Audi Dama Masozera Johnson v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney |
| Judgment Date | 07 December 2022 |
| Neutral Citation | [2022] EWHC 3120 (KB) |
| Docket Number | Case No: QB/2020/000334 |
| Court | King's Bench Division |
[2022] EWHC 3120 (KB)
Mr Justice Sweeney
Case No: QB/2020/000334
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Russell Wilcox (instructed by DCK) for the Claimant
Andrew Deakin (instructed by GLD) for the Defendant
Hearing dates: 21 July 2021 – 23 July 2021
HTML VERSION OF JUDGMENT APPROVED
Introduction
The principal claim in this case is for unlawful detention / false imprisonment. It arises out of the Claimant's immigration detention between 16 February 2014 and 19 June 2015 (a period of some 489 days). The claim is advanced under the following heads:
(1) Unlawful Deportation Order.
In short, it is asserted that, to avoid an absurd result, the automatic deportation provisions in section 32 of the UK Borders Act 2007 must be construed as excluding from the definition of a “foreign criminal” a non-British citizen who is incapable of being removed because they are stateless; that the Claimant was stateless (and was thus incapable of being removed) when the Order was made on 17 February 2014, or became stateless during the course of his detention thereafter, such that the Order was either unlawful from the outset, or became unlawful; in consequence of which, applying DN (Rwanda) v SSHD [2020] UKSC 7, the detention to which the Order gave rise was unlawful from the outset, or became unlawful during its course.
(2) Hardial Singh 1 (intention to deport).
In short, it is submitted that, in order to justify detention, there must be not simply an intention to remove pursuant to a deportation order, but an intention to do so in a lawful manner – whereas the Defendant intended to remove the Claimant on an EU Letter (“EUL”) failing, without good reason, to act in accordance with policy guidance; intended to provide information to the Ugandan High Commission which the Defendant knew, or ought to have known, was materially misleading; and also intended to withhold the Claimant's UK birth certificate from the High Commission in circumstances which were irrational and therefore unlawful.
(3) Hardial Singh 2 & 3 (detention for reasonable period /sufficient prospect of removal within a reasonable period).
Overall, it is submitted that, upon detention, and throughout the entire period of his detention, there was no reasonable prospect of the Claimant's removal, such that, by virtue of that fact, his detention was rendered unlawful, since the Defendant knew, or ought to have known, that the Ugandan authorities were simply refusing to accept individuals with the Claimant's profile as returning nationals.
The Defendant accepts that officials failed to carry out the Claimant's first detention review in accordance with policy, and that therefore the Claimant's detention between 17 March 2014 and 10 April 2014 was unlawful. However, the Defendant maintains that the Claimant would have been detained during that period in any event, and that therefore he is not entitled to substantive damages in respect of that period. The Defendant disputes all other aspects of the principal claim, variously submitting, in summary, that:
(1) The challenge to the lawfulness of the Deportation Order relies on a misreading of the UK Borders Act 2007 and, as a matter of fact, the Claimant was not stateless when the Order was made, or at any point up to his release from detention; and in any event, the Claimant is prevented by res judicata / issue estoppel from claiming damages should it now be established that the Order was unlawfully made.
(2) The Hardial Singh 1 claim cannot be sustained on the facts, as the evidence that the Claimant was detained for the purpose of removal is overwhelming; and, in any event, the Defendant does not accept that there was any illegality and/or that the issue is justiciable.
(3) The Hardial Singh 2 & 3 claims fail on the facts and, as to the initial period of detention, rely on a misunderstanding of the United Kingdom's (non-justiciable) international obligations and Home Office policy.
During the Claimant's detention, over a two-day period between 9 and 11 December 2014, the Defendant sought unsuccessfully to remove the Claimant to Uganda. The manner in which the attempted removal was conducted was originally the subject of two further heads of claim, namely harassment and misfeasance in public office.
In the afternoon of 20 July 2021, which was the day before the trial was ultimately due to begin, the Defendant disclosed a further 298 pages of fresh evidence — in admittedly late response to an application for specific disclosure.
When the trial began on 21 July 2021, the Claimant indicated that, on pragmatic grounds, he would not further press his application for specific disclosure, and nor would he oppose the Defendant's application to call an additional witness.
The Claimant then made an application to amend para. 19 of the Amended Particulars of Claim so as to allege, in relation to misfeasance in public office, that the Defendant knew, or ought to have known, that the Claimant would be caused harm (rather than, as then drafted, alarm and/or distress). I refused the application. In the result, the Claimant abandoned reliance on misfeasance in public office.
During the course of the trial I heard evidence from a number of witnesses in relation to the attempted removal that took place between 9 and 11 December 2014. The Claimant gave evidence and called his sister Talatu Masozera. The Defendant called six members of the removal team. The Claimant also gave some broader evidence in relation his detention, which was also dealt with in some detail by the Defendant's witness Sharon Buckle (a Senior Executive Officer who made some of the detention decisions).
Closing submissions began on 23 July 2021. During the course of his submissions on behalf of the Claimant, Dr Wilcox recognised that the claim of harassment in relation to the events between 9 and 11 December 2014 was essentially a question of fact for me to resolve, and indicated that the Claimant understood that he had a large factual hurdle to overcome in relation to it – given that six witnesses had offered a different account to his own. However, it was submitted that, whatever the Court's view in relation to unlawful detention, if paragraph 18 of the Amended Particulars of Claim was made out to the requisite standard, harassment would be proved. Further, Dr Wilcox submitted, in short, that the claim for unlawful detention / false imprisonment was made out.
In the course of his submissions on behalf of the Defendant, Mr Deakin asserted, amongst other things that, the harassment claim was unsustainable in principle and on the facts. Later, In relation to The Hardial Singh 2 & 3 claims, he raised the issue of the justiciability of the United Kingdom's international obligations. In the result, and with time running out, it was agreed that it would be better for further submissions to be made in writing – which would be of the most assistance to the Court and would give the parties an appropriate opportunity for considered reflection. The further submissions were duly exchanged and served by 4pm on 29 July 2021.
For the avoidance of doubt, the Claimant had no permission to rely on expert evidence, and I have therefore ignored the expert report that was included in the trial bundle.
I propose to deal with matters under the following headings:
(1) Facts Found (paras 12 – 124).
(2) Harassment — The Attempted Removal to Uganda (paras 125–146).
(3) The Lawfulness of the Deportation Order (paras 147 – 164).
(4) Hardial Singh 1 (paras 165 – 175).
(5) Hardial Singh 2 & 3 (paras 176 – 226)
(6) Overall Conclusions (paras 227 – 229)
Facts Found
My findings of fact specific to the claim of harassment are set out in paras 58–63, 68, 70, 71,77, 79, 88 & 145 below. Against the background that it is for the Defendant to prove the lawfulness of detention on the balance of probabilities, I have found the outline facts set out in the remainder of paras 13 – 124 below. Between them, they cover all three heads of the claim for unlawful detention / false imprisonment. I make further findings of fact when dealing with my conclusions in relation to each of the three heads.
On 1 October 1989 the Claimant's mother, Juliet Masozera, a citizen of Uganda, arrived, along with the Claimant's two siblings, in the United Kingdom, with six months leave as a visitor. On 24 December 1989 she gave birth to the Claimant at Central Middlesex Hospital, Park Royal. He is now aged 32. His father was Ugandan.
In January 1991 the family claimed asylum, but that was refused in March 1997. In the summer of 2005, the Claimant's mother (who was represented by solicitors) submitted an application (which was based on long residence) for leave to remain in the United Kingdom with her three children as dependents. The application stated that the Claimant was Ugandan. The Claimant's UK birth certificate (which showed his place of birth as being the Central Middlesex Hospital) was submitted with the application, together with his original Ugandan passport (which had been issued on 6 September 2002, when the Claimant was aged 12, was due to expire on 6 September 2007, and showed his place of birth as being Rwerere in Uganda). Enquiries by Legacy in 2005 in relation to the discrepancy in the Claimant's identity (place of birth) were never explained by his mother.
The Claimant's mother eventually acquired settled status, as did his siblings. However, it appears that the Claimant's application for Indefinite Leave to Remain was not decided until January 2014, when it was refused (see para. 17 below).
On Christmas Day 2009, the Claimant (who had, by then, amassed a considerable criminal...
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Audi Dama Masozera Johnson v Secretary of State for the Home Department
...2014 to 10 April 2014 had been unlawful. Otherwise, the Defendant contested all the Claimant's allegations. 3 In my judgment (see [2022] EWHC 3120 (KB)) I noted the admitted period of unlawful detention, but otherwise wholly rejected the Claimant's case – see paras 11 & 12 of the judgment ......