R (Ashori) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 22 May 2008 |
| Neutral Citation | [2008] EWHC 1460 (Admin) |
| Date | 22 May 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9361/2007 |
[2008] EWHC 1460 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Mitting
CO/9361/2007
Miss S Jegarajah (instructed by Dave Emanuell) appeared on behalf of the Claimant
Mr C Bourne (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
By this claim the claimant seeks a declaration that for part of the time during which he was in immigration detention until his release on 29th February this year, his detention was unlawful. He seeks that declaration with a view eventually to a pursuing a claim for monetary compensation.
He has a long and difficult immigration history. On 18th September 2004 he was arrested by police as a suspected immigration offender. He claimed that he had arrived in the United Kingdom on that day by a lorry. He claimed asylum in the identity of Cyros Ashori, the surname in which he brings these proceedings. On 22nd October 2004 his asylum application was refused. He lodged an appeal against it. On 1st February 2005 an Adjudicator dismissed his appeal in trenchant terms:
“On the evidence before me and for the reasons aforesaid, I find the appellant has fabricated a fraudulent asylum claim with no truthful foundation.”
He applied for permission to appeal. Permission was refused on 17th March 2005 and on 7th April 2005 his appeal rights were exhausted. As from that moment he had no right to remain in the United Kingdom but he did not leave.
On 26th July 2005 he attended the Asylum Screening Unit claiming to be Benjamin Musafari. He confirmed that he had never claimed asylum previously and had not had his fingerprints taken before. He signed a declaration to that effect. Enquiries with the Fingerprint Bureau revealed a perfect match with the fingerprints of Cyros Ashori. Accordingly, on 31st August 2005 he was arrested on suspicion of seeking leave to remain in the United Kingdom by deception. He was taken to Croydon Police Station where he admitted claiming asylum in multiple identities. He was bailed to return there on 20th October 2005. On that date he was charged with one count of seeking leave to remain in the United Kingdom by deception. He failed to attend the Magistrates' Court hearing fixed for the committal on 18th November 2005 and a warrant for his arrest was issued. On 20th May 2006 he was apprehended attempting to stow away on a ship departing from Southampton for the United States of America. He was arrested and taken to Croydon Police Station.
On 11th July 2006 he was convicted at Croydon Magistrates' Court of seeking leave to remain by deception and sentenced to eight months' imprisonment and recommended for deportation on the completion of his sentence. His criminal sentence expired on 26th September 2006. Thereafter, until 29th February 2008 he was detained under immigration powers.
On 10th November 2006 a notice of the decision to make a deportation order was served on him. On 14th November 2006 he appealed against that decision, but on 7th December 2006 withdrew his appeal. By 19th January 2007 his appeal rights were exhausted. Miss Jegarajah, who appears for the claimant, does not submit that his detention was, during that period, arguably unlawful. He has accordingly been detained for some 13 and a half months since his appeal rights were exhausted.
On 16th February 2007 he was taken to the Iranian Embassy for an interview to permit a travel document to be issued. The fullest summary of what transpired at the Iranian Embassy is contained in an internal note prepared on the review of his detention in February 2007 by a Home Office official, T Hussein, dated 22nd February 2007. He noted that the Iranian Embassy advised the Home Office that they could not accept the claimant as an Iranian national because they required more information or documentary evidence like a birth certificate. Only after providing that could they issue him with a travel document. However, he does not have such evidence. His family, he claims, is no longer in Iran but somewhere in Turkey because they left Iran due to their Jewish origin. In the immigration factual summary, that comment is noted in these words:
“The Iranian Embassy also advise that they believe the applicant to be Jewish.”
On 22nd February 2007 Mr Hussein, in the file note subsequently to be sent to a senior officer, observed:
“I cannot see how we can remove him to Iran if the authorities in the Iranian Embassy cannot accept him as one of their nationals without evidence. I propose release from detention with restrictions. However, he will still not have any legal basis to remain in the United Kingdom.”
His superior, Miss Edmondson, disagreed with his recommendation and on 23rd February 2007 stated that she was not minded to release him because the Home Office had told him to obtain further evidence of his nationality. She noted that he was desperate to return but, despite that, the unsatisfactory immigration history which I have summarised suggested that he should be detained meanwhile.
On 27th February 2007 he was advised in a monthly detention review to submit a copy of his birth certificate or passport so as to expedite the obtaining of travel documents. On 9th March 2007 his application for bail to an Immigration Judge was refused. The bail summary noted that he had not, up to that point, applied for documents from Iran and that whilst it was not possible to give an accurate estimate of when a travel document would be available, the matter had been put in his hands and the quicker he applied to the authorities in Iran the sooner the Home Office could apply for an emergency travel document from the Iranian Embassy.
On 20th April 2007 he was told that to obtain identification documents he should write to the Iranian authorities in Iran. It was asserted, and is repeated in the witness statement by Miss Honeyman, prepared for the purposes of another case, that Iranian citizens can apply for those documents from abroad and can be assisted by relatives in obtaining them.
He applied again for bail. Bail was refused on 9th May 2007.
Meanwhile, a complication entered into his case. Documents belonging to another person were found by Home Office officials on his file. A comparison with the known details of the claimant demonstrated that they were nothing to do with him, but for a time it was believed that he was seeking to persuade the Home Office that these documents did indeed relate to him. That belief, it is now accepted, was erroneous. On 14th August 2007, however, in a further bail hearing, it led the Immigration Judge to reject his application for bail on, amongst other grounds, the production of those false documents.
Meanwhile, acting on the advice of the Home Office, his solicitors, who appear to have been instructed first in May 2007, wrote three letters to the Iranian Embassy: on 22nd May 2007, 18th June 2007 and 14th September 2007. In them they sought the full address in Iran of the Department of Nationality, Registration and Statistics, the department which from which they understood documents capable of establishing Iranian identity could be obtained. The solicitors had not themselves been able to obtain the address of that department in Tehran. There is a minor dispute about whether or not that address was readily available. A document apparently published by that or a similar department in Tehran indicated that when documents such as identity certificates and birth certificates were requested from abroad “an indefinite waiting period should be expected before a reply is received”. Those words were to be borne out by the subsequent history of this case. As far as can be told, the period up to now has not resulted in the production of any answer from that department, let alone any assistance with the obtaining of the documents.
In the meantime his detention was periodically reviewed by Home Office officials. It is a theme of their file notes that they disagreed. All of them noted the difficulty of obtaining documents from Iran, but whereas that caused Mr Hussein and later Miss Nicholls to conclude that there was no immediate prospect of obtaining the relevant documents and so facilitating his removal to Iran, other officials in the light of the immigration history I have recounted, and in the light in their view that it was possible that with the claimant's cooperation and intervention of his solicitors, travel documents might be obtained, decided that detention should be maintained.
On 27th July 2007, by way of example, Miss Nicholls noted that by then he had been detained for 10 months with “realistically no prospect of imminent removal in sight”. She proposed that he be released. Her superior, however, the Deputy Director, Mr Hearn, on 30th July 2007, having noted that he showed some signs of cooperation with the process of obtaining the emergency travel documentation, said he had a history of deception so as to cause Mr Hearn to conclude that he could not believe that he would comply with release conditions. He proposed that the Home Office should not consider his release but another interview should be arranged urgently.
Mr Hearn appears to have been of the view, recorded in his file note of 20th August 2007, that when interviewed by immigration officers they should take, as he put it, a “strong line” with the claimant that they knew that he was not Iranian and that he should provide evidence...
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