R Belfken v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 10 July 2012 |
| Neutral Citation | [2012] EWHC 2932 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5200/2012 |
| Date | 10 July 2012 |
[2012] EWHC 2932 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
The Honourable Mr Justice Beatson
Case No: CO/5200/2012
Mr Denholm (instructed by TRP Solicitors) appeared on behalf of the Claimant.
Mr Mandalia (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
This is an application for permission to apply for judicial review challenging the detention of the claimant, Khalid Belfken, a citizen of the Kingdom of Morocco. Proceedings were launched on 18 May by way of an application for interim relief. Time was abridged by HHJ Cooke for the defendant to file an Acknowledgment of Service, but the defendant's solicitors, owing to unspecified difficulties in obtaining instructions, sought an extension of time for the service of the Acknowledgment of Service. Those difficulties were explained to me this morning by Mr Mandalia. The Acknowledgment of Service was finally served on 5 July, a day after the extended time granted by HHJ David Cooke on 3 July.
In summary, the claimant entered the United Kingdom on 5 March 2005 aged 15 years. His claim to asylum was rejected, but he was given discretionary leave to remain until his 18 th birthday, which is stated to be 1 January 2008. Before the end of that period of discretionary leave in September 2007, in November 2006 the claimant was convicted of possessing an offensive weapon, a knife, in a public place. He has subsequently been a prolific offender with 14 convictions for 28 offences: many offences against property, drug offences and the knife offence to which I have referred.
The defendant decided to deport the claimant in a decision made on 4 February 2008. The claimant's 11-month custodial sentence imposed in September 2007 came to an end on 8 February 2008. From then he was kept in immigration detention. A deportation order was made on 9 July 2008. He remained in immigration detention effectively until 9 March 2011, a period of three years and one month. During that period there were unsuccessful attempts to obtain travel documents. There were three telephone interviews: on 3 September 2008, 21 September 2009 and 31 December 2010. There were not productive in terms of the Moroccan authorities agreeing to provide an emergency travel document.
The claimant was released on 9 March 2011. He, however, resumed his criminal activities and has since been convicted for burglary and theft and periods of imprisonment were imposed on 28 June 2011 and in September 2011. His immigration detention commenced at the end of his most recent period of custody on Christmas Eve 2011. Further attempts were made by the defendant to obtain travel documents. On 24 April 2012 the claimant attended at the Moroccan embassy for a face-to-face interview. The defendant had provided the claimant's fingerprints to the Moroccan authorities in January following a request. But the outcome of the interview in April was that the embassy informed the defendant that the claimant was not known in Morocco from the fingerprints submitted and they were unable to confirm his nationality in the interview.
I interpose that the claimant has had two language tests, one in 2008 at his screening interview and another in 2010. The independent interpreters involved considered that his accent and diction was Moroccan rather than Algerian. Nevertheless the Moroccan authorities have not accepted him yet.
These proceedings were launched on 18 May, as I have stated. The defendant, through the Border Agency, wrote to the claimant's solicitors on 21 May, setting out the position after the April interview. Mr Denholm seeks to challenge the two periods of detention. The defendant, in the very recently served Acknowledgment of Service, concedes that the first period of detention raises an arguable case that the detention was unlawful, but submits that permission should not be given because this claim is well out of time, that detention having ended on 9 March 2011, and the claimant enjoys a remedy in the County Court.
In respect of a more recent period, the defendant points to the fact that the claimant is a prolific offender who has been assessed as of a high risk of reoffending. Mr Mandalia submitted that the recent period of detention of only seven months is not such that, in the light of the principles set out in the case of R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 and its progeny running to the decision of the Supreme Court in Walumba Lumba v SSHD [2011] UKSC 12 is unlawful. Now that the defendant knows that there is no record of the fingerprints, that the Moroccans do not accept him on the basis of the interview and that they will have to obtain documents or alternative evidence, they can pursue this diligently. As I have said, the inability to confirm nationality from fingerprints is said to be explained by the fact that the claimant left Morocco before the time when he was required to have an identity card for which his fingerprints would be taken: he left at the age of nine.
Mr Denholm submitted that I should not have regard to the Acknowledgment of Service and what it said, because it was filed late. Secondly, he maintained that, looking at the third principle in the Hardial Singh case, the Secretary of State bears the burden of showing that she is going to be able to remove within a reasonable period. He submitted she has not articulated a case which begins to satisfy that burden. There have been four unsuccessful attempts to get papers. Notwithstanding the claimant's very bad history, which Mr Denham fairly accepted, this weighs heavily against the defendant's position and makes the detention unlawful. All that the defendant proposes at present is a further interview "when resources allow". Mr Mandalia pointed to the statement in the summary grounds that this interview will occur in a few days.
I have concluded that, on the basis of the material before me, taking into account the three-year period of detention between 8 February 2008 and 9 March 2011, and the failure to obtain any travel documents in that period, that the very exiguous material as to the defendant's efforts in respect of the more recent period of detention do not begin to address the burden of proof on her. That is not to say that that burden of proof may not be satisfactorily discharged when there is a proper explanation of the difficulties and why it is that the defendant considers that the Moroccans have rejected the claimant. It may be that notwithstanding the absence of fingerprints and...
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The Queen (on the application of Khalid Belfken) v Secretary of State for the Home Department
...a judicial review claim on 18 May 2012. The matter came before Beatson J for an oral permission and interim relief application: [2012] EWHC 2932 (Admin). The judge observed: "4. …His immigration detention commenced at the end of his most recent period of custody on Christmas Eve 2011. Furth......
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R Belfken v Secretary of State for the Home Department
...the claimant, Khalid Belfken, has been the subject of proceedings in this court. On 10th July 2012 Beatson J considered his case [2012] EWHC 2932 (Admin). In that instance Beatson J was considering an application for permission to apply for judicial review, challenging the claimant's detent......
- R Belfken v Secretary of State for the Home Department