsupervised return which did not guarantee that the Claimant would be detained on his return to Iraq and thereby free to join the insurgency contrary to the national security interests of the United Kingdom. The assessment was made that it would not be conducive to the public good to deport the claimant unless it could be guaranteed that he would, upon arrival, be transferred into some form of detention. This meant that from that date at least the removal of the Claimant from the United Kingdom was conditional upon him being detained upon return to Iraq. I agree with Miss Harrison for the reasons already given and further explained below that removal into detention is no part of the purposes of a deportation order and outside the powers of deportation contained in sections 3(5), 5 and Schedule 3 of the 1971 Act. Consequently it must follow that detention for that purpose is and was likewise unlawful, being not for the statutory purpose of being "pending deportation."

Detention to investigate acceptable arrangements for removal into detention

175. However even if this were not the case and the Secretary of State after the 20^th July still retained in his mind as a live option the unsupervised return of the Claimant to Iraq, what is in my judgment remains decisive of the unlawfulness of the period of detention from the date of the letter of the 2^nd of June (when the Home Office made enquiry of the Foreign Office in terms relating to what treatment an insurgent might face if handed over to the Iraqi authorities on return) is that this period was being used by the Defendant through his officials not to further that option but solely to investigate whether acceptable arrangements could be made and if they could, to make those arrangements, whereby the Claimant could be returned into some form of detention in Iraq. The evidence is all one way that the pursuit of these arrangements was what occupied those actively dealing with the Claimant's case from the beginning of June onwards and had they not been pursued, the overwhelming probability is that the decision would have been made by the Defendant very quickly on national security grounds that as the Claimant could not be allowed to be set at liberty on his return to Iraq, the decision to deport could not be maintained and the Claimant would have to be released from the administrative detention (albeit into some other form of lawful control as under a control order).
176. In other words I am also satisfied that what prolonged the Claimant's detention in this case as from the 2^nd June when the defendant first expressly applied his mind to what would happen to the Claimant on his return and the national security risks posed by him to this country even from abroad was the pursuit of those contemplated arrangements for the Claimant's detention in Iraq.
177. However, as already set out above, as a matter of law the power to detain pursuant to the Immigration Act 1971 under Schedule 3 paragraph 2(2) can only be lawfully exercised "pending the making of a deportation order." It cannot be used for a purpose outside the purposes of a deportation order. In my judgment detention for the purposes of investigating whether there can be made acceptable arrangements (by which I mean both legal and practical, and by legal I include arrangements which would be convention compliant) for the transfer of the deportee into detention in the country to which he is to be deported, has nothing to do with any purpose to which a deportation order is directed.
178. The power to detain under the Immigration Act 1971 must be strictly construed (see again the Privy council in Tan Le Tam at 111B "the courts must construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention"). I have already set out my reasoning for concluding that a deportation order is by statute directed to removal and exclusion from the United Kingdom and is not directed to the enforced transfer of the deportee into detention once he arrives in the country to which he is to be removed, be it, relevant to this case, into some form of security internment by the occupying forces operating in that country or into the custody of the authorities of the destination country as a criminal suspect. I agree with Miss Harrison that it is a power exclusively for the purpose of effecting immigration control, for the purpose of making a deportation order and then for the purpose of effecting the machinery of deportation, i.e. removal. It is no part of the purpose or machinery of deportation to affect the transfer of the deportee into detention.
179. I stress the expression "enforced transfer" into detention since this was what in my judgment the arrangements under investigation were directed. The arrangements being contemplated in this case as from June 2005 were very different from a looser arrangement (cf the sort of arrangement described by Mr Troake in his open statement of the 16^th of May) whereby the deportee is to be removed to a country where his detention is likely or even inevitable because of information supplied to the foreign country by the United Kingdom prior to his removal which I accept could lawfully be undertaken as incidental to the power to deport, subject always to considerations of ensuring the removal was convention complaint . (See my analysis of Soblen above). But this is because the initiative for the detention would originate with the receiving foreign country and not with the Defendant and the position of the Defendant in these circumstances would not be as it became in this case, not to deport if such transfer into detention could not be ensured.
180. I thus reject the submission made on behalf of the Secretary of State that the making of arrangements for the detention of the deportee in the country to which he is to be returned is a power to be implied into or to he held incidental to the power to deport, no matter how strong may be the national security case for such detention. The power of detention under the 1971 Act is patently not a power available to detain for preventative purposes in this country in order to protect the public from threat of terrorism (cf the express powers under the Anti-Terrorism Crime and Security Act 2001 struck down in 'A') and I decline to imply into it an analogous power to detain in order to make arrangements for such preventative detention overseas no matter how compelling the requirements of UK national security that this should be done.
181. Hence I reject the submission that it was permissible to use the period of detention for the purpose of seeing whether such arrangements for enforced transfer into detention could be practically or lawfully made, whether in terms of ensuring they did not violate the deportee's convention rights or otherwise. This is on the straightforward basis that the making of such arrangements is no part of the purposes to which deportation is directed and detention under the Immigration Act can only be used to further such purposes. This is very different from using the period of detention to see whether acceptable arrangements can be made, by way, for example, of the obtaining of assurances from the receiving state, to obviate any risk to the deportee upon his return of mistreatment in breach of his convention rights, where that risk has arisen incidental to the contemplated removal, - that is to say where there are substantial grounds for believing that the receiving state on its own initiative may - mistreat the deportee upon his return. As I have already demonstrated the risk to the Claimant of mistreatment in breach of his convention rights which the defendant was seeking to obviate in this case by seeking out a "bespoke package" arose on the Defendant's analysis not because of the contemplated removal as such but because of the contemplated transfer into Iraqi custody.
182. This part of he court's reasoning is directed solely to the purpose for which the period of detention after the 2^nd June was maintained. It is not dependent upon any finding that the original decision to make the deportation order was not bona fide or was for an improper purpose. I can accept that the evidence does not suggest other than that that decision was made on the bona fide grounds that the defendant considered that the Claimant's continued presence in the United Kingdom was not conducive to the public good and I certainly could not find on the evidence that the defendant at that stage decided to make the deportation order with an ulterior purpose to transfer the Claimant into detention. As I have already indicated, the evidence is compelling that the Defendant did not at that stage expressly apply his mind at all to what would or should happen to the Claimant on his return to Iraq or to the risks to national security of this country if he were to be removed unsupervised. I refer to my analysis above at paragraphs 80 onwards.
183. Further, I should stress that it is no part of the court's reasoning at this stage of its judgment to rule upon the legality of the types of detention being contemplated and being investigated by the Defendant, and whether in any event removal into such detention would have been unlawful as incompatible with the claimant's convention rights.
184. I will for present purposes accept Mr Eadie's plea that this court should bear in mind that none of "the removal into detention" options under consideration, were in fact ever carried out, and that it would have been for SIAC if the case had ever got to a hearing to determine whether a lawful removal could be effected. He seeks to persuade me in these circumstances that the court should be concerned when considering the lawfulness of the detention while these options were being investigated, only with the application of the Hardial Singh principles (ii)(iii) and (iv) and should only be asking itself in effect whether at all material times during the period of the detention, and having regard to the obligation of reasonable diligence and expedition, the Defendant was reasonably of the view there was a realistic prospect of effecting the Claimant's removal to Iraq within a reasonable time scale compatibly with his convention rights on one or more of the contemplated options. Or to adopt the approach of Field J. in Yousef, the applicable question should be whether the Claimant was detained for a period longer than reasonably necessary having regard to the necessity of the exercise of reasonable expedition in determining whether arrangements could be put in place that would allow for it to be reasonably contended that the Claimant could be removed to Iraq compatibly with such rights.
185. In effect Mr Eadie submits that it must have been lawful to use the period of detention, subject only to the requirement of due diligence, to investigate the legality of the various options unless any particular option was so "plainly impermissible" that it should not have been explored. He includes in these options the overarching option of "removal into some kind of detention." As indicated he prays in aid the early and thereafter periodic involvement of leading counsel to assist in these investigations in support of the submission that such exploration must have been permissible.
186. The difficulty with this submission in my judgment is that the Defendant could only exercise the power to detain for a purpose given to him by the statute, namely for the purposes of deportation. If it was being exercised for a purpose which is outwith the powers and purposes of deportation, as I have found it to be, then it is being unlawfully exercised whether the defendant is aware of it or not, and no matter how bona fide the Defendant's motives and how reasonable it was from the standpoint of national security to see if measures could be taken to ensure the Defendant did not join the insurgency upon his removal to Iraq. False imprisonment is a tort of strict liability.
187. I should also add that the issues in this case at this part of the court's reasoning are also very different from those in Soblen. The court in Soblen was concerned solely with the question of the legality of the deportation order itself, not with the lawfulness of the detention purportedly made consequent upon a decision to make such an order. As I have already indicated, the two do not always go hand in hand.
188. In effect the detention in this case after the 2^nd June fell foul of the first principle in Hardial Singh - it was not being used for the purposes of deportation - and hence was unlawful.

The legality of the particular options assuming removal into detention is part of a deportation.

189. I have reached this part of my decision without considering it necessary to determine whether, assuming contrary to what I have held above, removal into detention is within the purpose and powers of a deportation, any of the options for removal into detention being considered by the Defendant, were in themselves unlawful by reference to the United Kingdom's obligations under the EHCR and the Defendant's duty obligation under s.6 of he Human Rights Act 1998 not to act incompatibly with the Claimant's convention rights.
190. Miss Harrison urged me to make a ruling on these matters on the basis that detaining the Claimant in order to consider and pursue arrangements that objectively judged by this court were always going to be unlawful as incompatible with his convention rights, must as a matter of law render the detention unlawful. This is on the basis - which I accept - that that there was only a power to detain "pending deportation" and that detention could never be "pending deportation" if deportation objectively judged by this court could never have lawfully taken place. (See again the analysis of Lord Brown in Khadir).
191. I accept Miss Harrison's basic proposition that removal from the United Kingdom into the custody of the British Forces in Iraq could never have been lawful in domestic law since it would by definition be into detention by way of internment (indefinite or indeterminate detention without charge or trial) which as already explained is not one of the specified exceptions to the right to liberty guaranteed by article 5. In other words any transfer of the defendant from the United Kingdom into the custody of the MoD in Iraq in order to intern him would self evidently be unlawful under section 6 of the HRA 1998 as incompatible with article 5(1) of the ECHR and could never be lawfully effected. I agree that the decision in Al Jeddah ( - 'the UNSCR "trumps" article 5' - see below) does not assist the Defendant since what is being considered here is the lawfulness of the removal from the United Kingdom and the Defendant's obligations in the United Kingdom not to act incompatibly with the claimant's convention rights. The United Kingdom's obligations under the UNSCRs are not in play within the territory of the United Kingdom.
192. As regards the proposed removal into the detention of the British Forces as a security detainee with an ultimate aim of transferring him as a criminal suspect into Iraqi custody once acceptable "convention complaint" assurances had been obtained from the Iraqi authorities some time in the future (the "hybrid solution" which became the preferred route by the end of September), I heard and received considerable submissions on the effect of the English courts' decisions in R(A-Jeddah ) [2008] 1 AC 332 together with those of Al Skeini v SSHD [2008] 1 AC 153, and Al Saadoon [2009] EWCA Civ 7. I do not disagree with the analysis of Miss Harrison from which I did not understand Mr Eadie to dissent, that taken together these would mean that under domestic law as it currently stands:

(1) once in Iraq and detained by the British forces as a security detainee the claimant would not have been able to assert his rights against internment under article 5 or to the full extent because these would have been displaced by the provisions of UNSCR 1546 authorising internment for security threats. To this extent the UNSCR "trumps" Article 5; (the effect of Al Jeddah);

(2) nonetheless whilst in British custody as a security internee the claimant would still have remained within the jurisdiction of article 1 of the ECHR and have the rights of challenge based on his convention rights (other than article 5 to the extent excluded by Al Jeddah) (the effect of Al Skeini);

(3) however if ever he were to have been reclassified as a criminal detainee the claimant would have fallen outside article 1 ECHR jurisdiction and within Iraqi control because of the overriding obligations under UNSCR 1546 and subsequent resolutions, and if requested the British forces would have been bound in international law to hand him over to the Iraqis even if that were in conflict with the UK's ECHR obligations (Al Saadoon, Court of Appeal ). I should add however that the recent decision of the ECHR (Al-Saadoon and Mufdhi v UK - Judgment 2^nd March 2010), would appear to rule against this last approach .

193. It is on this basis that Miss Harrison urges upon me the further view that given the consistent acknowledgement by the Defendant that the Claimant was at risk of mistreatment if returned to Iraqi custody and that bespoke arrangements were necessary to protect him from torture and other inhuman treatment and indeed the death penalty, it could never have been lawful to remove the Claimant from the United Kingdom into the custody of the British Forces where there was a very real risk that the ultimate outcome could be the transfer into Iraqi custody, without securing in advance satisfactory assurances and arrangements to obviate that risk. Otherwise removal from the United Kingdom would necessarily be in breach of Article 3. It is said that it is inconceivable that such an uncertain and contingent arrangement could satisfy the absolute obligations under article 3 and article 1 of Protocol 13 of the ECHR.
194. I have sympathy with these propositions but ultimately have decided it is unnecessary to decide this particular question of the lawfulness of the "hybrid solution" since I have accepted that in any event any removal from he United Kingdom into the custody of the British forces (or for that matter the US forces) would have always been unlawful as incompatible with Article 5.
195. Thus these are additional reasons for my concluding that the detention after the 2^nd of June was unlawful, namely that detention for the purpose of seeking to make arrangements for removal into the detention of British Forces (or US) Forces detention in Iraq, even if in principle within the purposes of a deportation, was not a detention "pending deportation" since such particular deportation could never have been lawfully effected.

The detention prior to the 2^nd of June

196. It is clear to me that as at the date of the decision to make the deportation order and the decision to detain and thereafter prior to the 2^nd of June, the defendant did not expressly apply his mind to the consequences of that which nonetheless the defendant has pleaded was "clear throughout" namely that "returning the Claimant unsupervised to Iraq would not have been desirable" "due to the assessment that he would have joined the Insurgency" (defence paragraph 5(j)). Prior to that date as I have found the defendant's officials were apparently working on the basis of an "ordinary" deportation in respect of which absent any particularised human rights grounds of appeal it was assumed that no risks to the Claimant's safety arose. Nor did the Defendant apply his mind to the need to seek out and arrange a bespoke package of assurances from the Iraqis to obviate the clear risk to the Claimant (consistently acknowledged by the defendant once thought was given to the matter) of mistreatment at the hands of the Iraqi authorities, if he were to be handed over to them, in breach of his article 3 and article 2 rights, notwithstanding it is expressly admitted (by the admission of the 3^rd July 2009) that "at all material times in the circumstances of this case the claimant could not have been returned under the MoU; a bespoke arrangement was required." This admission in turn in my judgment can only be interpreted as an admission by the Defendant that "at all material times", if thought had been given to the matter, the only assessment that could and would have been made by the defendant, was that the claimant could not be allowed to be removed to Iraq unsupervised and would have to be returned into some kind of detention. As the internal documents of the defendant show, it was only on the basis that the claimant be returned into Iraqi custody, that the Defendant considered that the need for such bespoke package arose.
197. A number of consequences flow from this analysis in my judgment material to the lawfulness of the detention prior to the 2nd of June.
198. First and fundamentally it demonstrates that which I find to be the case, namely that as at the date of the decision to make the deportation order and the decision to detain, no proper consideration was given by the Defendant to the question of what would happen to the Claimant on his return and to any assessment of the risks to his safety in convention terms on his return and to what arrangements and safeguards were required if the Claimant were to be returned compatibly with his convention rights. Further as at that date the Defendant just did not turn his mind to the question whether there was a realistic prospect of securing any such arrangements and within what time frame and would not have any idea whether there was a reasonable prospect of effecting a lawful, by which I mean convention rights compatible deportation, within a reasonable time which would withstand the scrutiny of any court.
199. This finding in my judgment is in itself sufficient to render the decision to detain unlawful.
200. This is on the ground that having regard to the obligation not to act incompatibly with the convention rights of the proposed deportee, the Defendant was bound on public law principles before exercising his discretion to decide to make a deportation order, upon which the existence of the power to detain in this case depended, to have regard to all relevant considerations including under the Immigration Rules, (see in particular Rule 380) whether removal in consequence of the deportation order would breach the UK's obligations under the Refugee Convention or the ECHR. This on the evidence as at the 26^th January the Defendant did not do which in my judgment renders the decision to deport and hence the decision to detain fatally flawed.
201. This is not to say that it was necessary for the Defendant to have had in place all necessary arrangements for the safe return of the Claimant before making the decision to deport and then to detain, but I do consider he was obliged properly to turn his mind to the question of whether such arrangements were required if the Claimant were to be lawfully removed and whether if they were there was a reasonable prospect of obtaining them. This he did not do. I reject the submission of the Secretary of State that consideration of human rights compatibility can await the appeal process and the only relevant question for the purposes of determining the legality of a decision to make a deportation order under section 5(1) is whether the person was liable to deportation under section 3(5) because of a bona fide assessment by the Secretary of State that his presence in the United Kingdom was not conducive to the public good. I accept that the ECHR obligation focuses on the act of removal and hence for the purposes of any appeal against the decision to make a deportation order, the appeal tribunal will look at the risk of return as at the date of the hearing. However, this cannot absolve the Defendant from considering as at the time of the decision to make a deportation order whether he will be able lawfully to remove the proposed deportee compatibly with the person's convention rights since removal is that to which a deportation order is directed, and an order for an incompatible deportation would be unlawful.
202. It is noteworthy in this case that when the defendant begin to apply his mind to the safety of the Claimant on return in the June and the need for special arrangements, this was not as a result of any particular matters raised by the claimant in his appeal grounds but from the Defendant's own assessment of what was to happen if the Claimant was to be removed.
203. I should add that I do not consider that anything in the judgment in Youseff is inconsistent with the above. Youseff was not concerned with the making of a decision to make a deportation order.
204. In any event, however, given the pleaded defence at paragraph 5 and the admission, in my judgment the legality of the detention between the 26^th January and the 2^nd June should be judged by reference to what has been pleaded was "clear throughout" and what has been pleaded was "at all material times required."
205. On this basis, if proper consideration had been given from the outset, that is to say at the time the defendant was considering whether to make the decision to make a deportation order and thereafter to detain, as on public law principles it should have been, as to what was to happen to the Claimant on his return to Iraq, then the inevitable conclusion must be that either there would have been no detention at all if the Defendant had appreciated that there was no lawful power to detain in order to make arrangements to transfer the Claimant into detention in Iraq; or this period of detention would have been used for exactly the same purposes as the period post to 2^nd June, namely the pursuit of arrangements to ensure that any removal of the Claimant to Iraq was a removal into detention. For reasons already given detention for this purpose would in my judgment be for a purpose outwith the power and purposes of deportation and hence unlawful. Hence on the basis of the Defendant's pleaded case as to the purposes to which the detention in this case was put (defence paragraph 5) the entire period of detention is to be held unlawful.

Hardial Singh

206. I turn finally to consider the question of due diligence and the application of Hardial Singh principles (ii)(iii) and (iv) on the assumption that I have been wrong to hold as I have that there was no power to detain for the purposes for which the detention was here used and wrong to hold that the initial decision to detain was unlawful.
207. The question here is whether the Defendant operating under the requirement of all reasonable expedition and due diligence should have identified at an earlier point than on the 23^rd November that there was no reasonable prospect of effecting the claimant's return to Iraq "both compatibly with Article 3 ECHR and within a reasonable timescale" (defence paragraph 15).
208. It will be recalled that the process of considering this question did not begin until 2^nd June and as between the 26^th January and 2^nd June no steps were taken actively to address the issues of safety on return and Convention obligations. Then within the period of consideration beginning with the 2^nd June, there are particular milestones said by the claimant to be indicative of a failure of the Secretary of State to accept the reality that removal via any of the options under investigation was no longer viable within a reasonable timescale. These include: the failure to accept the recommendations of officials in the submissions of the early September (2^nd/5^th) to release the Claimant; the similar failure in respect of the recommendation of the 21^st of October; the acceptance by the Defendant in his defence that by the 27^th September it was not going to be possible to progress a MOU with the Iraqis within a reasonable timescale; what is said to have been the constant advice from the MOD and the FCO from July onwards that transfer into the custody of the US or British Forces as a security internee could not be guaranteed and was not feasible; that the advice of officials on the 21^st October had been that the alternative option of pursuing the MoD could only justify detention for a further "day or two." As regards the Iraqi option, I have been reminded that the advice the FCO, although only sought in the November, was that Iraqi government could not control its own security forces hence the reliability of any assurances were "near useless." It is said on the claimant's behalf that this must have been the position throughout, that is to say there never was any real prospect of securing effective reliable assurances from the Iraqis.
209. The Secretary of State properly reminds me of two matters however –

i) First that the options being pursued were detailed and complex which need to be worked through; that advices and analyses of officials were not binding upon the Defendant and the mere identification of a problem did not have to mean it was insoluble; that the defendant once he embarked on the process in June 2005 was careful to seek the advice of counsel, and in this context I remind myself of the need to make allowance for the way government functions.

ii) Secondly the question of causation, assuming the court were to find a lack of diligence in particular in relation to the initial 5 months when nothing was done expressly to address these options and/or the question of the claimant's safety on return. I accept that the question has to be addressed whether the Claimant would have been released earlier from administrative detention had the Defendant embarked upon his investigation earlier and it must not be assumed without more that such lack of diligence prolonged the detention by some 5 months. Mr Eadie for example suggested had the Defendant started earlier, effective assurances might well have been negotiated with the Iraqi authorities as it was only the intervention of elections later on in the year and the particular conditions on the ground of 31^st August (see again the FCO email of 1^st September) and late September (again the FCO email of he 27^th September refers) causing difficulties for the Embassy staff in engaging in with the requisite Iraqi Ministry, that had prevented these being obtained.

210. I am persuaded to a large degree by Mr Eadie's first set of submissions but not by his second. That is to say I am not prepared to find a lack of due diligence once the process of investigating and pursuing the various options was embarked upon (assuming, I repeat contrary to my primary finding, that it was legitimate to detain for the purpose of such process). The Defendant was not bound to accept the advice of his officials. Ultimately I do not feel able to say it was objectively unreasonable, when all other options had been exhausted, for the Defendant to pursue the MoD as hard as he did to November 2005, up to Secretary of State level and into the margins of the cabinet, given the obvious national security concerns that he claimant should not be set free in Iraq to join the insurgency. It is a fact that following the receipt of the final MoD response of 16^th November the defendant did act promptly to release the Claimant a week later, albeit into police custody.
211. However I am quite satisfied there was a lack of due diligence referable to the whole of the initial 5 months when nothing was done to investigate whether there was a reasonable prospect of the removal of the Claimant to Iraq within a reasonable time. I am satisfied this did unnecessarily and unreasonably prolong the claimant's detention by some five months and that the points taken by Mr Eadie on causation cannot succeed. Although I am not prepared to find that it was never ever going to be possible to negotiate effective assurances some time into the future for the purposes of the Iraqi option, I am quite satisfied that the probabilities are that the advice of the FCO in November 2005 would have been to like effect had it had been sought in the earlier part of the year and no other conclusion could have been reached than that there was no prospect of obtaining effective assurances in the foreseeable future. Moreover the other obstacle blocking the Iraqi option would still have been present, namely the continuing lack of available evidence of a serious crime committed within the Iraqi jurisdiction which was a prerequisite of any removal into Iraqi custody.
212. I should add that the fact the Claimant may or may not have gone straight into police custody pursuant to domestic criminal process had he been released earlier is in my judgment to nothing on the question of liability in these proceedings which goes only to the legality of the administrative detention by the Defendant. It might be relevant to damages although I should record that on the evidence in these proceedings at the earliest police custody was only a possibility in late October 2005 (see again the submission to the defendant of the 21^st of October).

Overall Conclusions

213. For the reasons stated I find the entirety of the detention in this case to have been unlawful and the Claimant succeeds on liability though I have also made clear that if the only basis upon which the claimant could succeed were by reference to the Hardial Singh principles relating to due diligence, then the finding of unlawful detention would be restricted to one of five months.
214. On the handing down of this judgment I will invite submissions as to the form of the order consequent upon this judgment.