Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 139
P139/13	OPINION OF LORD TYRE in the Petition of NEMAH SHEHADEH Petitioner; for Judicial Review of decisions by the Secretary of State for the Home Department ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: Lindsay QC; Office of the Solicitor to the Advocate General

21 August 2013

Introduction

[1] The petitioner seeks damages for alleged wrongful detention of her by immigration officers for whom the Secretary of State for the Home Department ("the respondent") is responsible. These proceedings began as an ordinary action which came before Lord Doherty on the Procedure Roll in September 2012 for debate of the respondent's pleas to the competency and relevancy of the action. Lord Doherty repelled the respondent's plea to competency (see [2012] CSOH 196) and at a subsequent hearing directed the cause to proceed as a petition for judicial review. That petition came before me for a first hearing.

The petitioner's immigration history

[2] The petitioner is of Palestinian ethnicity. According to a birth certificate of which both parties provided translations, the petitioner was born on 25 November 1954 in the West Bank. She was married in 1978 and her marriage certificate records her nationality as Jordanian. At about that time she moved to live in Saudi Arabia with her husband, from whom she is now separated. On three occasions, namely 10 September 2000, 26 February 2001 and 31 July 2002, the petitioner applied in Saudi Arabia for and was granted six-month multi-entry United Kingdom visas. The respondent's record of the issue of these visas states her nationality as Jordanian, and in each case includes a Jordanian passport number. She was issued with visas on the basis that she was a Jordanian citizen. The petitioner entered the UK on 27 August 2002 and thereafter became an overstayer. On 21 October 2005, she was arrested at Heathrow Airport and detained, along with her son, when both were attempting to use false French passports to travel from the UK to Canada. She was charged with and convicted of two offences both arising, as I understand it, out of the attempted use of the false passport, namely using a false instrument and attempting to obtain services by deception. On 25 November 2005 she received two concurrent sentences of imprisonment for four months, with a recommendation by the judge for deportation on her release. On 20 December 2005, she was released from prison on completion of the custodial part of her sentence. She was not detained or deported at that time.

[3] On 20 February 2006, the petitioner claimed asylum in the UK. Thereafter she failed to attend for an asylum screening interview. On 12 May 2006, an immigration official wrote to the petitioner at a London address intimating the respondent's decision to deport her to Jordan. On 10 December 2006, against a background of expression of public and political concern regarding the release of foreign national prisoners who had been recommended for deportation (which I do not find it necessary to detail here), the petitioner was detained at the same London address and served with a notice to make a deportation order. On 24 May 2007, her claim for asylum was refused. It should be noted at this stage that in the respondent's letter of 24 May 2007 refusing the petitioner's claim for asylum, the petitioner is reported as having stated that she was born in the West Bank in Palestine and that the Jordanian authorities had issued her with a temporary passport.

[4] The petitioner's appeal to the Asylum and Immigration Tribunal against refusal of asylum was heard on 2 August 2007 and dismissed on 14 August 2007. She is noted as having stated in the course of the appeal hearing that her Jordanian travel document had been lost, but that in any event it was of no value as it was a travel document and not a passport. The Tribunal rejected the petitioner's claim that her return to Jordan would constitute a breach of her rights under articles 3 and 8 of the European Convention on Human Rights, stating inter alia:

"The Appellant has claimed to be from the West Bank. We find there is no difficulty for ethnic Palestinians in Jordan which would prevent the Appellant being deported to Jordan."

Her appeal rights became exhausted on 6 December 2007.

[5] On 19 January 2008, the respondent removed the petitioner by air to Jordan. On arrival, she told Jordanian immigration officials that she was Palestinian and as a consequence she was refused entry to Jordan. She avers that the Jordanian authorities also refused to allow her entry in order to travel to the West Bank as no arrangement had been made by the respondent with the Israeli authorities who controlled that area. The petitioner was immediately brought back to the UK by the respondent's officials and returned to detention.

[6] Despite the unsuccessful attempt to deport the petitioner to Jordan, the respondent's officials remained convinced that she was a Jordanian national and during the coming months they set about the process of seeking to confirm her identity and nationality with a view to effecting her removal. The petitioner's continued detention was reviewed monthly by officials of the requisite seniority. The first review took place at the end of January 2008, and authority to maintain detention was given by an official in the following terms:

"I agree that the continued detention of this subject is proportionate as the subject only claimed that she was not from Jordan upon arrival there, hence her return to the UK. We should do all we can to confirm her identity in order to effect removal."

During the first half of 2008 a number of requests were made by the respondent's officials to the Jordanian Embassy in London to provide evidence of the petitioner's nationality. The monthly detention reviews expressed optimism that evidence of Jordanian nationality would soon be received, enabling removal of the petitioner to proceed. In the meantime decisions were made each month to continue to detain the petitioner on the ground that there was a risk of her absconding if released. In March 2008, copies of the visa applications made by the petitioner's son were faxed to the Jordanian Embassy in London as her own visa application forms had been destroyed by the British Embassies in Jordan and Saudi Arabia. Opinions continued to be expressed in the monthly reviews that the petitioner's Jordanian identity would be confirmed "shortly" or "very shortly". On 2 July 2008, however, the Jordanian Embassy advised the respondent's officials that the petitioner was not a Jordanian national and had only been issued with a temporary travel document by the Jordanian authorities. It was stated that the petitioner was a "Palestinian national". Having regard to this advice, in the petitioner's detention review dated 4 July 2008, the responsible official in the respondent's Criminal Casework Directorate (CCD) assessed the prospect of removal to Palestine within a reasonable time as "highly unlikely" as removal was on a voluntary basis and the petitioner had refused to return. It was proposed that detention be maintained whilst the case was considered "for release under rigorous contact management". The CCD Director agreed "...with the conclusion that advice should be prepared to recommend release on rigorous reporting restrictions," and that detention should be maintained until a decision had been made as to whether to release.

[7] The petitioner's detention review for August 2008 made no reference to consideration of her release. The caseworker observed that "...we will be following up the option of documenting Ms Shehadeh for removal to Palestine. This may take some time as she has previously been issued with a third country travel document (the Jordanian passport)." A senior reviewing officer considered that there was "a clear and serious risk of non-compliance" given the petitioner's "appalling immigration history". Authority was granted to maintain detention. The detention review for September 2008 noted that the petitioner had been referred for release under rigorous contact management but that a decision had not yet been made. In the review for October 2008, it is noted that further enquiries were being made to establish if the Jordanian Embassy would re-consider her as her son had previously been returned on his Jordanian passport. However, the comments of the Director, CCD, suggest that she had concerns regarding delay and included a request to be advised urgently as to when the proposal to release on contact management had been put to the relevant official. The documentation does not disclose what response, if any, was received to this request. There is no reference in subsequent detention reviews to release with contact management.

[8] By December 2008, the petitioner had been in detention for two years. Further documents had been sent to the Jordanian Embassy with a view to persuading them to accept her Jordanian nationality. It would be unnecessarily repetitive to rehearse the terms of monthly detention reviews during the first half of 2009. No progress was made with removal of the petitioner to either Jordan or the West Bank. In each review, a decision was made that she presented a high risk of absconding and that detention should continue. From February 2009 onwards, references were made to "the presumption to release", but on each occasion the risk of the petitioner absconding was considered to justify detention. On 28 May 2009, the petitioner made an application for bail to the Asylum and Immigration Tribunal; the application was refused in hoc statu on 2 June 2009.

[9] On about 16 June 2009, an envelope containing the petitioner's birth certificate was received at Dungavel immigration removal centre, where the petitioner was detained, and was intercepted by officials there. According to the petitioner, she had only now found someone in the West Bank who was able to obtain a copy and send it to her. However, the respondent regarded the appearance at this time of this document, which was accepted as genuine, as sinister because the petitioner had previously stated that she did not know where her birth certificate was and could not get anyone to obtain a copy. The petitioner then made a further application for bail, which was granted on 27 August 2009. She has since been at liberty and living in Scotland.

[10] Although efforts to secure the petitioner's removal have continued, it appears that nothing of significance happened during the next three years. In September 2012 the respondent received information via the British Consulate in Jerusalem that the petitioner was not a Palestinian national because the birth certificate had no ID number. However, in October 2012 a letter was received by the respondent from the Jordanian Foreign Ministry advising that the petitioner was a Jordanian national holding a Jordanian national number specified in the letter. In April 2013 directions were issued to remove the petitioner to Jordan. The petitioner has since made a new claim for asylum based on her conversion from Islam to Christianity. That claim forms no part of the present proceedings. For the time being, the petitioner remains at liberty and attended the hearing with which this opinion is concerned.

Nationality and rights of residency of West Bank Palestinians

[11] In the course of the hearing, information from various sources regarding the nationality and residence status of West Bank Palestinians was placed before the court. The following is a brief and, I hope, uncontroversial summary. So far as nationality is concerned, at the time of the petitioner's birth in 1954 the West Bank was a part of Jordan, having been annexed in 1950, and the petitioner was accordingly born with Jordanian nationality. After the Israeli occupation of the West Bank in 1967, the Government of Jordan continued to recognise West Bank residents as Jordanian citizens and to issue them with full passports valid for five years. This remained the position at the time of the petitioner's marriage in 1978 and her departure to Saudi Arabia in about 1979 or 1980. In 1988, Jordan renounced its claim to the West Bank, and thereafter Palestinians residing in the West Bank received two‑year Jordanian passports valid for travel only. In 1995, King Hussein of Jordan announced that West Bank residents would once again be eligible to receive 5-year passports but that these would be for travel only and did not connote citizenship, which could be demonstrated only by presenting a "national number" accorded at birth or upon naturalisation to persons entitled to hold Jordanian citizenship.

[12] The situation so far as residence of Palestinians in the West Bank is concerned is set out in a Country Policy Bulletin issued in 2010 by the UK Border Agency as follows. In June 1967 the Government of Israel carried out a census of residents in the West Bank and the Gaza Strip and only those who were present at that time were registered in the Palestinian population registry, recognised as legal residents and provided with identification cards. From 1967 until 1994 the Israelis issued identity cards giving the holder the right to reside in the Occupied Palestinian Territories. In 1994 the Palestinian authorities took over responsibility for issuing ID cards and travel documents. Persons not listed in the registry who wish to join their families and permanently reside in the West Bank can only do so with the approval of the Government of Israel. In 2000, the Government of Israel stopped processing requests for family unification or issuing visitor permits to non-resident family members. Since then requests have only been granted in exceptional cases and the wait for a substantive response can take several years. According to information provided in a report lodged on behalf of the petitioner, Palestinians with permanent West Bank residency status are liable to lose it if they stay abroad for more than six consecutive years, or for more than three years without extending their exit permit during the ensuing three years. It has been estimated that over 100,000 people had their residency rights in the West Bank revoked between 1967 and 1994 after spending more than six years outside the West Bank.

[13] Against the foregoing background the petitioner describes herself as a stateless Palestinian. This is not accepted by the respondent who considers her to be a Jordanian national.

The Hardial Singh principles

[14] The power of the respondent to detain a person in respect of whom a deportation order has been made is contained in the Immigration Act 1971, Sch 3, para 2(3). It was common ground between the parties that the power to detain pending deportation is impliedly limited by reference to the principles derived from the decision of Woolf J in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 which were re-stated by Dyson LJ in R(I) v Secretary of State for the Home Department [2003] INLR 196 at para 46 as follows:

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

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

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

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

Those principles have been adopted as guidance in applications to the supervisory jurisdiction of this court. It is uncontroversial that detention for the purposes of deportation which does not comply with the Hardial Singh principles is unlawful and might, depending upon all the circumstances, give rise to a claim for damages at the instance of the detainee: see RN v Secretary of State for the Home Department [2013] CSIH 11 at para 6.

[15] In the present case the respondent contends (see para 20 below) that the petitioner's detention has been self-induced and self-perpetuating because she has obstructed the removal process. The significance of a detainee's conduct, including refusal to return voluntarily, was examined by this court in RN under reference to two English authorities, namely R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 and R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) in the following terms:

"...At paragraph 123 [in Lumba] Lord Dyson notes that it was common ground that a refusal to return voluntarily was relevant to an assessment of the reasonableness of the period of detention if a risk of absconding could properly be inferred from the refusal. In Sino the deputy High Court judge reviewed what had been said in Lumba under reference to the second Hardial Singh principle. At paragraph 50 of Sino the deputy High Court judge notes that the Supreme Court in Lumba had considered the significance of an individual's own conduct in contributing to the length of his detention in two respects: (1) delays occasioned by any legal proceedings that an individual brings; and (2) delays occasioned by his refusal to return to his country of origin voluntarily. He goes on to note that the Supreme Court had not specifically addressed other ways in which an individual's own conduct might contribute to the length of his detention. At paragraph 56 the deputy High Court judge offers his own views:

'In my judgment the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally requires all delay occasioned by a detainee's own conduct be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that the detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of an individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely.'

Thus, while warning that it should not be determinative, neither Lord Dyson nor the deputy High Court judge suggested that the conduct of a detainee was an irrelevant consideration. We cannot see how it could be otherwise..."

For my part, I note also that in Lumba at para 127 Lord Dyson made the following point, which is perhaps obvious:

"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."

I bear in mind also the following observations of Toulson LJ in R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at para 54, quoted with approval by the Extra Division in AAS v Secretary of State for the Home Department 2010 SC 383 at para 15:

"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."

[16] In the course of the same judgment, Toulson LJ formulated the Hardial Singh principles as requiring

"...a sufficient prospect of the Home Secretary being able to achieve that purpose [i.e. the detainee's removal or departure] to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty."

Commenting on that passage in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, Richards LJ noted (para 64) that what was "sufficient" would necessarily depend upon the weight of the other factors and would be a question of balance in each case, and expressed the opinion (para 65) that there could be a realistic prospect of removal without it being possible to specify or predict the date by which, or the period within which, removal could reasonably be expected to occur and without any certainty that removal would occur at all. The extent of certainty or uncertainty would, however, affect the balancing exercise.

[17] It was a matter of agreement that the role of the court in assessing whether detention has been lawful was accurately expressed, under reference to authorities, by Temporary Judge JG Reid in KM v Secretary of State for the Home Department [2010] CSOH 8 at para 52:

"The function of the Court is not to review, on 'Wednesbury' or rationality principles, the decision to detain the petitioner that is to say the form, manner and rationality of the decision making process. 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."

Argument for the petitioner

[18] The primary position adopted by counsel for the petitioner was that her detention became unlawful immediately, or at least within a week, after the respondent's failed attempt to remove her to Jordan on 19 January 2008. Alternatively, there were various subsequent dates upon which detention, if hitherto lawful, had become unlawful. The Court should scrutinise each decision to detain on the basis of the information available to the respondent at that time; it was not legitimate to apply the benefit of hindsight, especially as the Jordanian authorities' apparent volte face since 2008 regarding the petitioner's nationality was unexplained. It was accepted that the petitioner was an overstayer who had been detained while attempting to use a false passport. It was not accepted that she had entered the United Kingdom clandestinely; she had been issued with a visa and no explanation had been given for the respondent's view that her entry was clandestine. Nor was it accepted that she presented a material risk of absconding. She was aware prior to release from prison in December 2005 that her deportation had been recommended. On release she had provided the authorities with an address at which she continued to reside when detained almost exactly a year later. It should have come as no surprise to the respondent that on arrival in Jordan the petitioner advised the Jordanian authorities that she was Palestinian; this was consistent with what she had told the UK authorities prior to and at the time of the attempted removal. The respondent was aware that possession in 2000 or 2002 of a Jordanian travel document was not necessarily indicative of Jordanian nationality. The decision to detain her on her return to the UK proceeded on the false premise that she had only claimed to be Palestinian when she arrived in Jordan. It made no reference to the fact that the petitioner had not absconded for a year after being released from prison with a recommendation for deportation. At the time of the abortive removal to Jordan the petitioner had already been detained for 13 months. The respondent's decision to detain failed to take material matters into account and proceeded upon an erroneous factual premise. In all of these circumstances the petitioner's detention breached the Hardial Singh principles as soon as she was returned to the UK.

[19] Alternatively, it was submitted, the petitioner's detention became unlawful in terms of the fourth Hardial Singh principle two months later, by which time the petitioner had been in detention for 15 months, when the Jordanian authorities were sent additional documentation which ought to have been provided prior to the abortive removal attempt. If that was not correct, her detention became unlawful in July 2008 as soon as the Jordanian Embassy advised that she was not a Jordanian national. If that was not correct, it became unlawful at a later date when either (a) it was or ought to have been apparent to the respondent's officials that no progress was being made or was likely to be made within a reasonable time; or (b) when the total duration of detention of someone who presented a low risk of offending became excessive. Throughout the period of detention the respondent's officials made optimistic comments about the imminence of removal which had no sound basis. The risk of the petitioner absconding was exaggerated, having regard to the fact that she had not absconded before being detained. Her immigration record was portrayed as worse than it in fact was; there were, for example, references to use of multiple aliases when the petitioner had used only one false name, i.e. the name on the French passport; other names used by her were (as the respondent ought to have known) variant phonetic spellings of her own Arabic name. At all of the times mentioned, the petitioner's detention breached the second Hardial Singh principle because the period was not reasonable in all the circumstances. Even if the period had been reasonable, her detention also breached the third Hardial Singh principle because it had become apparent that her deportation could not be effected within it.

Argument for the respondent

[20] On behalf of the respondent it was submitted that the decisions to detain and to continue to detain the petitioner were lawful because her detention had at all times been in conformity with the Hardial Singh principles. Taking these in turn:

(i) At all times the respondent intended to deport the petitioner; this was the sole reason for the use of the power of detention.

(ii) The period of detention was reasonable having regard to all relevant and material circumstances, including the petitioner's refusal to co-operate with her voluntary return, her historical conduct, the risk of her absconding and of re-offending. The risk of absconding was evidenced by the nature of her criminal offences (crimes of dishonesty), her previous evasion of the immigration authorities, and the lack of any incentive to comply with the terms of bail.

(iii) There was no indication at any time that the respondent would have been unable to effect the deportation of the petitioner within a reasonable period of time. At all times there was a sufficient prospect of removal to warrant continued detention when account was taken of all other relevant factors, including in particular the evidence of Jordanian nationality held by the respondent and the continuing effort to persuade the Jordanian authorities to accept the petitioner as Jordanian.

(iv) The respondent had taken all steps open to her to assist the petitioner to return voluntarily. The petitioner obstructed the removal process by failing to provide details of her true identity and by making use of several different aliases. On arrival in Jordan in January 2008 she demonstrated disruptive behaviour by claiming that she was a Palestinian national, having failed previously to provide any evidence of being Palestinian. Her actions, and inaction, were a deliberate attempt to frustrate her removal.

[21] The respondent's decisions to continue to detain the petitioner were vindicated by the letter received in October 2012 from the Jordanian Foreign Ministry confirming that she held a Jordanian national number. This demonstrated that, as the respondent had always believed, the petitioner's actions in 2008 had crossed the line from non-co-operation to the deliberate provision of false information. There now appeared to be no dispute that the petitioner could be returned to Jordan, subject only to her new application for asylum which was not being presented on the basis that she was not a Jordanian national. Nothing had changed regarding her nationality since January 2008, and recent events demonstrated that she could have been returned then. The present case could be described, as was the case in R (Amougou-Mbarga) v Secretary of State for the Home Department [2012] EWHC 1081 (Admin) as "a story of gross repeated deception perpetrated by the claimant to avoid removal". In that case it was held that the continuation of detention was not merely reasonable but necessary until the authorities had documentation, evidence and arrangements in place to ensure the claimant's effective removal.

[22] Further support for the respondent's decisions during 2008 and 2009 to continue detention was afforded by the fact that an application by the petitioner for bail in June 2009, when she had been detained for two and a half years, had been refused by an immigration judge on the ground that there was a strong likelihood that she would abscond. Reference was made to MH v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), in which Sales J at para 108 regarded the decisions of independent judges reviewing the position at the time with the benefit of submissions on both sides as carrying considerable weight.

Decision

[23] As already stated, my task is to decide whether the petitioner's detention was lawful at the outset and, if so, whether her detention continued to be lawful, taking into account all relevant circumstances. I reject the contention by counsel for the respondent that in carrying out that task I should apply the benefit of hindsight. It seems to me to be implicit in the Hardial Singh principles that I must assess the lawfulness of the petitioner's detention at any given time against the background of the whole circumstances at that time, including in particular the factual information then available to the respondent but not including information which was not then available to her but which has subsequently come to light. Counsel for the respondent placed emphasis on Toulson LJ's test, to which I have referred, of a "sufficient prospect" of being able to achieve a detainee's removal or departure; in my opinion, that formulation makes clear that lawfulness must be determined by examining the matter prospectively and not in the light of subsequent events. In the present case it seems to me that to attempt to apply hindsight would create a particular difficulty given the apparent conflict between the Jordanian authorities' position in 2008 and 2012 respectively regarding the petitioner's nationality. It is no part of my function to make a finding regarding her nationality, but I consider that that is in effect what the respondent would be inviting me to do were I to attach weight to the 2012 letter. In any event, it appears to me that the application of the benefit of hindsight would be distinctly double-edged so far as the respondent's argument is concerned. The 2012 letter was received almost six years after the petitioner's detention. In my opinion, it would be very difficult to argue that if in 2008 it had somehow been known that the petitioner would require to be detained for a further four or five years before removal could be effected, her continued detention was reasonable in all the circumstances. Moreover, the application of hindsight would disclose firstly that the petitioner is Palestinian, as she claimed, and secondly that since her release on bail in August 2009 she has not in fact absconded. I do not consider that it is legitimate to have regard to any of these matters in assessing the lawfulness of her detention during 2008 and prior to her release in 2009.

[24] I address firstly the lawfulness of the petitioners' detention on return from the abortive removal attempt in January 2008. I accept that there is force in the submission on behalf of the petitioner that the decision appears to have been based to some extent upon an incorrect factual assertion that the petitioner's claim to be a West Bank Palestinian was made only on arrival in Jordan, for the purpose of frustrating the removal. However, I am not persuaded that her detention at this time constituted a breach of the Hardial Singh principles. There was still, as it seems to me, a degree of uncertainty regarding the prospect of the petitioner being accepted as a Jordanian national. She had produced no documentation to vouch her claim to be a Palestinian without a Jordanian national number, and there had been no word on the matter one way or another from the Jordanian authorities. There were aspects of the petitioner's immigration history which cast doubt upon her credibility: the previous attempted use of a false passport; her inability to produce the Jordanian documentation on the basis of which UK visas had been issued; the rejection of her asylum claim as not credible by the Asylum and Immigration Tribunal. The risk of the petitioner absconding was not, in my view, as strong as it was portrayed in some of the detention reviews but given the petitioner's past failure to comply with immigration laws it could not be described as non-existent. In all of these circumstances it was, in my opinion, reasonable under reference to the second of the Hardial Singh principles to detain the petitioner at that time pending the making of further inquiries with the Jordanian authorities as to her nationality. There was, in my opinion, no basis to conclude that it would not be possible to effect removal within that reasonable period.

[25] I find no reason to reach a different view with regard to the decisions to maintain detention taken monthly during the first half of 2008. Progress with the Jordanian Embassy in London was very slow, due perhaps in part to the unavailability of the petitioner's UK visa application forms, and it is difficult to discern any solid grounds for the view frequently expressed by the respondent's officials that confirmation of the petitioner's nationality was expected "shortly" or indeed "very shortly". It does not, however, seem to me to have been unreasonable, on a month to month basis, to maintain detention while this confirmation was awaited. I do note that during this period certain matters enter the decision-making process which in my view are hard to justify given the information then available to the respondent and which recur in detention reviews thereafter. Reference is made, for example, to the use of alias identities (plural) when as a matter of fact the petitioner used only one alias on one occasion, albeit that use constituted a serious criminal offence. She is described as "thwarting" the removal process by claiming to be Palestinian, suggesting that the respondent was proceeding upon an assumption of deliberate falsehood by the petitioner which, in my opinion, was premature on the basis of information then available. The monthly review for May 2008 includes what appears to be the first reference to "a high risk of absconding" based upon the petitioner's use of a false passport but taking no account of her actings after release from prison.

[26] The position changed, however, in my opinion, on 2 July 2008 when the Jordanian Embassy advised that the petitioner was not a Jordanian national, that she had been issued only with a temporary travel document by them, and that she was a "Palestinian national". It is noteworthy that the immediate reaction of the respondent's officials was to accept this information and to turn their minds to the possibility of deportation of the petitioner to Palestine. As I have already noted, it was acknowledged in the July 2008 review that deportation to Palestine was highly unlikely as removals were currently on a voluntary basis only and she had refused to return. I interject that given the respondent's awareness of the difficulties created by the position adopted by the Israeli authorities with regard to persons attempting to return to the West Bank after many years' absence, it is difficult to see why even voluntary return to Palestine within a reasonable time could have been regarded as a realistic prospect. So far as Jordan was concerned, the door appeared to be closed. The decision of the Director, CCD, was that advice should be prepared to recommend release on rigorous reporting conditions and that detention should be maintained until this had been done and an instruction received as to whether to release. I regard this latter decision as reasonable in all the circumstances, on the assumption that a decision on release would be taken with expedition.

[27] Unfortunately, the detention reviews for the next two months (August and September 2008) disclose no progress in any respect. Removal to Palestine was contemplated but it was noted on 2 September 2008 that "this may take some time" which, for the reasons I have given and which must have been within the respondent's knowledge in 2008, appears to me to be something of an understatement. No decision on release subject to rigorous contact management had been made. No further representations to the Jordanian authorities were then in contemplation. By October 2008 nothing had changed except that a decision appears to have been made to attempt to persuade the Jordanian embassy to reconsider its decision on the ground that they had previously accepted the petitioner's son on his Jordanian documentation. In my opinion the concern which is apparent in the comments of the Director, CCD who granted authority in October 2008 to maintain detention (see para 7 above) was fully justified. That authority was granted on the basis that a decision on release was awaited and not on the basis of an assessment of the time within which removal might be achieved. But by November 2008, all references to release with rigorous contact management ceased without explanation, to be replaced by references to a "very high risk" of the petitioner absconding. So far as removal was concerned, the focus shifted back to assembling documentation to attempt to persuade the Jordanian authorities to change their mind.

[28] In my opinion, the setback to removal occasioned by the advice received from the Jordanian authorities on 2 July 2008 that the petitioner was Palestinian and not Jordanian necessitated a fresh assessment of the lawfulness of her continued detention. There was no likelihood then of her being removed "shortly". I accept, having regard to the authorities cited, that the absence of certainty as to the period required for removal or indeed as to whether removal would be effected at all did not of itself require the petitioner's release. But the lack of any imminent prospect of removal did, in my opinion, necessitate a careful reappraisal of the risks presented by release of the petitioner. (It may indeed be that such a reappraisal was carried out in July 2008, resulting in the preparation of advice recommending conditional release.) There has never been any suggestion that she posed any risk of danger to the public if at liberty. As regards risk of absconding, I accept the submission on behalf of the petitioner that this was significantly, and sometimes grossly, overstated in the monthly detention reviews. Nowhere does one find any recognition of the fact that following her release from prison the petitioner remained at the same address until detained a year later. References to the petitioner's detention being attributable to her own non-cooperation were, at the least, premature when the respondent possessed no compelling evidence that the petitioner was not a West Bank Palestinian as she claimed to be. I do not accept that it has been demonstrated by the respondent that the petitioner was guilty in 2008 of any attempted deception or of any conduct calculated to frustrate removal. It is the case that the petitioner had been unable to produce any documentation in the form of a passport or birth certificate in support of her claim, and I also accept that in assessing the risk of absconding the respondent was entitled to take into account that the petitioner had a conviction for an immigration-related offence of dishonesty. I have, however, reached the view that during the months following receipt of the Jordanian Embassy's advice on 2 July 2008, a fair-minded assessment balancing the prospect of the petitioner's successful removal against the risk of her absconding ought to have led to the conclusion that the respondent would not be able to effect deportation within a period that was reasonable in all the circumstances. I accept that the respondent was entitled to take some time following receipt of the Jordanian advice to complete its review procedure and in particular to obtain official or perhaps ministerial authorisation of conditional release. I also bear in mind, however, that this case concerns an individual whose liberty had been restricted and I consider that it is reasonable to expect the matter to have been addressed with some expedition. I do not regard it as reasonable that by mid-October 2008, no decision had been communicated to CCD. In all the circumstances I consider that the petitioner's detention had ceased to be lawful by the end of August 2008. Given that she was released on bail on 27 August 2009, I hold that she was unlawfully detained by the respondent for a period of one year.

[29] In reaching this conclusion I do not forget that the petitioner was refused bail by an immigration judge on 2 June 2009. Whilst I readily accept that in appropriate cases the decision of an independent tribunal taken at a time when detention is continuing will carry considerable weight, I am not persuaded that the present is such a case. The decision to refuse bail was expressly stated to be a decision in hoc statu pending receipt of certain copy documents referred to in the respondent's bail summary, and reflected a concern that if the documents, once received, did not support her case the petitioner might abscond. It will be recalled that two weeks later the petitioners' birth certificate was received at Dungavel and that her subsequent application for bail was successful. I note also that much of the reasoning in the immigration judge's decision refusing bail consists of information derived from the bail summary, including the assertion that the petitioner "has used aliases". As counsel for the petitioner pointed out, the immigration judge does not rule on the lawfulness of detention, and I do not regard this decision as a convincing indication that the petitioner's detention remained lawful in June 2009.

Damages

[30] A finding that a person has been unlawfully detained does not result automatically in an award of compensatory damages. In Lumba (above), the Supreme Court held that if the power to detain had been lawfully exercised it was inevitable that the claimants would have been lawfully detained and that they had therefore suffered no loss or damage as a result of their unlawful detention. They were entitled to no more than nominal damages for false imprisonment. In the present case the respondent has lodged a Minute of Admission of Liability admitting that the petitioner's detention from 10 December 2006 until 9 September 2008 was unlawful because it was an application of the respondent's unpublished policy relating to the detention of foreign national offenders, which policy was held to be unlawful by the Supreme Court in Lumba. The petitioner has accepted nominal damages of £2 in settlement of this part of her claim against the respondent. So far as the period between August 2008 and August 2009 is concerned, I require to be satisfied that the power to detain could not have been lawfully exercised by the respondent to detain the petitioner during that period. However, it was not suggested by counsel for the respondent that there was, so far as this period was concerned, a lawful basis for detention other than that founded upon in the answers to the petition, which I have addressed and rejected in this opinion. I therefore hold that the petitioner is entitled to compensatory damages in respect of her unlawful detention for a period of one year.

[31] As regards quantification of damages, counsel for the petitioner submitted that she was entitled in principle to compensation for the initial shock of detention, and thereafter to a daily rate for the period during which the detention continued. Reference was made inter alia to Thompson and Hsu v Commissioner of Police for the Metropolis [1998] QB 498 which contains principles (at 514-516) applied in an immigration context in R(B) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin). I note that in the latter case the point was made by the Deputy High Court Judge (para 22) that a prorated daily approach should not be mechanically applied, and that significant tapering of amounts in respect of longer periods of custody was necessary to ensure proportionality with other awards of damages. In the present case I did not understand counsel to insist that I should make an award for initial shock, given that the unlawful period of detention followed a period whose lawfulness was not disputed. It was submitted that a rate of around £3,000 per month (or approximately £92 per day) would be reasonable.

[32] Counsel for the respondent also referred to Thompson and Hsu, and submitted that the greatest assistance was provided by the judgment of Irwin J in R(NAB) v Secretary of State for the Home Department [2011] EWHC 1191 (Admin) at paras 14-19. In the latter case the claimant was unlawfully detained for 82 days, and the judge noted that it was an unusual feature of the case that the claimant chose detention in the UK over freedom in Iran. For those reasons it was considered that damages should be very much lower than in most reported authorities. Damages of £6,150 were awarded, equating to a daily rate of £75 per day. It was submitted that there was a parallel with the present case in that the petitioner chose detention in the United Kingdom over freedom in her home country.

[33] I accept that the decision in R(NAB) affords helpful guidance, but for the reasons set out above I am not persuaded that the petitioner can be said to have chosen detention in the UK over freedom elsewhere. I respectfully agree with the point made by the Deputy High Court Judge in R(B) that tapering is necessary to ensure proportionality with awards for non-pecuniary loss in personal injury cases. Taking these factors into account, it seems to me that an award of £36,000, inclusive of interest to date of decree, would afford the petitioner appropriate compensation for her unlawful detention for a period of one year. I shall grant decree accordingly. Questions of expenses are reserved.