Mustafa Fardous v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ,Lady Justice Black,Lord Justice Underhill |
| Judgment Date | 25 August 2015 |
| Neutral Citation | [2015] EWCA Civ 931 |
| Docket Number | Case No: A2/2014/3122 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 August 2015 |
[2015] EWCA Civ 931
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lady Justice Black
and
Lord Justice Underhill
Case No: A2/2014/3122
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Andrew Edis QC, sitting under s.9(1) of the Senior Courts Act 1981
Royal Courts of Justice
Strand, London, WC2A 2LL
Julie Anderson and Ivan Hare (instructed by Government Legal Department) for the Appellant
Stephanie Harrison QC and Greg O'Ceallaigh (instructed by Wilsons LLP) for the Respondent
Hearing dates: 5 and 6 May 2015
Introduction
The Secretary of State, the appellant in this appeal, contends that the decision of Mr Andrew Edis QC (as he then was) given on 5 September 2014 was wrong in concluding that the respondent to the appeal (to whom it is convenient to refer as the claimant) had been unlawfully detained pending his removal to Morocco between 8 November 2010 and his release on bail on 4 July 2011 prior to his removal in October 2011. The judge had reached this conclusion, despite the fact that the claimant had a track record of dishonesty, by applying the principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 as restated in the judgment of Lord Dyson in R (Lumba) v the Home Secretary [2011] UKSC 12, [2012] 1 AC 245. In essence it was contended by the Secretary of State that the judge misdirected himself in the application of the Hardial Singh principles in that he did not give proper consideration, given the claimant's track record, to the risk of absconding.
Facts
The judge made his findings principally on the basis of the documents, as it appears he was invited to do. There were witness statements by two Home Office officials, but their evidence was not subjected to substantial challenge in cross examination. The claimant provided two witness statements, but there was no application on his behalf to give oral evidence from Morocco by video link. The judge therefore approached the case on the documents, giving the claimant's statements such weight as they should be accorded.
In the light of the invitation to the judge, the extensive documentation and the fact that the claimant had a significant record of dishonesty, no criticism can properly be made of his approach to the findings of fact he made.
(a) The claimant's deception on initial entry into the UK
The claimant is a national of Morocco. When he left Morocco is not clear. It appears that he came to the UK travelling at least through Italy as he was fingerprinted there and taken into custody in October 1998 for illegal border crossing. He arrived in the United Kingdom in 2001 and sought asylum. His application for asylum was refused by the Secretary of State. That decision was overturned on appeal in April 2002 and he was given indefinite leave to remain.
He told three lies in his application for asylum. First he gave a false name, saying his name was Mustafa Mansouri. Second he said that he was a national of the Western Sahara and that it was his home country. Third he said that he had left the Western Sahara in 1996 because he was in great danger, having been required to serve in the army on pain of death. He said he feared that if he was returned to Western Sahara as an absconder he would disappear and be killed by the highest generals.
(b) His movements in 2004–9
What he then did is not entirely clear, save for the following:
i) He was prosecuted in the UK for offences in 2004, 2005 and 2006. It is not clear if he was convicted.
ii) He applied for naturalisation in the United Kingdom in 2006, telling the same three lies that had been the basis of his asylum application. He also failed to disclose the pending prosecutions. The last failure was detected and his application for naturalisation failed.
iii) Between 2006 and September 2009, he visited Norway and possibly other European countries. On 7 August 2007 he applied for asylum in Norway. Although he gave the Norwegian authorities his correct name, he claimed to have originated from Western Sahara and said that the reason for his application was that he had deserted from the military. He did not tell the Norwegian authorities about his status in the United Kingdom.
iv) The Norwegian authorities over the period to September 2009 made a number of enquiries. They obtained fingerprints from the Italian authorities to which we have referred and, using those, obtained information from Germany and Spain saying that he had visited those countries under the name of Salah Ben Kadour and given the place of his birth as Algeria.
v) On 28 May 2009 Interpol in Rabat confirmed his Moroccan citizenship. In September 2009 he was expelled from Norway.
(c) His return to the UK in September 2009
On 6 September 2009 he returned to the United Kingdom and was detained in Scotland. The Secretary of State wished to remove him to Morocco but, in order to so, an Emergency Travel Document had to be issued by the Moroccan authorities. Between 16 September and 23 October 2009 he continued to use a false name and false place of origin. On 23 October 2009 he relinquished his refugee status and indefinite leave to remain, stating he wanted to return to Morocco. An application for an Emergency Travel Document was immediately submitted to the Moroccan Embassy. As will appear, the Moroccan authorities took two years to provide it. Although every effort was made by the Secretary of State to chase the provision of this document, this was the sole cause of delay in his removal.
On 1 December 2009 he sought bail but was refused. He subsequently applied for bail on 12 January, 11 March, 19 April, 27 May and 2 July 2010. Each application was refused. The judges rightly attached considerable weight to the lies he had repeatedly told.
(d) The attempts to obtain an Emergency Travel Document 2009 — November 2010
It became clear in the course of early 2010 that it might take some time to obtain the Emergency Travel Document. The International Organisation for Migration indicated that it had never obtained an Emergency Travel Document for a Moroccan in detention. It was only in June 2010 that the Moroccan authorities accepted that the claimant was a Moroccan national.
It was only then that discussions began about his attendance at the Embassy in person to secure his Emergency Travel Document.
On 21 June 2010 the British Embassy in Rabat obtained official confirmation that the fingerprints which had been supplied were those of the claimant in his true name; his Moroccan nationality was then confirmed. However on 30 June 2010 his application for an Emergency Travel Document was rejected a second time. On 14 July 2010 the International Organisation for Migration advised that the only course of action that could be followed was to restart the Emergency Travel Document application process. A further Emergency Travel Document application was prepared over a period of weeks. It was submitted on 12 August 2010.
On 1 September 2010 judicial review proceedings were begun in Scotland on the basis that the Secretary of State had taken no steps to take the claimant to the Moroccan Embassy to collect his travel document. It appears that this was a misapprehension, as it was thought that an Emergency Travel Document had been granted. It was contended that the decision of the Secretary of State to detain him was therefore unreasonable and irrational. In the Secretary of State's defence to those proceedings, it was asserted that the detention was lawful on Hardial Singh principles.
In September 2010 the claimant was moved to detention in England and his detention continued. The proceedings in Scotland lapsed as he was no longer there.
Efforts to secure the Emergency Travel Document continued to be made by officials on behalf of the Secretary of State. On 27 October 2010 a telephone interview was arranged. On 2 November 2010, when the call was made, the Embassy telephone was not answered. No interview took place.
(e) Position in November 2010
On 6 November 2010 the 14 month detention review was undertaken on behalf of the Secretary of State. It again reiterated that the claimant was "accustomed to practise deception between the concerned immigration authorities" and had "a transient record". It was unlikely that he would comply with the terms of any temporary admission granted and was therefore detained. The review recorded that officials were of the view that the claimant wished to return to Morocco. A contemporaneous exchange of e-mails between officials noted that, unless the Emergency Travel Document was obtainable in a short time, the claimant's release would have to be considered as his continued detention might not be proportionate if there was no realistic prospect of removal within the short to medium term.
(f) Further attempts to secure an Emergency Travel Document
Thereafter vigorous attempts continued to be made to try and secure an Emergency Travel Document for the claimant. Very frequent telephone calls were made to the Moroccan Consulate but they were not put through to anyone who could discuss the case. On 13 June 2011 an interview finally took place between the claimant and a Moroccan official and it was agreed that the process for an Emergency Travel Document would be expedited. Further fingerprints were then requested.
On 4 July 2011 the claimant was granted conditional bail.
(g) The claimant's removal to Morocco on 21 October 2011
On 21 October 2011 the Emergency Travel Document was issued....
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