Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 111
P37/10	OPINION OF LORD BANNATYNE in the Petition of AM Petitioner: for Judicial Review of a Decision of the Secretary of State for the Home Department to detain the petitioner ­­­­­­­­­­­­­­­­­________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Webster; Office of the Solicitor to the Advocate General

11 August 2010

Background

The subject of the proceedings

[1] In this Judicial Review the petitioner sought reduction of the Secretary of State for the Home Department's (hereinafter referred to as "the respondent") decisions to detain the petitioner in terms of schedule 3 of the Immigration Act 1971 (hereinafter referred to as "the Act") from 20 December 2008 to the date of the hearing (hereinafter referred to as "the challenged decisions").

The factual background to the petitioner's detention
[2] The factual background was not generally in dispute and I was able to make the following findings from the pleadings; the productions; the statements made by counsel during the course of submissions and a chronology of events which was lodged by counsel for the respondent at the outset of the hearing and which I understood not to be in dispute in so far as it set out dates on which certain events had occurred.

[3] The petitioner arrived in the United Kingdom on 20 June 2005 at Heathrow Airport. He arrived on a South African passport. He entered the country on a working Holiday Maker Visa valid until 25 April 2007. He was found on arrival to have concealed 1 kilogram of heroin in his stomach and on 18 October 2005 was convicted of a relevant offence. On 1 December 2005 he was sentenced to 7 years imprisonment and the court further recommended his deportation. The petitioner was due to be released from the custodial part of his sentence on 20 December 2008. He was then detained by the respondent and has been held in custody since that date by the respondent, in terms of Schedule 3 of the Act, pending his deportation.

[4] The following events material to the discussion before me have occurred between 16 December 2005 and 28 October 2009:

"16/12/05 The petitioner signed a bio data form. Details given as:-

(i) Last known address - 13 Zone no10, Ranga, South Africa

(ii) Sisters - Amanda Mbulawa, deceased

- Nonthomd Mbulawa, deceased

(iii) Brothers - Siniko Mbulawa, address as above, 15 yrs old

- Manges Mbulawa, deceased

(iv) Mother - Nonikelela Mbulawa, address as above, 62 yrs old

(v) Father - Anele Andile Mbulawa, deceased

07/02/06 ETD application received by RGDU. An ETD is a travel document required for the petitioner to enter South Africa

10/05/06 The petitioner had a telephone interview with the South African authorities where he allegedly claimed to have stated that he was not a South African national.

26/06/06 The petitioner was served with a notice of liability to deport letter and a status questionnaire. He replied, confirming that he was single, without children and that his mother, brother and sister resided in South Africa.

06/07/06 The petitioner was served with a Notice of intention to Deport letter.

19/07/06 A fax was received from RGDU notifying that the South African authorities had refused to issue an ETD for the petitioner as they did not believe him to be a South African national.

26/07/06 The subject was served with a Notice of Intention to Deport letter.

27/06/07 Petitioner signed bio data form. Details given as:-

(i) Previous address in your own country - Zone 13, Langa, Cape Town

(ii) Mother's address - D151 Monde Str, Khayelitsha, Cape Town

(iii) Notes he is not married

17/07/07 CID note states that RGDU cannot get any other details of why the ETD was refused.

18/07/07 A signed Deportation Order was served on the petitioner. He did not appeal against deportation.

31/08/07 FRS refused.

27/06/08 Passport photos were sent to the South African Team in GDU to progress the ETD application.

09/07/08 Fax sent to RGDU to request a progress update for the case

14/07/09 Phone call received from the South African authorities requesting that RDs be set for the subject.

11/08/08 The petitioner was released as part of the ERS scheme and entered IS detention.

12/08/08 Removal directions to ZAF were due to take place on this date but the ZAF authorities revoked the petitioners ETD as they did not believe him to be a ZAF national. The subjects phone interview with the ZAF authorities on 10/05/05 came to light.

12/08/08 The petitioner was returned to custodial detention to serve the remainder of his sentence.

12/09/08 The documentation unit closed the case (ISDU: 32043). No further progress was made regarding chasing a document or making a re-application to the ZAFs.

10/12/08 Faxed latter received from petitioner and questionnaire. (Lodged by petitioner productions 6/8 and 6/9).

(i) Previous address noted as No 29 Vecsand, Atlantis, South Africa

(ii) Mother's current address noted as No 51, Mote Str, Khayelitsha, Cape Town

(iii) Siblings - only two noted. Nantombi Mbulawa and Siyabuleta Mbulawa. Dates of birth 1975 and 1971 respectively and both noted as having current addresses in Mwata, South Africa. However, in covering letter states that his siblings died in 2003 and 2008 and that he wants to go home as his mother is ill. Names different to those given in 2005.

30/04/09 The petitioner's application for bail was refused.

08/05/09 The petitioner had an asylum interview. This claim was treated as an application to revoke a DO.

08/05/09 Screening Interview (information given by the petitioner)

(i) Last permanent address - 29 Vecsand, Atlantis, South Africa

(ii) Siblings - only two mentioned at questions 4.3 and 4.4. (iii) Marital status - single - question 4.1

08/05/08 SEF (self evaluation form completed by petitioner)

(i) Last address in country of origin - 29 Vecsand, Atlantis, Cape Town

(ii) Questions 25 and 26 - reference to brother and sister being deceased.

(iii) Question 28 - reference to mother being helped by other people in village. In 2007, above address for mother is living in Cape Town - not village.

(iv) Marital status single - question 13a.

02/06/09 The subject was served with a letter refusing to revoke this DO.

18/06/09 The subjects case was transferred to CCD Leeds.

22/06/09 Subjects HO file was received in CCD Leeds - unsure when a new case owner was assigned

25/06/09 Request for TA received

07/07/09 RGDU contacted re: ETD, advised that the case was closed

08/07/09 TA refused.

15/07/09 T/C received form petitioner was updated and advised on how he could progress his case quicker. Advised that he can contact the ZAF authorities directly.

16/07/09 T/C received from Ashura Mohammed Issa (J1027519) claiming to be the Petitioner's wife. She advised that the petitioner had contacted the ZAF authorities and that they did not accept him. Checks made on Ms Issa showed that she has no mention of a husband on her records and no reference to her on his. Therefore no information was given to her in subsequent phone calls.

17/07/09 Fax sent to Dungavel to request they give the subject the opportunity to contact relatives in ZAF if he should wish.

24/07/09 Bail application received.

29/07/09 Bail refused - Further bail application received.

31/07/09 Bail withdrawn at hearing

03/08/09 Bail application received.

06/08/09 Bail refused - Further bail application received.

12/08/09 Pro-Forma sent to the subject to authorise language analysis

13/08/09 Bail refused - Further bail application received.

14/08/09 Bail refused - Further bail application received.

18/08/09 Bail refused.

20/08/09 Info from Dungavel.

Bail application received. T/C to Dungavel to chase language analysis pro-forma. They confirmed that the petitioner was refusing to sign and had been given every opportunity to contact relatives in ZAF but was now claiming he did not have any relatives. Faxed copy of petitioner's statements received.

21/08/09 Bail refused.

01/09/09 Bail application received.

03/09/09 Bail refused.

04/04/09 Bail application received.

08/09/09 Bail refused.

09/09/09 Bail application received.

11/09/09 Bail refused - Further bail application received. Following independent enquiries with ZAF authorities they state that the petitioner may be Zambian due to his accent.

15/09/09 Bail refused

25/09/09 Nationality Interview At Dungavel

Petitioner turned up late and gave no further information regarding nationality.

29/09/09 Bail application received.

01/10/09 Bail refused.

12/10/09 Zambian interview arranged for 16/10/09

16/10/09 Telephone interview attempted but IO was unable to get through to the Zambian HC.

19/10/09 Bail application received

20/10/09 Petitioner withdrew bail application

26/10/09 Zambian interview re-arranged for 28/10/09

28/10/09 Zambian interview went ahead but petitioner claims that he was not Zambian, had never been to Zambia and that his parents were from ZAF. Zambian authorities did not believe from his accent that he was Zambian and that he sounded ZAF. - Further bail application received.

As at the date of the hearing before me the South African Authorities were not willing to accept the petitioner's return to that country.

Grounds of challenge

[5] (1) The respondent has continued the petitioner's detention when there has been no prospect of his being removed in the foreseeable future. Accordingly detention cannot be said to be for the purpose of removal.

[6] (2) Further and in any event, the respondent has insisted on maintaining the petitioner's detention beyond any period that might in all the circumstances of the case be considered to be reasonable.

The Relevant Legislative Framework
The domestic law
[7] Section 5 of the Act provides that the provision of Schedule 3 to the Act are to have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation. In schedule 3, paragraph 2(3) it is provided:

"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) and (2) above when the order is made, shall continue to be detained unless (he is released on bail or) the Secretary of States directs otherwise."

The European Convention on Human Rights

[8] Article 5(1)(f) was relied upon by counsel for the petitioner in the course of his submissions. It provides inter alia that:

"Right to liberty and security

(1) 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 to prevent his affecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or"

Directive 2008/115/EC of the European Parliament and of the Council

[9] Counsel for the petitioner in addition relied on in the course of his submission on the terms of the above (hereinafter referred to as "the Directive"). The material parts of the Directive for the purposes of this case are:

"Article 2

...

2. Member States may decide not to apply this Directive to third country nationals who:

...

(b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.

...

Article 15

Detention

1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

(a) There is a risk of absconding or

(b) The third country national concerned avoids or hampers the preparation of return or the removal process.

Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.

...

4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each member state shall set a limited period of detention, which may not exceed 6 months.

6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further 12 months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:

(a) a lack of co-operation by the third country national concerned, or

(b) delays in obtaining the necessary documentation from third countries."

[10] The Directive was published on 16 December 2008 and signatory states have until 24 December 2010 to make the Directive part of their domestic law. The United Kingdom by Recital 26 is not taking part in the adoption of the Directive and is therefore not bound by it in its entirety or subject to its application.

The submissions on behalf of the petitioner

[11] Counsel commenced his address by submitting that the domestic law in relation to persons awaiting deportation was now as set out in AAS v SSHD 2010 CSIH 10. At paragraphs 14 to 16 of the Opinion of the Court the proper interpretation of Section 5 and schedule 3 paragraph 2(3) of the Act is considered. In the Opinion of the Court it was confirmed that the authoritative interpretation of the said provisions and therefore of the nature of the power to detain in such circumstances was as set out by Woolf J at page 706 in Regina v Durham Governor of Durham Prison ex-parte Hardial Singh 1984 1 WLR 704 where he said:

"Although the power which is given to the Secretary of State in para 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. 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 in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on 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 provided 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 seek to exercise his power of detention."

[12] The Court in the AAS case further opined that when considering the said provisions certain observations of Dyson LJ in R (I) v Secretary of State for the Home Department 2002 EWCA Civ 888 require to be borne in mind. At paragraph 46 of his judgment Dyson LJ set out principles which he considered applicable in a case where the lawfulness of detention was an issue:

"In my judgment (counsel) correctly submitted that the following four principles emerge:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances.

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.

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

Having regard to that background counsel submitted that the questions for the court in the instant case were:

1. Has the reasonable period elapsed?

2. Is it clear that it is going to elapse with out the petitioner having been deported?

He submitted that if the court answered either of these questions yes then the detention was unlawful. It was his position that the answer to both of these questions was yes.

He submitted that in addition to the above two questions there was a third question and that was whether in seeking to deport the petitioner the respondent had shown due diligence. It was his position that the respondent had not shown due diligence.

[13] Finally counsel referred me to paragraphs 14 and 15 in the AAS case:

"Dyson LJ in paragraph 50 agreed with the other judges in the case that an appellant's refusal of voluntary repatriation was a relevant circumstance in considering the lawfulness of detention, although the weight to be given to that factor was not the subject of agreement. In paragraph 51 in relation to that factor he said:

'But in my judgment, the mere fact (without more) that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable.'

15. While in R(I) v Secretary of State for the Home Department there was no agreement as to the weight to be given to a refusal to accept voluntary repatriation, that was not the position in A v Secretary of State for the Home Department. In paragraphs 54 and 55, Toulson LJ, delivering the judgment of the court, said:

'I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making.

55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences... The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.'"

[14] Having set out the domestic law regarding the proper construction of and approach to the relevant legislation counsel then turned to examine the role of the court and under reference to R(A) v SSHD 2007 EWCA Civ 804 and in particular the judgement of Lord Justice Keene at paragraph 71 and KM v SSHD 2010 CSOH 8 the opinion of Temporary Judge Reid QC at paragraph 52, he submitted that the function of the court was not to review on Wedensbury or rationality principles the decision of the respondent to detain. Rather,

"The Court is now the decision maker and decides for itself whether the Petitioner's detention was justified at the outset and whether his detention continues to be justified, taking into account all relevant circumstances."

Per Temporary Judge Reid QC at paragraph 52 in KM v SSHD.

[15] Counsel next turned to examine Article 5(1)(f) of the European Convention of Human Rights.

[16] Counsel immediately accepted that the said Article permitted detention for the purposes of deportation. The question therefore was how should that power be interpreted by this court.

[17] Counsel submitted that a recent decision of the Grand Chamber in the case of Demir and Baykara v Turkey application No 34503/97 dated 12 November 2008 was of assistance in answering this question. It was his position that the court had made significant new comments in relation to the proper interpretation of all of the Articles of the convention.

[18] The facts of the case are not material for the purposes of this case.

[19] Counsel referred me to paragraphs 76 to 84 of the judgment which are in the following terms:

"76. The Court recently confirmed, in the Saddi v The United Kingdom judgment (cited above, § 63), that when it considers the object and purpose of the Convention provisions, it also takes into account the international law background to the legal question before it, being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standard of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty.

77. By way of example, in finding that the right to organise had a negative aspect which excluded closed-shop agreements, the Court considered, largely on the basis of the European Social Charter and the case-law of its supervisory organs, together with other European or universal instruments, that there was a growing measure of agreement on the subject at international level (see Sigurour A. Sigurjonsson v Iceland, 30 June 1993, § 35, Series A no. 264; and SØrensen and Rasmussen v Denmark [GC], nos. 52562/99 and 52620/99, §§ 72-75, ECHR 2006-...).

78. The Court observes in this connection that in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State.

79. Thus, in the Marckx v Belgium case, concerning the legal status of children born out of wedlock, the Court based its interpretation on two international conventions of 1962 and 1975 that Belgium, like other States Parties to the Convention, had not yet ratified at the time (Marckx v Belgium, 13 June 1979, §§ 20 and 41, Series A no.31). The Court considered that the small number of ratifications of these instruments could not be relied on in opposition to the continuing evolution of the domestic law of the great majority of the member States, together with the relevant international instruments, towards full juridical recognition of the maxim "mater simper certa est".

80. Moreover, in the cases of Christine Goodwin v The United Kingdom ([GC], no. 28957/95, ECHR 2002-VI), Vilho Eskelinen and Others v Finland ([GC], no. 63235/00, ECHR 2007-...) and SØrensen and Rasmussen v Denmark (cited above), the Court was guided by the European Union's Charter of Fundamental Rights, even though this instrument was not binding. Furthermore, in the cases of McElhinney v Ireland ([GC], no. 31253/96 ECHR 2001-XI), Al-Adsani v The United Kingdom (cited above) and Fogarty v The United Kingdom ([GC], no. 37112/97, ECHR 2001-XI), the Court took note of the European Convention on State Immunity, which had only been ratified at the time by eight member States.

81. In addition, in its Glass v The United Kingdom judgment, the Court took account, in interpreting Article 8 of the Convention, of the standards enshrined in the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997, even though that instrument had not been ratified by all the States parties to the Convention (see Glass v The United Kingdom, no. 61827/00 § 5, ECHR 2004-II).

82. In order to determine the criteria for State reasonability under Article 2 of the Convention in respect of dangerous activities, the Court in the Öneryildiz v Turkey judgment, referred among other texts to the Convention on civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS no.150 - Lugano, 21 June 1993) and the Convention on the Protection of the Environment through Criminal Law (ETS no.172 - Starsbourg, 4 November 1998). The majority of member States, including Turkey, had neither signed nor ratified these two Conventions (see Öneryildiz, cited above, § 59).

83. In the Taşkin and Others v Turkey case, the Court built on its case-law concerning Article 8 of the Convention in matters of environmental protection (an aspect regarded as forming part of the individual's private life) largely on the basis of principles enshrined in the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (ECE/CEP/43) (see Taşkin and Others v Turkey, no. 49517/99, §§ 99 and 119, 4 December 2003). Turkey had not signed the Aarhus Convention.

84. The Court notes that the Government further invoked the absence of political support on the part of member States, in the context of the work of the Steering Committee for Human Rights, for the creation of an additional protocol to extend the Convention system to certain economic and social rights. The Court observes, however, that this attitude of member States was accompanied, as acknowledged by the Government, by a wish to strengthen the mechanism of the Social Charter. The Court regards this as an argument in support of the existence of a consensus among Contracting States to promote economic and social rights. It is not precluded from taking this general wish of Contracting States into consideration when interpreting the provisions of the Convention."

Counsel took from the said case the following: first when considering the scope of Article 5(1)(f) in relation to the issue of detention the court must have regard to the international law background relevant to that issue and included within that general background were international instrument of various types. Secondly and critically for the purposes of the argument he intended to develop even if the United Kingdom was not a party to such an instrument it was nevertheless he submitted a document to which I must have regard.

[20] The said submissions took counsel to the Directive. Counsel recognised that the United Kingdom is not taking part in the adoption of this Directive and is therefore not bound by it or subject to its application (see: paragraph 26 of the preamble). He accordingly accepted that in terms of the United Kingdom's European Union obligations this Directive did not directly become law in the United Kingdom.

[21] Nevertheless, it was his position that having regard to the principles of interpretation of the Articles of the Convention laid down in: Demir and Baykara v Turkey the Directive became law in the United Kingdom. He submitted that in that 23 European countries had adopted the Directive it became a European norm or standard. It was accordingly made part of United Kingdom law in that in interpreting the scope of Article 5(1)(f) regard must be had to the terms of it.

[22] His submission on this point fell into parts:

(1) Given the guidance in Demir and Baykara the Directive is binding and (2) his secondary position was that if it was not binding it was relevant and regard should be had to it when considering the scope of the petitioner's rights in terms of Article 5(1)(f).

[23] Counsel particularly relied on the terms of Article 15(5) and (6) of the Directive. His position was that having regard to the terms of these parts of the Directive a proper interpretation of Article 5(1)(f) was that no person such as the petitioner can be detained for the purposes of deportation for a period of more than 18 months. Detention beyond a period of 18 months for the purposes of deportation could not now be held to be reasonable, 18 months was the absolute maximum. His submission was that the Starsbourg Court if it looked at this issue would hold that the Directive established a European norm and would interpret Article 5(1)(f) in relation to the issue of detention for deportation in conformity with the terms of the Directive. Accordingly, he submitted that the Directive was binding on this court. His alternative position was that if the Directive was not binding on this court then it was a relevant matter of considerable weight when considering the proper interpretation of the scope of Article 5(1)(f) and the same result was reached that detention for longer than 18 months was not reasonable and therefore unlawful.

[24] Counsel submitted that the terms of Article 2 of the Directive which allows Member States to decide not to apply this Directive to third country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction into which category be accepted that the petitioner fell did not in any way effect the establishment of the norm that a person could only be held for a maximum of 18 months. He emphasised that in his submission every detention for immigration purposes was unlawful until the Secretary of State showed that it was lawful. It was accordingly not for the petitioner to establish that Article 15 was now the norm but rather it was for the respondent to establish that Article 15 was not the norm. He advised that his understanding of the current position regarding Article 2 was that no State had so far decided not to apply the Directive, however, Malta and Italy had indicated that they intended not to apply in terms of Article 2(b).

[25] It was counsel's submission that Article 15 set out the norm. It was counsel's position that Article 2 on a proper construction was merely a voluntary exception to the norm and not the norm. He pointed out that 23 countries were parties to the Directive and only two of these it appeared intended to make use of the opt out in Article 2. It was his position that this added considerable weight to his submission that the norm was as set out in Article 15. In addition he pointed to the fact that many of the cases cited in paragraphs 76 to 84 in the Demir and Baykara case the instruments which had been recognised as establishing norms had been ratified by quite a limited number of parties. It was his submission that 23 parties signing up to the Directive provided a powerful international norm.

[26] Counsel advised that there was a single European Union decision in which the Directive had been considered, namely: Judgment of the Court (Grand Chamber) of 30 November 2009 (reference for a preliminary ruling from the administrativen sad sofija-grad-Bulgaria) - Said Shamilovih Kdzoer (Huchbarov). In that case the Grand Chamber had held inter alia as follows:

"6. Article 5(4)(6) of Directive 2008/115 must be interpreted as not allowing, where the maximum period of detention laid down by that directive has expired, the person concerned not to be released immediately on the grounds that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose."

Counsel also accepted that from this case it was clear that the 18 month period applied only to the period when the petitioner was in detention for the purposes of deportation.

[27] Counsel accepted that the 18 month period in relation to the petitioner had not expired. However, having regard to the whole background of this case, there was no prospect of the petitioner being deported within the next six weeks (at which point the 18 month period would have expired).

[28] It was accordingly counsel's position (a) that there was a maximum of 18 months which the petitioner could be kept in detention for deportation and (b) if there was no real prospect of removal to the third country namely South Africa and he submitted there was no such prospect and had been no such prospect for some time then although within the 18 months the detention of the petitioner had become unlawful and should stop immediately.

[29] Turning to the facts of the case it was his submission first that there was no reasonable prospect of the petitioner being returned to South Africa. Critically in support of this submission he pointed to the fact that the respondent had without success been seeking to return the petitioner to South Africa for some 52 months i.e. since 7 February 2006. Since that date the respondent had been seeking to obtain an ETD, which the petitioner now accepted was necessary for him to return to South Africa. The respondent had been entirely unsuccessful in obtaining this document. The process in seeking to return him to South Africa had started well prior to the expiry of his prison sentence. However, despite the petitioner's insistence that he was South African and his wish to return to South Africa the South African Authorities since 12 August 2008 had consistently refused to accept that he was a South African citizen and to allow him to return to that country.

[30] Counsel's position was that if after 52 months the respondent had not been able to obtain the petitioner's return to South Africa it could not be said that there was any reasonable prospect of his return. There was no sign of the South African Authorities altering their position.

[31] He submitted that the petitioner on a proper view of the way he had acted throughout that 52 months wished to return to South Africa. It was his position that on a proper understanding of the whole history the petitioner had sought to cooperate with the respondent by providing as much information as he could which would assist in his return. He accepted that there were inconsistencies in information that had been provided to the respondent by the petitioner at various stages relative to matters such as the petitioner's family. This, he explained had resulted through changes in his family circumstances arising through death of relatives. Other differences had arisen through misspelling of names and difficulties in supplying addresses where addresses in places such as townships in South Africa did not in any true sense exist. It was his position that at no time had the petitioner sought to frustrate the respondent's efforts to return him to South Africa. He in particular denied that shortly prior to August 2008 he had informed the South African Authorities that he was not South African. It was his position that on any view the petitioner had been held for a period which was longer than reasonable and therefore unlawful

[32] Lastly, turning to the issue of due diligence on the part of the respondent it was his position that the respondent had to use due diligence to effect the petitioner's removal and in this the respondent had failed. He made no criticisms of the respondent's efforts to have the petitioner removed up until 12 August 2008. However, thereafter it was his position that the respondent had failed during lengthy periods to show due diligence. It was his position that from when the petitioner's prison sentence ended in December 2008 until July 2009 no action was taken by the respondent to further his deportation. It was only at that stage that the respondent started investigations. He accepted that thereafter there had been frequent contacts on the respondent's part with the South African Authorities however, secondly the petitioner had sought to undergo a language examination by letter dated 2 September 2009 and despite this request the language test was not carried out until 10 February 2010 five months after the request. The report prepared as a result of that test was dated 12 April 2010 and as at the date of the hearing before me no action had been taken following on there from. For these reasons he submitted that the respondent had failed to show due diligence and accordingly the detention was unlawful.

Submissions on behalf of the respondent

[33] Counsel began by looking at the domestic law. He accepted that the test for the court in deciding whether the detention of the petitioner was unlawful was as set out by Woolf J in Regina v Durham Prison Governor ex-parte Hardial Singh page 706 to which I have earlier referred in this Opinion.

[34] Turning to what are the factors which are appropriate to have regard to in considering the issue of reasonableness he referred to R (I) v The Secretary of State for the Home Department at paragraph 48 where Dyson LJ states that the following factors are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation:

"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."

He then drew my attention to paragraphs 49 to 53 in Dyson LJ judgment as to the relevance and weight which should be given to the fact of self endued detention (which in counsel's submission was a major factor in the case before me). Dyson LJ came in summary to the view that the mere fact, without more, that a detained person refuses the offer of voluntary repatriation cannot make reasonable a period of detention which would otherwise be unreasonable.

[35] Counsel submitted that in relation to the issue of the weight which should be attached to the fact of self endued detention I should prefer the analysis of Temporary Judge Reid QC in KM v SSHD set out in paragraphs 66 to 69 of his decision in which he comes to the view that significant weight should be attached to self induced detention.

[36] Having looked at the domestic law counsel turned to consider Article 5(1)(f) and the effect of the Directive on the proper construction of the scope of the said Article. He dealt with this issue in a series of succinct points:

1. The Directive was not binding on this court. There was nothing in the Starsbourg jurisprudence to the effect that such a document was binding rather it was merely a tool or aid to interpretation, if required in order to properly understand the operation and scope of Article 5.

2. It was not relevant in the instant case, in that it was not required as an aid to a proper interpretation of the scope of Article 5. The domestic law was well understood. The question for the court was whether the detention in all the circumstances was reasonable. The concept of reasonableness in this context was well understood.

3. If there was any need for an aid to construction the Directive did not provide it, in that the Directive did not set up an international norm.

All that the Directive provided was a single example of an introduction of an 18 months arbitrary period. That on its own could not amount to an international norm.

4. In any event having regard to Article 2 of the Directive no norm was created.

5. Even if a consensus was established by the Directive that consensus was that the 18 month period did not apply in relation to a detained prisoner.

It was thus his position that I should not for the foregoing reasons on the basis of the directive hold that any detention beyond 18 months was necessarily unreasonable and therefore unlawful. The test therefore remained that set out by Woolf J in Hardial Singh.

[37] Counsel then turned to the questions (1) had the petitioner been held for a period which in all the circumstances was not reasonable and (2) will the respondent be able to deport within a reasonable period? counsel first generally observed that the respondent's attempts to return the petitioner to South Africa had not been wholly unsuccessful. In August 2008 a travel document had been obtained and was only withdrawn at the last minute by the South African Authorities. The reasonable inference from this was that there were reasonable prospects of the petitioner's return to South Africa. It was by no means impossible that a further travel document would be obtained. This position was reinforced by the South African Authorities never having said that they were unwilling to discuss with the respondent's officials the petitioner's return to South Africa.

[38] Discussions were ongoing, there were to be further discussions in June between the respondent's officials and the South African Authorities. The South African Authorities were to be provided with the result of the language analysis, which strongly suggested that the petitioner was South African. Thus, there was further material information to be provided to the South African Authorities supporting the petitioner's position that he was South African.

[39] If further discussions at Home Office level were not successful there were further steps which could be taken to seek to have the petitioner returned to South Africa. The respondent intended that the matter should be transferred from the Home Office to the Foreign and Commonwealth Office for interstate discussions. Against that whole background there remained reasonable prospects that the petitioner would be returned to South Africa within a reasonable period. This was not a case where on the information it could be said that there were no prospects of the petitioner's return to South Africa.

[40] Counsel's second general observation was this: what we have in this case is a petitioner who was not offering proper assistance in relation to his deportation. He was frustrating the respondent's efforts to convince the receiving State, namely South Africa that he was a South African national. Thus, he was preventing his return to South Africa and seeking to achieve his release in this country which wishes to deport him. In so doing he was frustrating proper immigration control. He generally submitted that the petitioner was supplying contradictory and conflicting information to the respondent and not giving information which was required in order to return him to South Africa. The reasonable inference from this behaviour was that if released in the United Kingdom he would seek to avoid immigration control and his return to South Africa.

[41] Against the background of reasonable prospects for his return and the reasons for his not having been returned to date, namely his own actings counsel submitted that his detention remained lawful.

[42] In support of the foregoing counsel proceeded to analyse in some detail the petitioner's conduct.

[43] He first submitted that the circumstances of the petitioner's arrival in this country, his arrest and conviction for a very serious matter pointed to his being a substantial risk of reoffending and of avoiding the authorities if released.

[44] He secondly submitted that the petitioner had provided clearly inconsistent and contradictory information to the respondent. He contrasted the information provided in 6/8 of process, produced by the petitioner at the end of his prison sentence (10 December 2008) and the information provided in the bio data information 7/4 of process produced by the pursuer on his entry to the country dated 16 December 2005. He highlighted the following differences between these two documents:

(a) The last known address in the two documents is completely different.

(b) The petitioner's mother's address in the two documents is different.

(c) The names of his brothers and sisters in the two documents are different.

(d) The dates of birth of his siblings given in the two documents are different.

(e) His sister who is said to be deceased in the 2005 document is said to be alive in the 2008 document.

(f) 4 siblings in the 2005 document, (3 deceased), 2 siblings in the 2008 document, both alive.

(g) In a Letter from the petitioner to the UK Borders Agency 6/9 of process he states that his brother died in 2003. However, in 7/4 of process which was completed on 16 December 2005 his brother is said to be alive. Also in 6/9 of process he states that his sister Sara died in 2008, however, in 7/4 of process his sister is said to be already dead as at 16 December 2005. In addition in 6/9 of process he states that both his brother and sister are alive and he gives current address for them.

[45] Counsel submitted that the foregoing was demonstrative of the contradictory information given to the respondent and of the difficulties that the respondent and South African Authorities have had in getting consistent information from the petitioner particularly in relation to persons who could be contacted in South Africa and who might be in a position to confirm his South African Nationality.

[46] Counsel went on to submit that information given by the petitioner to the respondent regarding addresses in South Africa had not been sufficiently specific. As an example of this he referred to the address given for his brother and sister in 6/8 of process which were so vague as to be of no assistance.

[47] In 6/8 and 7/4 of process the petitioner gives information about the schools which he had attended in South Africa. Comparing the information which he provided in the said two documents it did not match. It was in fact entirely different as regards what schools he had attended and when he had attended them. Again he submitted that this contradictory information which had been provided relative to the schools which he had attended created substantial difficulties for the South African Authorities in establishing his South African Nationality.

Turning to a screening interview which was conducted with the petitioner No 7/5 of process, counsel pointed to paragraph 2.11 where the petitioner stated that his normal occupation was a businessman selling jewellery. He then pointed to 7/4 of process where the petitioner described himself as a self-employed welder.

[48] At paragraph 4.3 of 7/5 of process the petitioner stated that both his brother and sisters are deceased, however, that was different from his position in other documents as referred to above.

[49] In paragraph 4.1 of 7/5 of process he claimed to be single although he now claimed to be married.

[50] Counsel went on to submit that these were not the only difficulties that the respondents had encountered arising from the actings of the petitioner. He highlighted the following:

(a) On 16 July 2009 an Ashura Mohammed Issa approached the respondent's department claiming to be the petitioner's wife. Prior to that point the petitioner had never indicated that he was married, rather he had indicated that he was single. As above referred to in 7/5 of process, when checks were made on Miss Issa they showed that she had made no mention of a husband on her records and there was no reference to her on any documentation prepared by the petitioner.

(b) In or about July 2009 the petitioner was requested to contact relatives in South Africa. As was made clear by 7/2 of process a copy of a decision to refuse bail on 7 August 2009, paragraph 9 the petitioner suddenly at that time disclosed the existence of paternal relatives in South Africa. He had prior to that date never disclosed the existence of such relatives.

(c) In 7/3 of process a further decision to refuse bail dated 9 September 2009 counsel pointed out that at paragraph 8 thereof the petitioner claimed that all his family were dead. This again is different from the documentation to which he had earlier referred.

[51] For the foregoing reasons counsel submitted that the detention was not unlawful. It was his position that it was the respondents own fault that he had not been returned to South Africa. This had resulted from his failure to cooperate with the respondent.

[52] So far as the issue of due diligence was concerned counsel submitted that the petitioner may be able to point to periods where there had not been great activity by the respondent and things could have been done more efficiently. However, when looked at in the round what the chronology showed was general ongoing progress in light of a recalcitrant petitioner who if he did provide information provided conflicting information, if not information deliberately designed to frustrate early resolution of his case.

Discussion

The effect of the Directive.

[53] The first matter which in my judgement logically requires to be considered is whether in the light of the terms of the directive a person such as the petitioner can only be held in detention awaiting deportation for a maximum of 18 months and that any period of detention beyond that time is unreasonable and therefore unlawful.

[54] I take as my starting point that in terms of Section 2 of the Human Rights Act 1988 the court in determining any question in connection with a convention right must have regard to any judgment of the European Court of Human Rights. Thus, in considering the petitioner's rights in terms of Article 5(1)(f) I must have regard to the decision in Demir and Baykara v Turkey.

[55] As to the whether the Directive is binding on this court I reject the petitioner's argument that it is binding. It is clear on an examination of paragraphs 76 to 84 of the Demir and Baykara case that what the court says is that the international background to the legal question before it which may be found in instruments such as the directive may be had regard to by the court in seeking to clarify the scope of an Article of the convention. Thus, in certain circumstances an instrument such as the Directive might provide an aid to the proper construction of the scope of an Article of the convention. What, in my view, is not to be taken from this case is that in deciding the scope of a particular Article of the convention the court is bound by the terms of an instrument such as the Directive.

[56] Secondly, in my view it is important to note in what circumstances it was considered by the court in the Demir and Baykara case that recourse to such an instrument should be had as an aid to construction. At paragraph 76 of the judgment the court said:

"The court recently recently confirmed, in the Saddi v The United Kingdom judgment...that when it considers the object and purpose of the Convention provisions, it also takes into account the international law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standard of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty." (Emphasis added)

[57] Thus it is only where the scope of a right is uncertain and more conventional means of interpretation have failed that to cure that uncertainty recourse would be had to such an instrument as the directive.

[58] In the course of the discussion before me it was not submitted by counsel for the petitioner that in any case had it been held by the European Court of Human Rights that if the Hardial Singh principles were complied with then nevertheless there could be a breach of Article 5. As I understand the position it has been broadly accepted in the cases to date that a person in the petitioner's position was in terms of the common law (domestic law) in the same position as in terms of Article 5 of the convention i.e. the rights in terms of each were co-extensive. In this context I note that in R(I) v The Secretary of State at paragraph 8 the following is said: when considering a challenge in terms of domestic law and Article 5 to the detention of an individual:

"It was common ground before us, rightly as I believe that the Strasbourg jurisprudence adds nothing to the domestic law."

Thus, in my judgment the petitioner's rights in terms of Article 5 are well understood and well established, namely: they are in fact as set out in the Hardial Singh principles. Thus there is no need to use the Directive as an aid to construction of the scope of the petitioner's rights in terms of Article 5. His rights have already been established with a sufficient degree of certainty by Hardial Singh.

[59] Further, I believe, that the imposition of an 18 months maximum detention period for a person such as the petitioner by reference to the Directive as an aid to construction would very much tend to run counter to the Hardial Singh principles in terms of which there is no fixed period beyond which detention becomes unreasonable. Rather in terms of the said principles the court should have regard when considering the issue of whether the detention is lawful to whether in all the circumstances the period for which the person has been detained or is likely to be detained is reasonable. Thus even if the ECHR were to look to the directive at all it seems to me that it runs counter to the recognised position of having regard to all the circumstances to establish what was reasonable and therefore is unlikely to effect their construction of Article 5 rights in this context. In my judgement to follow the Directive would be to depart from the prior case law and I can see no good reason why the court should do that.

[60] Accordingly for the above reasons I would agree with the submission made by counsel for the respondent that there is no need to make reference to the Directive as an aid to ascertaining the scope of the petitioner's Article 5 rights.

[61] If I am wrong in holding that there is no necessity for the court to have regard to the Directive in order establish the scope of the petitioner's Article 5 rights then the next question which would arise would be this: does the Directive create a norm or standard in relation to a person detained for the reasons which the petitioner is detained to which the court should have regard?

[62] Counsel for the respondent said that the answer to this question was no and pointed to the Directive being a single instrument which was not international in its extent and was in fact confined to only a number of Western European Nations.

[63] I am of the view that the fact that this is only a single instrument does not of itself mean that it cannot amount to a norm or standard to which regard should be had as an aid to construction. In my view the Directive establishes that a large number of European Nations have agreed a common standard in relation to certain matters covered within the Directive. They have decided that their common values are such that in development of their law in the area covered by the directive they are able to establish certain norms. I am of the view, that if the court were required to have regard to the international background in order to establish the scope of Article 5 rights in circumstances covered by the Directive then the court would have regard to the Directive. The Demir and Baykara case makes it clear that a single document of a type such as the directive can form a norm or standard (see paragraphs 76 to 84)

[64] The next question which arises is this: what norm or standard is established by the Directive in relation to persons such as the petitioner?

[65] I am clear on a proper construction of the directive that the norm or standard which is established is not that the maximum period for which a person such as the petitioner may be held in detention awaiting deportation is 18 months. To read the Directive in that way is to misinterpret the Directive. It is an interpretation which has regard to Article 15 in isolation. It fails to look at the Directive as a whole and fails to have any regard to Article 2. Article 2 is headed "Scope". Article 2.2(b)) expressly provides that what the parties to the Directive have decided is that countries are entitled not to apply the Directive to persons such as the petitioner. Thus, the consensus among the parties is that individual States which wish to maintain an ability to not apply the Directive in relation to persons such as the petitioner may do so. Accordingly the consensus is to the effect that parties who wish to maintain an ability to detain persons such as the petitioner for more than 18 months may do so as long as that remains reasonable to do so in all the circumstances.

[66] The fact that only a very few states may decide to avail themselves of Article 2.2(b)) does not in my judgment alter in any way the norm or standard that has been created by the Directive relative to persons such as the petitioner. The parties to the Directive have decided that the norm in relation to persons such as the petitioner should not be that after 18 months the detention automatically becomes unreasonable and thus unlawful.

[67] Even if I am wrong in interpreting the Directive as above it appears to me that the only alternative interpretation is to hold that no norm is established by the Directive as regards those who fall within 2.2(a) and (b) and thus the Directive may not be used as an aid to construction in relation to person such as the petitioner when seeking to establish the scope of their Article 5 rights.

[68] In the whole circumstances I prefer the submissions made on behalf of the respondent in relation to the effect of the Directive.

[69] Having considered the issue of the effect of the Directive it is perhaps convenient to set out the legal framework for the second part of my discussion.

The function of the court

[70] It was common ground before me that the function of the court was not to approach the matter from the standpoint of the various principles established in Wedensbury. Rather it is for the court itself to form its own view, having regard to all the circumstances whether the detention is lawful.

Presumption of liberty

[71] It was accepted by parties that the onus lay on the respondent to justify the petitioner's detention and his continued detention.

The nature of the power was governed by the Hardial Singh principles (see: AAS v SSHD page 7 paragraph 14).

[72] If the power to effect removal can only be exercised during the period necessary, in all the circumstances of the particular case, consideration has to be given to what are the relevant circumstances which the court must have regard.

[73] As Dyson LJ says in R(I) v Secretary of State at paragraph 48 an exhaustive list of such circumstances cannot be produced. However, he says, that such a list would include at least:

"The length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that on his release from detention he will abscond; and the danger that, if released, he will commit criminal offences."

[74] It was common ground between the parties that when considering the question of the obstacles which stood in the path of the Secretary of State, one of the obstacles could be self induced detention.

[75] As to the weight to be attached to such a factor it is my judgment that the weight of authority favours the view as expressed by Lord Browne Wilkinson in Tan Te Lam v Tai A Chau Detention Centre 1997 AC 97:

"In their Lordships view the fact that the detention is self induced by reason of the failure to apply for voluntary repatriation is a factor of fundamental importance in considering whether, in all the circumstances, the decision is reasonable".

[76] In reaching the view that self induced detention is a fundamental factor I have had regard to the full, closely argued and in my view compelling analysis of Temporary Judge Reid Q.C. at paragraphs 66 to 72 of KM v SSHD. I cannot fault in any way his analysis and can do no better than refer to it as justifying the view I have reached in relation to this matter.

[77] With that legal framework in mind, I turn to consider the particular circumstances of the instant case.

These circumstances appear to me to be as follows:

[78] First, the petitioner has shown no respect for the law of the United Kingdom. Within two months of his first entering the United Kingdom he committed a serious criminal offence resulting in the imposition of a 7 year sentence.

[79] The short period that he was present in the United Kingdom before he became involved in offending of such a very serious nature, points strongly towards their being a material risk of re-offending were he to be released from detention.

[80] Second, the petitioner has no right to be in this country.

[81] Third, it was strongly argued before me that having regard to the whole history of the attempts to return the petitioner to South Africa there was no real prospect of the respondent achieving his return.

[82] So the question I must ask myself first is this: has the stage been reached at which I must hold that the efforts being made by the respondent to effect the petitioner's return will probably fall through and accordingly there is no real prospect of the respondent being able to remove the petitioner within a reasonable time?

[83] In my view on the information before me the answer to that question is a clear no.

[84] The background does not point to the conclusion that there is no real prospect of removal in that: the respondent has in the past obtained a travel document for the petitioner which only at the last minute was revoked by the South African Authorities; the South African Authorities have at no stage said that they will definitely not accept the return of the petitioner; negotiations are ongoing to facilitate his return including talks which are due to take place in June; the South African Authorities are yet to consider the results of the language analysis which point strongly to the petitioner being South African and lastly even should discussions between the respondent's officials and the South African Authorities fail the respondent intends that matters should be taken up at an interstate level.

[85] Fourth, on the basis of the submissions of counsel for the respondent I have no difficulty in holding that the petitioner has produced inconsistent, contradictory and very limited information to the respondent relative to his background in South Africa, his own personal circumstances and the circumstances of any family he may have in South Africa. Counsel for the respondent accepted that apparent inconsistencies in the information provided by the petitioner could be identified as had been done by the respondent's counsel. He did not seek to rebut any of the factual information relied upon by counsel for the respondent as showing inconsistencies and contradictions. His position relative to this information was that there was an innocent explanation for the differences in the information supplied by the petitioner at various stages. As I understood it the innocent explanation was broadly to the effect that the petitioner's position had changed over time particularly in relation to what relatives he had in South Africa (as a result of deaths of relatives in South Africa). Secondly, other difficulties had arisen due to problems in officials understanding the respondent (language difficulties) and that this had led to information appearing to be inconsistent. There were difficulties in establishing and giving definite addresses due to there being no real addresses within townships in South Africa. I did not accept this submission on behalf of the petitioner.

[86] In my view the above did not explain the contradictions and inconsistencies highlighted by the respondent's counsel in that (1) the number of contradictions, and inconsistencies was very significant; (2) the nature of these contradictions, was such that changes in the petitioner's family due to deaths over time did not explain these. The various contradictory statements about what siblings he had and whether they were at the time of the statement alive cannot on examination be explained due to deaths in the family; (3) the information he is being asked to supply relates to simple and straightforward matters in relation to which inconsistencies and contradictions, would not normally, if truthful information were being supplied, be expected and in particular would not be expected with the frequency highlighted by counsel for the respondent; (4) the type of information which is contradictory and inconsistent and in relation to which he has provided sparse information, all relate to his background and therefore relate to matters which be must be held to know are required by the South African authorities to decide on his nationality. Thus his failures in this area nearly point to his not wanting to be returned to South Africa. I accept there may be difficulties in a foreign national being understood by officials. I also accept that there may be particular difficulties in South Africa in providing addresses in South Africa. However, that is not the picture presented here. Rather the clear picture presented is of a person not wishing to be returned to South Africa. The foregoing circumstances in my view lead to a reasonable inference that the petitioner is not cooperating with the authorities in achieving his deportation to South Africa. I am reinforced in my view that this is a correct inference by certain further aspects of the petitioner's behaviour. He has generally adopted a position of non-co-operation. This is evidenced by his attitude at his interview on 25 September 2009 as set out in the chronology of events. Further his failure to advise of the existence of paternal relatives in South Africa (see paragraph 9 of 7/2 of process) also shows a complete lack of co-operation with the respondent. His unwillingness to make use of facilities to contact relatives or anyone he knows in South Africa to try and show that he is a national of that Country again points to an attitude of non-co-operation.

[87] When taken as a whole the above material very clearly establishes that the petitioner's detention is self induced. As a result of his non-co-operation he is having to be detained. The reasonable inference is that the petitioner is someone who, although he accepts he has no right to be in the United Kingdom, wishes to remain in this country and is hoping by acting in the manner set out above to eventually be released and thereafter to disappear in this country. There is against that whole background a significant risk that he would abscond if released from detention.

[88] Accordingly for the foregoing reasons I am clearly of the view that the petitioner's continued detention remains lawful and that it is reasonable in all the circumstances.

[89] Lastly, it was argued for the petitioner that the respondent had not shown due diligence in seeking to have the petitioner returned to south Africa. The petitioner's counsel pointed to two discrete periods in which he submitted that the respondent had not shown due diligence. He accepted that for the rest of the time the respondent had shown due diligence. In my view the approach to this question must be to look at the respondent's actings over the whole period and ask the question: has the respondent when his behaviour is looked at as a whole shown due diligence. In my view the answer to that question must be yes. There are points, where looked at in isolation there is no particular action by the respondent or where a matter might have been handled more quickly. However, overall the respondent has throughout sought to make progress. The respondent has made proper and reasonable efforts to ensure the petitioner's return to South Africa within a reasonable time when looked at over the whole history of the detention and against the whole background of his lack of co-operation. I am unable to identify any dragging of the feet on the part of the respondent or any major administrative error which could probably be described as administratively inefficient.

[90] Applying the foregoing conclusions to the Hardial Singh principles:

1. The respondent wishes to return the petitioner to South Africa and that is the purpose of his detention.

2. If released there is a high risk of the petitioner further offending and absconding for the reasons which I have set out.

3. For the reasons I have set out his detention is largely self induced.

4. For the reasons I have set out there are still reasonable prospects that the respondent may achieve his deportation within a reasonable time.

[91] Given the above I do not believe that the Hardial Singh principles have been breached.

Decision
[92] The petitioner's detention is not unlawful. Accordingly the petitioner must fail and the prayer of the petition is refused.