R Aziz Lamari v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Cotter Q.C. |
| Judgment Date | 18 June 2012 |
| Neutral Citation | [2012] EWHC 1630 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2370/2012 |
| Date | 18 June 2012 |
[2012] EWHC 1630 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Cotter Q.c.
Sitting as a Deputy Judge of the High Court
Case No: CO/2370/2012
Christopher Jacobs (instructed by Messrs Duncan Lewis) for the Claimant
Toby Fisher (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 25 th May 2012
Introduction
The Claimant has been in immigration detention since 21 st December 2010, when his twelve month custodial sentence for robbery came to an end. On 15 th December 2010 he was served with a deportation order to Algeria and he has lodged no appeal against that order. By an application dated 5 th March 2012 the Claimant sought judicial review of the Defendant's ongoing decision to detain him and also of his detention since 16 th May 2011. The length of the period of his detention in immigration detention was over 14 months when the claim was issued on 5 th March 2012 and 17 months at the date of the hearing.
The hearing was listed for a rolled up hearing by order of Mr Justice David Lloyd Jones 23 April 2012. Prior to that, on 5 th March 2012, Mr Justice Coulson refused an application that the Claimant be released from detention but noted within his reasons that
"the time is fast approaching when the Defendant has to decide either to deport the applicant or release him from detention. The present impasse cannot go on for very much longer"
I was informed at the outset of the hearing on 25 th May 2012 that a further review of the Claimants' detention was to be undertaken during the morning. With this in mind and having had the benefit of comprehensive skeleton arguments together with an opportunity to consider all the documentation I was able at the outset of the hearing to give a preliminary indication as regards my view upon the continued detention of the Claimant. After a short adjournment I was informed that it was accepted that the Claimant should no longer be held in detention and the only delay to his immediate release was the finding of suitable accommodation and administrative arrangements for tagging which might take four to six weeks. I indicated again as a preliminary view that I saw no reason why this should not be achieved within two weeks. As matters turned out it was not necessary to hear argument as to the time required for release as the parties were able to agree an interim order by consent.
As a result the hearing was then not concerned with the Claimant's future detention rather his detention during the last year from May 2011.
Claimant's case
It is the Claimant's case that his detention has been unlawful since 16 th May 2011, when the Algerian Embassy refused to accept him for return. Further, that no significant progress has been made in the intervening twelve months.
There were three overarching points within the submissions advanced on his behalf by Mr Jacobs. Firstly, that an "impasse" developed after the Algerian authorities rejected the initial application for travel documentation by reason of an incorrect address. The impasse was re-affirmed some months later despite the acceptance that the Claimant was from Algeria, as the Embassy took no effective steps to facilitate the travel documentation apparently whilst investigating his identity.
Secondly, that this impasse and consequential delay had to be considered by the Defendant in the light of the Claimant's mental health condition. This was because the Defendant had ample evidence his continuing detention and the lack of progress in relation to his return to Algeria was having a seriously detrimental effect upon his mental health. Indeed it has not been in dispute that the Claimant has attempted suicide or serious self harm on at least four occasions since April 2011. He has at times been on constant watch, placed in anti-ligature clothing and prescribed medication for depression. Eventually, on 7 th April 2012 he was transferred from Colnbrook IRC to Brook House IRC which has 24 hour medical care and mental health nurses. Mr Jacobs submitted that given this medical condition the Claimant could only have been lawfully detained in exceptional circumstances due to the content of the Defendant's own guidance.
Thirdly, Mr Jacobs submitted that there had been a lack of urgency in the attempts to secure removal. The defendant had failed to act with reasonable diligence and expedition to effect removal since May 2011.
In line with these points and the evolving history of the detention, Mr Jacobs's submissions were set out against time periods. His analysis was as follows;
Firstly, there has not been a realistic prospect of removal since 16 th May 2011;
i) Secondly, and as a fall back position that since September 2011 the knowledge of the medical condition should have led to the release of the Claimant from detention. He also submitted that little was done from May 2011 to October 2011 to progress the removal. There was no exercise of reasonable diligence and appropriate expedition.
ii) Thirdly, that if not by then released, the Claimant should have been released from detention following an interview an with the Algerian authorities on 12 th January 2012 when it was appreciated that further information was required and/or release was not imminent.
iii) Fourthly, that if not by then released, the Claimant should have been released from detention following statement coming from an Algerian embassy official on 17 th February 2012
iv) Fifthly, and if none of the above submissions found favour, that as at the date of the claim 2 nd March 2012 there was no realistic prospect of the Claimant's removal with a reasonable period of time. This being quickly followed by the appreciation on 5 th March 2012 that the Algerian embassy was not requesting any further information. At this stage he submitted, the defendant had "no idea what they were waiting for".
v) Finally, that in any event the Claimant should have been released from detention following receipt of the report of Dr Katona, a consultant psychiatrist, on 5 th April 2012 a fortiori upon receipt of the subsequent report of Dr Thomas. He argued that the report of Dr Katona provided clear evidence of serious mental illness. Further, that when the report of Dr Thomas was received it was belatedly recognised and accepted that the specific part within the Defendant's Enforcement Instructions and Guidance i.e. her relevant policy; EIG 55.10 was engaged and there was no proper decision but release from detention.
Defendant's case
The summary grounds of defence set out that the claim for judicial review was "unarguable given the Claimant's repeated history of absconding and serious offending". Reference was made to what is said to be "a remarkable history of criminal offending and absconding". Specifically, that in the nine months between July 2009 and April 2010 the Claimant absconded three times, fled the country and was returned and was then convicted twice for offences of exposure and then later robbery. It is also stated that he has exhibited violent behaviour whilst in detention. As a result it was said that he presented a clear and present risk of re-offending or absconding such that detention prior to removal was clearly reasonable.
It was stated that the only barrier to removal was the issuing of the relevant emergency travel documentation; an "ETD" by the Algerian authorities. The original application for an ETD was sent on 18 th January 2011, but with an address that the Algerian embassy would not accept. This despite the fact that the Claimant confirmed it as correct.
There was then a period during which, at the Claimant's request, enquiries were made of the Belgian authorities as to the possibility of his removal to Belgium and also steps were taken to bolster the ETD. Eventually, the Defendant was able to send further evidence including birth certificates for the Claimant and both of his parents on 3 rd November 2011 in support of a second application for an ETD. Thereafter, at the conclusion of the telephone interview on 12 th January 2012 the Algerian Consul informed the Defendant's officer that the Claimant was indeed Algerian and as set out in the summary grounds
"those authorities have confirmed informally that the Claimant is Algerian and the Defendant is only awaiting a formal decision and the issue of an ETD"
It was also set out that since 12 th January 2012 "the Defendant has made regular inquiries of the Algerian Embassy" but that no ETD has yet been issued.
In respect of the length of time that the process has taken to date, reliance was placed upon the provision by the Claimant of incorrect information as contained on the original application for an ETD sent on 18 th January 2011 and his inconsistent accounts of his immigration history. Further, his request to be removed to Belgium was only rejected in October 2011 when the Belgian authorities could not match the details given with their records.
It was also submitted that where copies of identification documents have been supplied, as was the case with the November 2011 application, a decision could be expected approximately 3–6months from the submission of the application. At the time of the application for Judicial review the relevant period was only one week over six months; which did not indicate any kind of impasse. It was entirely reasonable to assume that at ETD would be...
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