FIRST DIVISION, INNER HOUSE, COURT OF SESSION
The Lord President Lady Paton Lord Kinclaven	[2011] CSIH 53 P37/10 OPINION OF THE COURT delivered by THE LORD PRESIDENT in petition by ANORD ANELE MBULAWA (AP) Petitioner and Reclaimer; against THE ADVOCATE GENERAL FOR SCOTLAND Respondent: _______

Petitioner and Reclaimer: A Caskie; Drummond Miller LLP (for Hamilton Burns, Glasgow)

Respondent: A Webster; C Mullin, Solicitor, Advocate General's Office

16 August 2011

The general background

[1] The reclaimer arrived in the United Kingdom in April 2005 on what bore to be a South African passport. He entered the country on a Working Holidaymaker's Visa valid until April 2007. While in this country he was persuaded to travel to Brazil to collect and return to the United Kingdom with a supply of heroin. On his arrival at Heathrow Airport in June 2005 he was found to have, concealed in his stomach, a kilogramme of heroin. He was subsequently charged and convicted of being knowingly concerned in the evasion of a prohibition or restriction on the importation of a class A drug. On 1 December 2005 he was sentenced to seven years imprisonment. The court recommended that on the completion of this sentence he be deported.

[2] Where a convicted person is being deported from the United Kingdom to the Republic of South Africa, the South African authorities, before they will allow such a person to enter that country, require that he be issued by them with an Emergency Travel Document ("ETD"). In February 2006 United Kingdom officials began the process of seeking an ETD in respect of the reclaimer in anticipation of his release in due course from his custodial sentence. In 2008 an ETD was obtained and arrangements were made for the removal of the reclaimer. But, at the last moment, the South African authorities revoked the ETD. They were apparently not then satisfied that the reclaimer was in fact a South African national.

[3] On 20 December 2008 the reclaimer was transferred from penal custody to a detention centre awaiting deportation. The Lord Ordinary, whose Opinion was issued on 11 August 2010, found that the reclaimer had not been co-operative with the authorities in achieving his deportation to South Africa. His account of his background had been contradictory and inconsistent. The Lord Ordinary found that the reclaimer was someone who, although he accepted he had no right to be in the United Kingdom, wished to remain in this country and was hoping, by acting as he had, eventually to be released and thereafter disappear. The reclaimer does not agree with those factual conclusions but his counsel acknowledged that, for the purposes of this reclaiming motion, they required to be accepted. The Lord Ordinary concluded that, against the whole background, there was significant risk that the reclaimer, if released from detention, would abscond.

[4] By 11 August 2010 the reclaimer had been in civil detention for about 20 months awaiting deportation. This reclaiming motion was first heard on 20 May 2011 and, not being concluded on that day, was further heard and concluded on 14 June. By that time the reclaimer had been in detention for about 30 months awaiting deportation.

Domestic principles

[5] It is accepted that, as a matter of purely domestic law, the principles enunciated by Woolf J (as he then was) in R v Durham Prisoner Governor, ex p. Hardial Singh [1984] 1 WLR 704 are applicable. At page 706 Woolf J said:

"Although the power which is given to the Secretary of State in paragraph 2 [of Schedule 3 to the Immigration Act 1971] 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 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 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."

These observations have come to be known as "the Hardial Singh principles".

[6] These principles have now to be read in the context of Article 5 of the European Convention on Human Rights, which provides:

"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 ... detention ... of a person against whom action is being taken with a view to deportation ...".

[7] In R (on the application of I) v The Secretary of State for the Home Department [2002] EWCA Civ 888 (hereinafter "I") Simon Brown LJ (as he then was), having recited the relevant terms of Article 5, added at para 8:

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

He then cited Hardial Singh and two other authorities. One of these was Re Wasfi Suleman Mahmod [1995] Imm AR 311 in which Laws J (as he then was) dealt with an individual - an Iraqi who had been granted asylum in Germany - who on entering the United Kingdom had been found in possession of opium and was sentenced to four years imprisonment with a recommendation for deportation. Like Hardial Singh (and the appellant in that case and the present reclaimer) he was served with a deportation notice during his term of imprisonment and detained under the Immigration Act beyond the date when he would otherwise have been released. His application came before Laws J after some 10 months, during which the Home Office had been making unsuccessful efforts to persuade the German authorities to take him back. Simon Brown LJ in I quoted with approval the following passage from Law J's judgement in Mahmod:

"While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on."

Mummery LJ dissented on the facts, though he agreed on the principles. Dyson LJ (as he then was), having referred to the principles in Hardial Singh (approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97 at page 111 A-D), continued:

"46. ... In my judgment Mr Robb [counsel for the Treasury Solicitor] 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 the (sic) reasonable diligence and expedition to effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event principle (iii) applies. Thus, once it has become apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if a reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

He agreed with Simon Brown LJ that the appellant had in the circumstances been in detention for an unreasonable period (a little over 15 months) and that he was entitled to be liberated forthwith.

[8] The Court of Appeal in I also addressed the significance of the fact that the applicant was not prepared to accept voluntary repatriation (to Afghanistan). The judges differed on the weight to be attached to that matter. Dyson LJ said:

"50. As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant, whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight. Mr Robb submits that a refusal to leave voluntarily is relevant for two reasons. First, the detained person has control over the fact of his detention: if he decided to leave voluntarily, he would not be detained. Secondly, the refusal indicates that he would abscond if released from detention. It is this second feature which has weighed heavily with Mummery LJ.

51. I cannot accept that the first of Mr Robb's reasons is relevant. Of course, if the appellant were to leave voluntarily, he would cease to be detained. 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. If Mr Robb were right, the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.

52. I turn to Mr Robb's second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance, namely the likelihood that the detained person will abscond if released.

53. But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.

54. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released, he or she will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case. It is not at all surprising that this appellant has refused voluntary repatriation. He has not yet exhausted the asylum process, which, if successful, would permit him to remain in the United Kingdom. In these circumstances, why should one infer from the refusal of voluntary repatriation that, if released, he would abscond? In my judgment, the most that can be said is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases. I do not consider that the fact that he has refused the offer of voluntary repatriation adds materially to the evidence that such risk is present in the instance (sic) case."

[9] The Hardial Singh principles and Dyson LJ's discussion of them in I were adopted by the Inner House of this court in A.A.S., Petitioner [2010] CSIH 10 (see para [14]). At para [15] Lord Osborne, delivering the Opinion of the court, noted that in A v Secretary of State for the Home Department [2007] EWCA Civ 804 Toulson LJ had 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 even 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."

[10] Longmore LJ agreed with Toulson LJ. Keene LJ, also agreeing with Toulson LJ in the result, said at para 79:

"I am not persuaded by Mr Giffin [counsel for the Home Secretary] that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."

[11] Lord Osborne in A.A.S., Petitioner continued:

"[16] In KM v Secretary of State for the Home Department [[2010] CSOH 8] in paragraph [69], the Temporary Judge drew attention to the observations of Sedley LJ in Tawonezwi v Secretary of State for the Home Department [[2008] EWCA Civ 924]. In that latter case Sedley LJ, in paragraph 9 recognised, as, in our opinion, must be the case, that ultimately a point might be reached where the duration of the detention might become such that it was disproportionate to the reasons for it. He put the matter in these words:

'What ultimately I think is capable of bearing on it is the possibility that the sheer length of detention may at some stage become such that it outweighs in proportionality the reasons for it.'

Of that passage, the Temporary Judge in KM v Secretary of State for the Home Department, in the passage mentioned, said:

'While that may, in theory, be true, as a legal principle it offers no guidance whatsoever as to how one determines when that stage arrives. It is particularly difficult to apply in a self induced detention case in the light of the court's observations in paragraph 11 referred to above'.

With the Temporary Judge's view, we have considerable sympathy. However, it seems to us that determination of when detention might become disproportionate to the reasons for it must simply be the subject of judgment and decision by the court in the light of all of the relevant factors placed before it in the particular case."

[12] In bringing us up-to-date on domestic jurisprudence in this field, Mr Caskie for the reclaimer drew our attention to Regina (Lumba) v The Secretary of State for the Home Department (and other appeals) [2011] UK SC 12; [2011] 2 WLR 671 and, in particular, to the observations of Dyson SCJ at para 128. It is worth, however, also quoting part of para 127:

"127. It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which 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. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant ...

128.         What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a 'trump card' which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in I's case, 'the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation'. If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in I's case [2003] INLR 196 and Keene LJ in A's case The Times, 5 September 2007 and I agree with them."

The Return Directive

[13] Mr Caskie did not, however, restrict his submissions to domestic law. He relied, albeit indirectly, on Directives issued from the European Union. A number of such Directives touching on issues of asylum and immigration have been issued. Of particular importance for present purposes was, he argued, the "Return Directive" (Directive 2008/115/EC of the European Parliament and the Council, of 16 December 2008, on common standards and procedures in Member States for returning illegally staying third-country nationals). Whereas the United Kingdom had made it plain that it was not taking part in the adoption of that Directive and was therefore not bound by it in its entirety or subject to its application (Preamble (26), the Strasbourg court, in interpreting and applying Article 5 of the Convention, would, it was submitted, be powerfully influenced by the facts that all the countries of the Union, bar the United Kingdom and Ireland, had adopted this Directive, and that Ireland, although it had not adopted it, had domestically set a maximum period of eight weeks detention, subject to certain qualifications.

[14] The relevant provisions of the Return Directive are as follows:

"Article 1

Subject matter

This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.

Article 2

Scope

1. This Directive applies to third-country nationals staying illegally on the territory of a Member State.

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.

...

3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.

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 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 six months.

6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve 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 cooperation by the third-country national concerned, or

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

...

Article 20

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2010...

...

Article 22

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union."

[15] The Directive was so published on 24 December 2008 and came into force on 13 January 2009. States other than Member States (namely Iceland, Norway, Switzerland and Liechtenstein) had, we were advised, also adopted the Directive. The European Union had under reference to the Return Directive, reported on 29 October 2010 to the United Nations:

"More than thirty states in Europe already have or will have in the near future provisions in their national legislation that contain standards that correspond at a minimum to the provisions of this directive ...".

[16] Mr Caskie drew to our attention reports from the Jesuit Refugee Service and the Global Detention Project which demonstrated that in the order of thirty countries had indeed adopted minimum standards for the periods of detention of third-country nationals which were stricter, in many cases substantially stricter, than those provided for in Article 15. So far as he was aware, no country which had adopted the Return Directive had decided under Article 2 not to apply it to persons subject to return as a criminal sanction.

[17] Mr Caskie referred us to the Grand Chamber judgment of the European Court of Justice in Said Shamilovich Kadzoev v (Huchbarov), 30 November 2009 (unreported) where the Court was concerned with the interpretation of the Return Directive. One of the questions referred to the Court was whether Article 15(4) and (6) of the Directive allowed the person concerned not to be released immediately, even though the maximum period of detention provided for by the Directive had expired "... 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." (para 68). The Court held that none of these circumstances was a ground for continued detention. Mr Caskie submitted that the periods of maximum detention in the Return Directive as applied constituted a "bright line". The coming into force of the Directive had "changed the legal landscape".

[18] He also referred in this context to Hassen El Dridi alias Soufi Karim, 28 April 2011, an unreported decision of the First Chamber of the European Court of Justice - a case concerning a third-country national who had entered Italy illegally. It was held that certain coercive measures adopted by the Italian State risked jeopardising the attainment of the objective of the Directive. Penal provision could not be used, in effect, to circumvent the requirement that detention prior to deportation be limited in time (Opinion of the Court, paras 58-59). Moreover, a state which had not transferred the Directive into national law could not rely on the opt-out under Article 2(2) (Opinion of the Advocate General, paras 22-8, approved by the Court at para 49).

[19] The attitude of the Strasbourg court to the interpretation of the Convention was to take into account the international law background to the legal question before it. No distinction was made between sources of law according to whether or not they had been signed or ratified by the respondent state (Demir and Baykara v Turkey (Application no 34503/97), unreported, 12 November 2008, at paras 76-84. Reference was also made to Marckx v Belgium (1979) 2 EHRR 330, especially at para 40, Taskin v Turkey (Application no. 46117/99), unreported, 10 November 2004 and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 WLR 148. The position of the United Kingdom in relation to permissible periods of detention was not in harmony with international norms. In Massoud v Malta (Application no. 24340/08), unreported, 27 July 2010, it had been held that there had been an infringement of Article 5 even though attempts to repatriate the applicant were frustrated by the applicant's refusal to cooperate and the third country not being prepared to issue the necessary documents.

Other submissions for the reclaimer

[20] The burden, it was submitted, was on the Secretary of State to demonstrate that the reclaimer's continued detention was lawful. She had failed so to demonstrate. The Lord Ordinary had failed to recognise that, in light of the coming into force of the Directive, the legal landscape had changed. Even if there was no "bright line" at eighteen months, the reclaimer's detention had now well exceeded any period that was reasonable in the circumstances. Moreover, the Secretary of State had not shown reasonable diligence in pursuing steps to effect the removal of the reclaimer to South Africa. There had been significant gaps when nothing had been done. A further year had passed since the case was before the Lord Ordinary. Nothing of significance had happened in that period.

[21] In a written submission Mr Caskie also relied on customary international law. No Western European state (other than the United Kingdom and, in an unusual situation, Ireland) detained a third-country national for in excess of eighteen months. All the states of the European Union (except the United Kingdom and Ireland) had adopted that position not simply out of a sense of legal obligation but from an actual enforceable legal obligation arising from their membership of the Union. It thus constituted a rule of customary international law. Reference was made to R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1, per Lord Bingham of Cornhill at para 23. A rule of customary international law was a rule of Scots law (Lord Advocate's Reference No. 1 of 2000 2001 JC 143, at para 23). Thus detention for in excess of eighteen months was unlawful in Scotland.

Submissions for the respondent

[22] Mr Webster for the respondent submitted that the constraint on the reclaimer's liberty was for no longer than was necessary in all the circumstances. It being a matter of personal liberty, he was content that the circumstances should be addressed as at the time of the hearing before the Inner House rather than as at the time the case was before the Lord Ordinary. When a similar issue had been before the Inner House in A.A.S., Petitioner there had been no reference to international norms. Reference was made to para [14] and [15]. It was important to bear in mind that the reclaimer had, shortly after his initial entry into the United Kingdom, committed a serious offence. As the Temporary Judge had said in KM at para 73, it was necessary to have "a reality check". It was acknowledged that the Directive was a relevant factor, among other factors, in deciding whether a reasonable period had elapsed, but it could not properly be described as a powerful factor. Nor, for the United Kingdom, did it lay down a "bright line". Mr Webster would not go so far as to suggest that the Directive was "a very unpromising basis" for a submission (cf. Beatson J in The Queen (on the application of the SM) v Secretary of State for the Home Department [2011] EWHC 338 (Admin)). Nor did he contend that it was not justifiable to use the Directive for the limited purpose of a yardstick or cross-reference in assessing what constituted a reasonable period of detention (pace Lord Menzies in S v Secretary of State for the Home Department 2011 SLT 297, at para [39]). The Directive should not, however, be addressed in isolation from other circumstances, including the circumstance that the reclaimer's detention was essentially self-induced. The use of common international or domestic law standards of European States to interpret the Convention was appropriate only where a more conventional means of interpretation had not enabled the court to establish matters with a sufficient degree of certainty (Demir and Baykara v Turkey, para 76). Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department at para 21 had not suggested a broader approach. A harmonious approach did not mean that all must sing the same note. Moreover, regard had to be had to Article 2(2)(b) of the Directive, which provided (for States which adopted the Directive) an opt-out in respect of convicted persons. Article 5 of the Convention was designed to prevent arbitrary detention. Reference was made to Saadi v United Kingdom (Application no. 13229/03, unreported, 29 January 2008). It was unnecessary to go to international instruments for interpretation of the Convention. The domestic law of the United Kingdom (the Hardial Singh principles) was consistent with the Strasbourg jurisprudence. In several cases it had been held that detention for substantial periods did not constitute a violation of Article 5: Chahal v United Kingdom (Application no. 70/1995/576/662, unreported, 11 November 1996) (three and half years); A and Others v United Kingdom (Application no. 3455/05, 19 February 2009) (4 years). Massoud v Malta was distinguishable. If it was legitimate to have regard to the Directive as a norm, it was necessary to take into account Article 2 in relation to third-country nationals who, like the reclaimer, were subject to return as a criminal law sanction. The fact that parties to the Directive had apparently not adopted this exception as a matter of practice was immaterial. The Secretary of State had shown due diligence in seeking to have the reclaimer repatriated to South Africa. That this has been frustrated was largely due to the reclaimer's conduct.

The Lord Ordinary's views on the prospects of deportation to South Africa

[23] When the Lord Ordinary made avizandum in May 2010 active steps were in hand with a view to persuading the South African authorities to issue an ETD in respect of the reclaimer. In his opinion the Lord Ordinary said at para [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."

Elaboration of the factual history to date

[24] The issue before us being one of personal liberty, it was agreed that we should address the circumstances as they appeared at the time of the discussion before us. Before considering the legal issues, it is appropriate to expand on the factual history and bring it up to date.

[25] The criminal court (in England) having recommended that on the expiry of his sentence the reclaimer should be deported, the Secretary of State took prompt measures with a view to securing that. Although the South African authorities initially co-operated, they then declined to accept the reclaimer on the basis that they did not believe him to be a South African national. It was reported to the Secretary of State that in a telephone interview with these authorities, the reclaimer had stated that he was not a South African national. Apparently, though this is not wholly clear from the chronology of events set out by the Lord Ordinary at para [4] of his Opinion, an EDT was at some stage issued. But this was "revoked" in August 2008 on the eve of the reclaimer's departure for South Africa. At about this time the content of the reclaimer's phone interview with the South African authorities came to light. No further steps were taken at that time to obtain an EDT, the case being apparently closed and the reclaimer returned to penal custody. In December 2008 the reclaimer was transferred from penal custody to civil detention awaiting deportation. Over the period of his custody and detention the reclaimer had been asked to provide information about himself and his family, primarily for the purpose of vouching his South African nationality - which, in his dealings with the Secretary of State, he had claimed. The Lord Ordinary found that the information which the reclaimer had produced was inconsistent, contradictory and very limited. That finding is not challenged in this reclaiming motion. The Lord Ordinary further found that it was a reasonable inference that the reclaimer was not cooperating with the authorities in achieving his deportation to South Africa. The "clear picture" presented was of a person not wishing to be returned to South Africa (Lord Ordinary at para [86]). When taken as a whole the material "very clearly establishes that the [reclaimer's] detention is self-induced". [ para 87]. With a view to obtaining objective evidence in relation to the reclaimer's origins, the Secretary of State proposed that he undergo a linguistic analysis conducted by the Swedish organisation Sprakab. The Upper Tribunal (Immigration and Asylum Chamber) has observed that "... because of Sprakab's underlying library of data and the process by which it produces its reports, Sprakab evidence is of high quality and its opinions are entitled to very considerable weight" (RB v Secretary of State for the Home Department [2010] UKUT 329 (IAC), at para 168). Initially the reclaimer declined to undergo such an analysis, but that was apparently only so that he might first take legal advice. Having done so, he then willingly undertook a telephone interview with Sprakab, which in due course produced a report dated 7 April 2010. The Lord Ordinary observed that the results of the language analysis "point strongly to the [reclaimer] being South African" (para [84]).

[26] Perusal of the report supports that conclusion. At the interview the reclaimer spoke English and a little Xhosa. The latter he spoke to the level of a mother tongue. He spoke a variety of that tongue which is found most likely in South Africa - the language is also spoken in Lesotho and Botswana. He spoke English with a pronunciation typical of a variety spoken in South Africa. He had a large English and a large Xhosa vocabulary. He used words and expressions found with certainty in a variety of Xhosa spoken in South Africa. He displayed good knowledge of South Africa and of Cape Town. Among other particular matters special to South Africa of which he had knowledge, he spoke of the Xhosa tribe and described their traditions and food culture; he described how the public transport works in Cape Town.

[27] The South African authorities were provided with a copy of that report. A face-to-face interview of the reclaimer at the South African High Commission was arranged and took place on 18 June 2010. After some delay the South African authorities stated that the reclaimer was not a South African national and that the application for an ETD was accordingly refused. No reasons were apparently given for rejection of the report or for the refusal to accept that the reclaimer is South African; nor, so far as appears, were any reasons sought by the Secretary of State. It is apparent that there are a number of items of documentary evidence which, ex facie at least, support the reclaimer's claim to be of South African nationality. These include a South African passport (though the South African authorities claim, on a basis not disclosed, that this was obtained fraudulently), a South African identity card, a South African driving licence and a South African birth certificate.

[28] The South African authorities had earlier suggested that the reclaimer might be a Zambian national. This led to an interview of the reclaimer at the Zambian High Commission, where it was concluded that he was not Zambian. In August 2010 the South African authorities suggested that the reclaimer might be Nigerian. This suggestion does not appear to have been followed up. The reclaimer has a "wife" whom he "married" in a religious ceremony in the United Kingdom, though that "marriage" does not have legal status in this country. She is African but not South African. When the Secretary of State in November 2010 wrote to her asking for information regarding her relationship with the reclaimer and if she had proof of his identity, she responded by sending a copy of the reclaimer's (allegedly fraudulent) passport. In March 2011, when the reclaimer was being moved between detention centres in England, the opportunity was taken to search his baggage. This revealed the names and addresses of neighbours (and an ex-partner) in the vicinity of the place in South Africa which the reclaimer claims to be his home. An initial search for these addresses found "no trace" but in May 2011 these names and addresses were forwarded to the Secretary of State's contact in Cape Town with a view to further checks being carried out. The results of these further checks were not available at the time of the hearing before us.

Discussion

[29] The attitude of the South African authorities is crucial to the reclaimer's future. He cannot be effectively deported to that country unless they issue a relative ETD. On the face of the objective material before this court there appears to be a reasonably strong case that the appellant is in fact South African. In Massoud v Malta the Court was faced with a situation in which, according to the government, the applicant was unwilling to cooperate and the Algerian authorities (the applicant being Algerian) had refused to issue the relevant documents. At para 67 the Court said:

"However, assuming the Government were right in their allegation [that the applicant was unwilling to cooperate], the Court considers that it must have become clear quite early on that the attempts to repatriate him were bound to fail as the applicant had refused to cooperate and/or the Algerian authorities had not been prepared to issue him documents. Detention cannot be said to have been effected with a view to his deportation if this was no longer feasible ...".

Accordingly, there may come a time when, even if a foreign national has been uncooperative, the effective cause of his deportation being impracticable is the attitude towards him adopted by the authorities of the foreign state to which it is proposed that he be deported. Admittedly in Massoud the applicant was unquestionably Algerian; the South African authorities have questioned whether the reclaimer is South African. But, realistically, there seems no alternative to his having that nationality. The crucial question is, accordingly, whether the South African authorities can be persuaded that this is so and that an ETD should be issued.

[30] The final Hardial Singh principle is as follows:

"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." (per Woolf J at page 706).

The reclaimer has now been held in civil detention for approaching 32 months. The Sprakab report has been available since April 2010. The South African authorities have had sight of it since at least June 2010. They also interviewed the reclaimer in that month. They have not, it seems, provided any explanation for their refusal, in light of the report or of the interview or otherwise, to accept the reclaimer as being of South African nationality. In these circumstances the time is fast approaching when it must be apparent to the Secretary of State that she is not, if the South African authorities persist in their attitude, going to be able to operate the machinery for removal of the reclaimer within a reasonable time.

[31] We reach that conclusion applying domestic principles. Although the Directive and related information provide interesting comparative material, we have found it unnecessary to rely on that material for the purposes of dealing with this case. We reserve our opinion as to its significance.

[32] We note that in Hardial Singh Woolf J was prepared to grant a short adjournment before making a substantive order. We are of the opinion that, in this case, a final opportunity should be afforded to the Home Secretary to endeavour to persuade the South African authorities to issue an ETD for the reclaimer without delay. If such an endeavour is unsuccessful, there may be no alternative to ordering his release from detention. The case will be put out By Order on 20 September 2011 to ascertain whether that has been achieved.

[33] We would add that we have not left out of account the risk that the reclaimer, if released from detention, may abscond. The authorities concerned with persons who had refused voluntary repatriation (for example, I and A) are not directly in point but are nonetheless instructive. They demonstrate that a risk of absconding is relevant to the issue as to whether detention should be continued but that it is not a "trump card". We shall wish to be addressed further on what steps might be taken to mitigate the risk of the reclaimer absconding - by, for example, releasing him in a place in the United Kingdom where more secure tagging arrangements may be available than may be available in Scotland. We have also taken into account the fact that the reclaimer has been convicted of a serious offence. While the risk of further criminality on release cannot be altogether discounted, there has been no suggestion that the reclaimer has any prior convictions, in this country or abroad. In these circumstances the risk, while present, is prima facie not substantial.