QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
| KAMALAN GANESHARAJAH
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
David Blundell (instructed by the Treasury Solicitors) for the Defendant
Hearing dates: 4, 7 & 8 July 2014
Crown Copyright ©
Bobbie Cheema QC :
'Mr Ganesharajah has been assessed in line with the current requirements and does not qualify for release under rigorous contact management based on his non-compliance.'
'I am content to authorise detention on the basis of the evidence above. Mr Ganeshara [sic] has shown a propensity to re-offend and as such can be considered a harm to the public good. He has also refused to comply with the documentation process, and having previously disregarded immigration control, I am not satisfied that he would comply with conditions of release. At this stage, he is therefore not suitable for release on restrictions.'
'Sub had asked for an update. Because of this had chat with caseowner and I was going to attempt to get sub to sign ETD which he previously refused. However, whilst sub was waiting in interview block to be seen, he was asked by GLS to take back to his own block, his mobile phone, which he knows is not allowed in i/v block. He was unhappy with that and then said 'f*** immigration' and walked off.'
'Sub was called to interview block 4 times today so that I could serve DO on him. Finally got message at 1830 hours that he was not going to see me, as he hated UKBA and apparently what he said about immigration could not be repeated over the telephone! As I am about to finish my shift, I will deal tomorrow.'
'Subject does not meet the current criteria for release due to the nature of his convictions and also poses a risk of harm to the public if released due to these convictions. Subject also poses a high risk of non-compliance.'
'IS151F served on 5/1/9 and confirmation of conveyance returned by fax on 5/1. I am still trying to get sub to sign his ETD application….'
'Although Mr Kamalan has not committed an offence which makes him exempt from release under rigorous contact management'
'Only possible route for documentation has been via Operation Hamelia'
'Mr Kamala's non-compliance suggests that he would pose a very high risk of absconding if released. Mr Alex Forbes – Please advise whether you consider this case as suitable to be referred for release under rigorous contact management.'
'I am content to authorise detention on the basis of the evidence above. Subject is non-compliant and has no incentive to comply with conditions of release. I am also aware of his propensity to re-offend. Sam – can you please book in some time with me to go through the all avenues toolkit.'
Alex Forbes, Assistant Director
'I have considered whether detention is in line with the new detention policy. Although Mr Kamalan has not committed an offence which makes him exempt from release under rigorous contact management, he is a prolific offender and has shown a complete disregard for the laws of the UK'
"Authority to maintain detention given
I agree with your recommendation to maintain detention. The only barrier to removal is the ETD. Sub is not complying with the ETD process, however an Op Hamelia referral has been made to RGDU to see if an ETD can be obtained using information form the Subs [sic] file. Hopefully this will be successful and sub is still not complying.
Once and [sic] ETD has been agreed, RD's will be set and sub deported from the UK.
Based on the presumption of release, I have considered whether the continued detention of Ganesharajah Kamalan is lawful. In light of his risk of further offending and the harm that this may cause, as well as [his] likelihood of absconding, I consider these additional factors outweigh the presumption of release. I therefore authorise his detention for a further 28 days.
Continued detention authorised".
'I agree with your recommendation to maintain detention. The only barrier to removal is the ETD. Sub is not complying with the ETD process, and a section 35 referral has been made, Case owner has the country targeting team got no advise they could give you in obtaining a valid travel doc for sub? Can this case be referred to the next CTU stuck cases panel.
Once and ETD has been agreed, RD's will be set and sub deported from the UK.'
'highly unlikely that the subject will be removed in the next 3 months, he cannot be without a shadow of a doubt regarding his position and what is required of him, in order for him so that he can be returned to Sri Lanka and regain his liberty'
'Although removal is not imminent the risk of absconding and re-offending outweighs the presumption of liberty.'
Karen Abdel-Hady Deputy Director
'Subject seen at Dover IRC on 4 August 2009…Subject showed me a copy of an ECHR letter dated 23/07/2009 which gave the reference number: ECHR-LEO 1R and PHA/CLB/clv. I was unable to take a copy as Dover Visits Centre did not have copier or fax machine to use. Immigration were busy dealing with an incident so will need to request immigration at DIRC to fax over.'
'Although the subject has not committed an offence which makes him exempt from release under rigorous contact management…
Authority to maintain detention given:
Based on the presumption of release, I have considered whether the continued detention is lawful. In light of [his] risk of further offending and harm that this may cause, as well as the detainee's likelihood of absconding, I consider these additional factors outweigh the presumption of release, I therefore authorise [his] detention for a further 28 days.'
'I am content to authorise detention on the basis of the evidence above. However, it may be that the clear risks of absconding and re-offending may be mitigated by reporting restrictions. Please refer for release.'
'I support this proposal on the basis of the evidence above there is a significant risk of re-offending and of absconding. However, it may be that the clear risks of absconding and re-offending may be mitigated by reporting restrictions (particularly given the length of detention) – do you have a view?'
However the following was also recorded from Johnathan Nancekivell-Smith:
'Based on the presumption to release I have considered whether to continue the detention of the Mr Kamalan. In light of his risk of further volume offending and the harm that may cause, as well as their likelihood of absconding (given his multiple identities), I consider these factors outweigh the presumption to release. I therefore authorise their detention for a further 28 days. I note the court appearance for possible drug dealing in February, I would expect us to push for prosecution and if necessary a return to prison if convicted. Separately I would encourage the case owner to consult with senior case owners on the treatment of his early age at the time of entry to the UK, this may need specific and further referral depending on circumstances (which I note completely visible to me for just the detention review)'
'Subject seen at Harmondsworth IRC. I asked subject to complete ETD. I advised him that if he continues to refuse that he will only prolong his detention and his case with the ECHR will not be a priority case. The subject was thinking about it however he said that he needed to speak to his reps first.'
'Subject seen at Harmondsworth IRC today. The first thing the subject said when he entered the interview room was that he spoke to his rep and is not willing to complete the ETD. I went over his ECHR claim and explained the backlog of 30 years and that he is prolonging [sic] his detention.
However he informed me that he would rather stay in detention or prison than go home. I asked him why he didn't want to go back he said that he knew no one and it is a foreign country to him. I went over FRS and the benefits and asked him if he had residence in any other country apart from Sri Lanka. He stated he had an uncle in India and at first said he would be willing to try and go back there. When I said I would look into it and speak to his Caseworker about it he changed his mind and said that he didn't want to go anywhere and would rather stay in detention.'
'Email to [blank] (POISE), CTU, to enquire about having the subject interviewed by a Sri Lankan official as part of the pilot scheme. Response received on 30 July informing that CTU had recently ran a pilot scheme for barrier free (other than ETD) Sri Lankans where they were interviewed face to face by officials from the LKA HC at Colnbrook…Awaiting feedback from CTU regarding eligibility of this case for the pilot.'
' T/call to FRS prior to speaking to subject to clarify the basis for withdrawal of FRS as the letter refers to non compliance with bail conditions but CID notes indicated bail had been refused. However the file was not available to clarify the position prior to service.'
'No. Mr Kamalan has continued to frustrate the attempts to document him and now leads us to believe that he is Indian, which I don't agree with. We have his Sisters passport, which is Sri Lankan and a wealth of criminal records, including institution records, and should attempt to document him as a Sri Lankan. Please involve CSIT again in re-documenting him.'
'Healthcare at Morton Hall have advised that subject claims to be addicted to drugs, they cannot carry out any tests on the subject as they do not have a licence to do so, therefore the detainee cannot remain at Morton Hall. I have spoken to Duty CIO at DEPMU who advised that Harmondsworth have confirmed the detainee is not a drug addict. Harmondsworth have also advised that there was a healthcare to healthcare referral made and healthcare accepted. I am awaiting further information from Duty CIO at DEPMU as to the member of healthcare staff at Morton Hall who accepted the subject. The subject was part of a drug ring at Harmondsworth IRC.'
'Call to Harmondsworth healthcare…confirmed no healthcare to healthcare referral was made, which would explain why healthcare at Morton Hall have no record of this. Healthcare at Morton Hall cannot manage the detainee as they do not have a licence to detox as of yet. The detainee has stated that he was involved in taking illegal drugs in Harmondsworth (he was moved out of Harmondsworth for being part of a drugs ring).'
'Recommendation for release with electronic monitoring and weekly reporting on the basis that the prospect of removal in near future is very slim.'
'(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order 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 (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).'
Hardial Singh principles
(1) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
(2) The deportee may only be detained for a period that is reasonable in all the circumstances.
(3) 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.
(4) The Secretary of State should act with reasonable diligence and expedition to effect removal.
• the length of the period of detention;
• the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation;
• the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles;
• the conditions in which the detained person is being kept; the effect of detention on him and his family;
• the risk that if he is released from detention he will abscond; and
• the danger that, if released, he will commit criminal offences.
(1) There can be a 'realistic' prospect of removal without it being possible to specify or predict the date by which removal can reasonably be expected to occur and without any certainty that removal will occur at all ((MH) at ).
(2) The extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors ((MH)) at ).
(3) The risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it would become a trump card (Lumba at - and  citing Dyson LJ in R(I) at ).
(4) The weight to be given to time taken up by an appeal depends on the facts, but much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one (Lumba at .
(5) A detainee who will not comply with the ETD process or other requirements of detention and is doing everything he can to hinder the deportation process, may reasonably be regarded as likely to abscond (Lumba at ; MH at [68(iii)]).
(6) Refusal of voluntary return does not necessarily permit an inference of risk of absconding (Lumba at ).
(7) Where return is not possible (for reasons that are extraneous to the person detained), the fact that he is not willing to return voluntarily cannot be held against him, since his refusal has no causal effect (Lumba at ).
(8) Where a person has issued proceedings challenging his deportation, then it is reasonable that he should remain in the UK pending determination of those proceedings and his refusal to accept an offer of voluntary return is irrelevant (Lumba at ).
(9) Even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the SSHD's wish to detain. If it is relevant, its relevance is limited (Lumba at ).
(10) A breach of a principle of public law will render the detention unlawful but it must be a material breach, that is, a breach which bears on and is relevant to the decision to detain (Lumba at [66,68]).
(11) There is no maximum period after which detention becomes automatically unlawful.
GROUNDS OF CHALLENGE
Claimant's Substantive Issues
(i) Detention in the first two months as well as being unlawful (as is conceded by the Defendant), should give rise to more than nominal damages because the Claimant would not have been detained in any event, in particular the first five days of detention having been the subject of a concession during evidence;
(ii) Detention was unlawful throughout the period of over four and a half years per se and on classic Hardial Singh grounds. In particular it was in breach of the second Hardial Singh principle and the cognate protection under Article 5;
(iii) Detention was also unlawful because it was in breach of the fourth Hardial Singh principle and the cognate protection under Article 5;
(iv) If the detention was not over-long the Defendant should not have exercised the power to detain because it had become apparent that there was no longer a prospect of deportation within a reasonable period of time;
(v) The authorisation of detention was vitiated by material public law errors;
(vi) A particular material error was the failure to refer release of the Claimant to the Chief Executive or Board Member deputising in her absence.
Resisted by SSHD
(i) Should the Claimant be compensated in substantial or nominal damages for the admitted unlawful period of detention?
(ii)-(iv) Does the blanket policy still taint the detention of the Claimant from 9th September 2008 until his return to Sri Lanka on 28th February 2013 and was there a breach of the Hardial Singh principles ?
(1) His individual circumstances were not taken to account properly or at all after 9th September, so that it was unreasonable to detain him and
(2) The Secretary of State did not act with reasonable diligence and expedition to remove him.
It is therefore claimed that the 2nd and 4th Hardial Singh principles have been breached.
'…the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that if released he will commit criminal offences.'
'Subject does not meet the current criteria for release due to the nature of his convictions and also poses a risk of harm to the public if released due to these convictions. Subject also poses a high risk of non-compliance. Subject's removal should be within a reasonable timescale once an ETD has been granted.'
(v) & (vi) Was the authorisation of detention itself vitiated by public law errors
'Any decision not to detain or to release a time served foreign national prisoner on restrictions must be agreed at Grade 7/ Assistant Director level and authorised by the UK Border Agency's Chief Executive or board member deputising in her absence. Cases should be referred on the form below, which should cover all relevant facts in the case history, including any reasons why bail was refused previously.'