R David Francis v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HHJ McKenna |
| Judgment Date | 17 July 2013 |
| Neutral Citation | [2013] EWHC 2115 (Admin) |
| Docket Number | Case No: CO/9315/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2013 |
[2013] EWHC 2115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge McKenna
Case No: CO/9315/2011
Mr Alex Goodman and Ms Heather Emmerson (instructed by Leigh Day, Solicitors, Priory House, 25 St John's Lane, London, EC1M 4LB) for the Claimant
Mr Robert Kellar (instructed by the Treasury Solicitor, 1 Kemble Street, London, WC2B 4TS) for the Defendant
Hearing dates: 15 th and 16 th May 2013
Introduction
In this action the Claimant, David Francis, challenges his immigration detention for a total period of in excess of 3 years and 9 months between 4 th December 2007 and 29 th September 2011, when the Claimant was released on bail by an Immigration Judge.
The Claimant was born on 10 th November 1979. In April 2008 the Asylum and Immigration Tribunal ("AIT") found that the Claimant was a citizen of Jamaica who entered the UK in around 1996 (2/126 at 130). The Claimant has never accepted these findings and consistently maintained that he is a British national who was born in Britain, brought up in Britain and has never in fact been to Jamaica.
The Claimant came to the attention of the Defendant on 13 th March 2007 when he was returning to the UK from Amsterdam after being refused entry on 9 th March 2007 for using a counterfeit British passport bearing the name "David Francis". When interviewed, he claimed that he did not know that the passport he was using was forged and that he had found it in among his mother's effects after her death. On 16 th July 2007 the Claimant was convicted for possessing a passport relating to another person with the intent of using it to establish facts about himself. He was sentenced to 18 months' imprisonment and the Crown Court made a recommendation for deportation (2/24 at 25). The Claimant did not appeal against that conviction.
The Claimant was served with a Liability for Deportation Notice on 12 th September 2007 (2/2/27) and on 16 th September 2007 the Claimant wrote to the Defendant stating that he should not be deported because he was a British Citizen born in Park Royal Hospital and gave some details of his family (2/2/29). On 8 th October 2007 the Claimant was interviewed by UKBA and he informed them that he was British, was born in Park Royal Hospital and had attended Aylestone School in Queen's Park, London (2/2/35). The Claimant was served with a Decision to Make a Deportation Order Notice on 15 th November 2007 and this was subject to an appeal on 23 rd November 2007 on the basis that the Claimant was a British citizen.
On 30 th November 2007 the Claimant was sent a notice of intention to make a deportation order and informed that, as the subject of deportation action, he was liable to detention under Schedule 3 to the Immigration Act 1971 (" IA 1971") (2/2/62).
The Claimant served half his sentence and was due to be released on licence on 4 th December 2007. However, he was detained by the Defendant pending the making of a deportation order (2/2/59). Reference to paragraph 2(2) is recorded as the relevant power in a number of bail summaries, for example, the bail summaries dated 22 nd July 2011 (2/650) and 27 th September 2011 (2/703). However, it is now said by the Defendant that the Claimant was detained pursuant to paragraph 2(1) of Schedule 3 to the IA 1971 until 21 st May 2008 when a deportation order was made. The minute of detention is dated 26 th November 2007 (2/59–61).
In February 2008 the Claimant was interviewed for the purposes of obtaining a travel document for Jamaica. The Claimant continued to maintain that he was born in the UK. He was asked for information about family members. However, he was unable to provide his siblings' dates of birth. He was also unsure about his mother's maiden name and did not know if his parents were married. He claimed that his own birth certificate was lost when his mother died albeit that he had previously claimed that his mother may not have registered his birth (2/91 and 2/29).
On 7 th April 2008 the Claimant was assessed as being a "medium" risk of reconviction and a "medium risk" of serious harm to the public by the National Offender Management Service (NOMS) (2/115–118).
On 18 th April 2008 the AIT dismissed the Claimant's appeal against deportation (2/126–133). In summary, before the AIT the Claimant maintained that he was a British Citizen, born in London who had been a resident of the UK for 28 years (i.e. since birth) and had never visited Jamaica. The Tribunal rejected that account and held that the Claimant was a Jamaican citizen (paras. 1; 23). It was found that he had spent the first 17 years of his life in Jamaica (para. 37). He was not born in the UK as claimed (para. 22). In fact, he had entered the UK illegally in 1996 or thereabouts (para. 22). He had subsequently worked in the UK illegally (para. 29). His attempt to claim that he was a UK citizen was damaging to his credibility (paras. 22 and 23). The Claimant could return to Jamaica and obtain employment (para. 30). He had close family members in Jamaica with whom he was in contact and could reunite (paras. 30; 37).
The Claimant did not appeal the findings of the AIT and his appeal rights were exhausted on 28 th April 2008 and the Claimant was served with a signed deportation order on 21 st May 2008. From this date he was detained pursuant to paragraph 2(3) of Schedule 3 to the IA 1971 (2/147–148).
For the past five and a half years, therefore, the Defendant has asserted an intention to deport the Claimant to Jamaica, but has not been able to obtain recognition from the relevant authorities that the Claimant is Jamaican in the face of the Claimant's consistent assertion that he was born in this country and in fact had never even visited Jamaica.
On 28 th September 2011 the Claimant challenged his detention by the Defendant by way of judicial review, relying on the well-known Hardial Singh principles." The Claimant sought a mandatory order directing his release from detention, a declaration that his detention was unlawful and damages.
Following the Claimant's release on bail and disclosure by the Defendant, the Claimant re-pleaded his case seeking declarations that his detention was unlawful, nominal damages in respect of his detention to 28 th September 2009 and substantive damages in respect of his detention from 29 th September 2009 until his release on 29 th September 2011.
Summary of the parties' respective cases
The Claimant's grounds of challenge and the Defendant's response to those grounds are summarised in the following three paragraphs.
The Claimant asserts that he was falsely imprisoned between 4 th December 2007 and 9 th September 2008 ("The First Period") on the basis that he was detained pursuant to an unpublished and blanket policy of detaining foreign national prisoners (FNPs) at the expiry of their prison sentence irrespective of individual circumstances. This policy was operated by the Defendant between April 2006 and 9 th September 2008. The Claimant has sought nominal damages only for detention during the First Period and has not sought to argue that he is entitled to substantial damages in this period. The Defendant, for her part, asserts that this ground is without merit because the Claimant, having been recommended for deportation, was detained pursuant to a statutory warrant under paragraph 2(1) to Schedule 3 of the IA 1971 and hence no claim for damages lies.
The Claimant asserts that he was falsely imprisoned between 9 th September 2008 and 29 th September 2009 ("The Second Period") on the basis that he was detained pursuant to a policy that his detention would only be reviewed by persons without authority to release to him; and prohibited any person below the Chief Executive Officer ("CEO") of the UK Border Agency from releasing him. The policy imposed bureaucratic hurdles which in practice rendered it impracticable to effect release. The policy was, it is said, a material cause of the failure to release the Claimant from detention and it was unlawful. Further or alternatively, in breach of the Defendant's policy, while the case was repeatedly expressed by officers to be considered suitable for referral to the CEO, no referral to the CEO was ever made. Again, the Claimant accepts that, absent this allegedly unlawful policy, he would have been detained in any event during this Second Period and therefore only claims nominal damages. The Defendant asserts that this ground is also without merit for the same reason as the first ground and in addition asserts that the policy did not in any event render the Claimant's release either impracticable or impossible and was a lawful policy, lawfully applied.
The Claimant asserts that he was unlawfully detained between 29 th September 2009 and 29 th September 2011 by reason of breaches of the Hardial Singh principles ("The Third Period"). By at least 29 th September 2009, or alternatively some later date prior to his release, it is alleged that the Claimant had been detained for an unreasonable period of time and/or it had become apparent that the Claimant could not be removed to Jamaica within a reasonable period by reason of an inability to obtain a document permitting his return to Jamaica. The Claimant had provided as much information as he was able to enable the Defendant to make enquiries as to his nationality. He had participated in interviews with the Defendant and provided details of his family, background and date and place of birth, had completed a bio data form (21.05.09) and had been interviewed by the Jamaican Embassy on 6 th June 2009. Further, on 27 th April 2010 the...
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