R Mr Daniel Matows Zerom v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Birtles |
| Judgment Date | 30 January 2014 |
| Neutral Citation | [2014] EWHC 92 (Admin) |
| Date | 30 January 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7212/2012 |
[2014] EWHC 92 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Birtles
(Sitting as a Deputy High Court Judge)
Case No: CO/7212/2012
Declan O'Callaghan (instructed by Messrs Duncan Lewis) for the Claimant
Stephen Whale (instructed by The Treasury Solicitor) for the Defendant
Introduction
This is a claim by Mr Daniel Matows Zerom seeking a declaratory order that some or all of his immigration detention from 28 th November 2008 until his release from detention on 11 th July 2012 was unlawful. The Claimant withdraws his challenge to the issuing of a removal direction, directing his removal to Ethiopia on 11 th July 2012 as that is now academic.
The Claimant is represented by Mr Declan O'Callaghan of Counsel. The Defendant is represented by Mr Stephen Whale of Counsel. I am grateful to both counsel for their oral and written submissions.
I heard the case on 6 th November 2013. At the conclusion of the hearing I reserved judgment.
The Factual Background
I gratefully acknowledge the detailed history provided by Mr O'Callaghan in his skeleton argument which I largely adopt.
The Claimant was born on 15 March 1981 and he is now aged 32.
Immigration History
The Claimant entered the United Kingdom on 28 August 1994 in possession of a valid Ethiopian passport. He was aged 13.
He was granted leave to enter as a visitor for 24 hours.
He claimed asylum on 1 September 1994.
His asylum application was refused by way of a decision dated 9 May 2000, but he was granted Exceptional Leave to Remain in the United Kingdom until 9 May 2004.
No application was made to vary his leave before 9 May 2004 and the Claimant became an overstayer.
The Claimant applied for Indefinite Leave to Remain in the United Kingdom on 25 April 2006.
The Defendant refused the application by way of a decision dated 25 May 2007.
On the same day, the Defendant issued a notice concerning an intention to deport the Claimant.
Criminal Convictions
The Claimant has been subject to a number of criminal convictions. They are as follows:
Deportation
| 16 July 1999 Southwark Crown Court | Offering to supply a Class B controlled drug, namely cannabis | Conditional Discharge |
| 15 August 2001 Blackfriars Crown Court | Attempted Robbery | 2 years' custody |
| 30 September 2003 Sussex (Central) Magistrates' Court | Possession of a Class B controlled drug, Cannabis | Fine —£1 Costs —£34 |
| 2 April 2004 Sussex (Central) Magistrates' Court | Possession of a Class A controlled drug, MDMA | 60 hour Community Order 12 Months Community Rehabilitation Order |
| 6 September 2004 Sussex (Central) Magistrates' Court | Breach of Community Rehabilitation Order | Fine —£20 Community Order to continue. |
| 10 January 2005 Sussex (Central) Magistrates' Court | Common Assault | 80 Hours Community Punishment Order |
| 15 February 2005 Sussex (Central) Magistrates' Court | Possession of a Class A controlled drug, MDMA Possession of a Class B controlled drug, Cannabis | 12 months Community Rehabilitation Order |
| 24 February 2006 Sussex (Central) Magistrates' Court | Possession of a Class B controlled drug, Cannabis | Conditional Discharge — 12 Months Costs —£55 |
| 19 January 2007 Sussex (Central) Magistrates' Court | Causing Intentional Harassment or Distress Breach of Conditional Discharge | 12 months Community Order 12 months Supervision 100 hours unpaid work Fine —£100 Costs —£100 |
The Defendant issued a notice concerning an intention to deport on 25 May 2007
The Claimant was listed as an absconder on 22 August 2008.
The Claimant's appeal against the intention to deport was refused by way of a determination of the Asylum and Immigration Tribunal, dated 23 January 2008.
The Tribunal determined, inter alia:
"56. We accept that both appellant's brother and sister are of Eritrean nationality and that both of them are citizens of the United Kingdom who live and work there…
59. We now turn to the question of the appellant's ethnicity and nationality. We remind ourselves that in the hearing we told both representatives that we accepted that the appellant is of Eritrean ethnicity. We did that because, inter alia, the appellant's brother and sister produced their Eritrean identity cards in the hearing and because they and the appellant maintain that they, their parents and their siblings are all of Eritrean ethnicity. We accept all that evidence and find that the appellant is of Eritrean ethnicity.
…
80. We also note from paragraph 4.1 of Professor Kibreab's report the following comment:
'As seen earlier, after the border war the meaning of Ethiopian citizenship has changed in the sense that all Ethiopians of Eritrean parentage were defined as foreigners and were therefore subject to expulsion. Inasmuch as the full Eritrean parentage of the appellant is not contested, he is not an Ethiopian citizen.'
Given this Professor's expertise and the fact that his evidence is on all fours with the position adopted by Mr. Hailselassie of the Ethiopian Embassy in London, the evidence before us is that the authorities of Ethiopia will not accept that the appellant is a citizen of that country."
The Deportation Order was signed on 28 October 2008.
Detention
On 28 November 2008, the Claimant was detained by police in Brighton and subsequently detained under Immigration Act 1971 powers.
Challenge to deportation
The Claimant challenged his proposed deportation. The challenge ran from 11 February 2010 to 5 December 2011. The chronology is as follows:-
Efforts to secure Emergency Travel Document
| 20 March 2009 | Claimant requested that the deportation order be revoked |
| 11 February 2010 | Defendant refused the application |
| 23 June 2010 | Claimant's appeal was refused by way of a decision of the First-tier Tribunal (Immigration and Asylum Chamber) |
| 16 July 2010 | An application seeking permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) from the First-tier Tribunal (Immigration and Asylum Chamber) was refused |
| 13 August 2010 | Permission to appeal direct to the Upper Tribunal (Immigration and Asylum Chamber) was refused |
| 16 February 2011 | The Claimant challenged this decision by judicial review. The application was refused by way of a paper consideration. |
| 5 December 2011 | The application for judicial review was refused following an oral permission hearing |
The Defendant states that the Claimant failed to engage with the documentation process on the following dates:-
| 30 December 2008 | "Subject seen during a surgery at Oakington today. He refused to complete an Ethiopian ETD as he claims to be Eritrean but the subject states that he does not have an Eritrean ID card. He also states his father lives in South Africa where he has a work permit he claims his father has an Eritrean passport. Sub claims his brother and sister who are also in the UK have Eritrean ID cards and also GBR ppts. Father: Matwos Zerom Brother: Awet Matwos Zerom Sister: Azermar Zerom" |
| 22 January 2009 | "DO served today at 12.00 hours, duly signed on reverse. Photos taken which will be sent to caseowner, as requested, tomorrow by special delivery post. Started to complete biodata, which will be sent with photos, when subject suddenly said he wasn't doing anymore — said if we want to know more — to talk to his solicitor or to his sister. 'He ain't saying nothing.' " |
| 9 April 2009 | "Attended Legal Visits at 13.40hrs to carry out ETD i/v. Sub was immediately uncooperative and verbally offensive. Sub spoke good English and resented the presence of an interpreter. Sub refused to comply with the ETD process. Sub refused to complete any forms, refused to have his fingerprints taken and refused to allow photos to be taken. Sub states he will not be returned to Ethiopia, because he is an Eritrean national — like his parents. He states that he will fight for Eritrea against the Ethiopians." |
| 17 April 2009 | "attended DIRC legal visits …and I attempted to conduct ETD interview with the subject. The subject was immediately confrontational and verbally aggressive and swore frequently. He stated that he would not play these games and did not care if he was imprisoned or detained further as he did not care…" |
| 13 May 2009 | "Attended Legal Visits at Dirc… Firstly, sub presented a book published by 'Human Rights Watch' and asked me to read an excerpt regarding the Eritrean/Ethiopian conflict. Sub also produced several newspaper cuttings regarding the same conflict. I decline to read either and informed sub this interview was regarding him personally and his future. I informed sub that he has been invited to complete forms regarding the ETD process and that he has failed to comply on two previous occasions. Sub stated that he will not complete any forms no matter how many times we ask … I asked the sub if we wanted to pass the rest of his life in prison. Sub said he will not be sent back to a country that practices genocide…" |
| 18 October 2010 | "Went to collect the Bio Data and Passport Forms from the Subject. But he stated he will not complete them because he had been advised by his sister not to complete them and he is taking his case to the High Court." |
The Claimant was interviewed with regard to a possible removal to Eritrea on 22 September 2009. He engaged with the process,...
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