R Muhammad v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Fordham |
| Judgment Date | 14 February 2017 |
| Neutral Citation | [2017] EWHC 745 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2017 |
| Docket Number | CO/5003/2016 |
[2017] EWHC 745 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Michael Fordham QC
(Sitting as a Deputy High Court Judge)
CO/5003/2016
Miss K Apps (instructed by Leigh Day) appeared on behalf of the Claimant
Miss E Dehon (instructed by Government Legal Department) appeared on behalf of the Defendant
THE DEPUTY JUDGE:
Introduction
This is a claim for judicial review commenced on 5 October 2016 for which Edis J gave permission on 8 November 2016. The case involves the liberty of the individual and has been expedited.
The Claimant challenges his immigration detention, which began on 22 April 2015 at the end of the custodial element of a prison sentence. His detention continues today. By judicial review, he claims a declaration that his detention is or has been unlawful, a mandatory order for his release, and damages for false imprisonment and violation of Article 5. He invokes the " Hardial Singh principles", whose applicability is common ground.
There are four Hardial Singh principles, authoritatively recognised by the Supreme Court in Lumba [2011] UKSC 12 [2012] 1 AC 245: see the judgment of Lord Dyson at paragraph 22 in particular. By way of convenient labelling only, I will call the four Hardial Singh principles (i) "the purpose principle", (ii) "the duration principle", (iii) "the removability principle" and (iv) "the diligence principle". By those labels, I am referring to Lord Dyson's description that the principles are as follows:
"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
It is common ground that the application of the Hardial Singh principles is to be approached objectively by the judicial review court: see, for example, Abraha [2015] EWHC 1980 (Admin) at paragraph 33; DZ [2017] EWCA Civ 14 at paragraph 28 and Fardous [2015] EWCA Civ 931 at paragraphs 42 to 43. (References in this judgment to paragraph numbers in Abraha should be treated with caution, because the print-out I was shown may well not reflect the official paragraph numbering.)
There is no doubt in my judgment that the first Hardial Singh principle, the purpose principle, was met in this case throughout. Indeed, the contrary has not been suggested. This was, throughout, immigration detention for the purpose of effecting a removal to Pakistan. The other three Hardial Singh principles are, however, in play. This is one of those cases which involves an obstacle in that the Secretary of State has been seeking, so far without success, to secure an emergency travel document (ETD), which is a necessary step so far as the Claimant's removability is concerned.
The Claimant through Miss Apps submits, and I accept, that what is needed in a case such as the present is a detailed chronological evaluation of the factual history. In that regard, I was shown JS [2013] EWCA Civ 1378 at paragraph 56. She submits that periods in which there is apparently little or no administrative activity call for a detailed explanation: see JS paragraphs 60 and 63. These cases are heavily fact-specific, and I shall come on to explain the extent to which explanations were called for in the present case. Miss Apps reminds me that the burden of justifying the detention is on the Secretary of State. In that regard, I was shown Mahfoud [2010] EWHC 2057 (Admin) paragraph 6(vii), as well as Abraha at paragraph 19 (citing Khawaja).
The Claimant was a foreign national prisoner. Raids on two addresses in 2013 had led to his arrest, trial, conviction and sentence. He had committed three offences relating to false identity leading to what overall, taking account of the concurrent and consecutive sentences, was a custodial period of 12 months. The element he was required to serve expired, as I have explained, on 22 April 2015. By that time the Secretary of State had taken a number of steps towards his removal. Notice of intention to deport was issued on 26 January 2015. A deportation order was made on 30 March 2015 and a decision letter generated on 14 April 2015. A minute describing the basis for the immigration detention was produced. The immigration detention began, as did the requisite detention reviews and monthly progress reports. There are in the bundles some 22 detention review reports and a number of monthly progress reports.
Both parties invited my attention to a policy document, a "Guide". It was printed out for the substantive hearing, downloaded, I was told, from an internal governmental source. I was shown the current version, and asked to proceed on the basis, which I do, that it was a continuing policy which has not materially changed at relevant dates in this case. On that basis, I can put to one side the fact that it is undated and that I do not have any earlier versions. I was not asked in this case to make any finding in relation to publication of relevant policy documents. I make no comment, save for the fact that there are passages in Lumba which deal with the question of relevant policy and its publication.
The Guide is called the "Returns Logistics Guide to Travel Documents — Removal to Pakistan" and it describes three relevant steps that are available to the Secretary of State in a case such as the present. The steps are these. Firstly, there is an interview and consideration by the Pakistan High Commission with a view to the High Commission issuing a travel document. Where that is unsuccessful, secondly, there is the step of referral under the NADRA (National Database and Registration Authority) scheme, to verify the identity of individuals without good supporting evidence. The third step under the guidance is that cases not verified by NADRA may be referred by the Secretary of State to a Returns Liaison Officer for investigation in Pakistan.
Taking these three steps in turn, the PHC interview is described as mandatory in all cases. The Guide describes minimum evidence requirements to be supplied to the PHC in an application pack. They include photographs, relevant biodata, a 13 digit Computerised National Identity Card (CNIC) number and a copy of a new style passport. I add that the list includes a lost passport form, which suggests that those passport requirements at least may be alternatives. The Guide goes on to describe that any other supporting evidence should also be provided.
As to the second step, the NADRA scheme, the Guide explains that that is a scheme available where there is no good supporting evidence involving special visits to the United Kingdom by officials who conduct special interviews. The Guide describes the collection of biometric information, fingerprints and photographs to be checked against a national database. Under the heading "How long will it take", the guide explains that NADRA results can take up to three months to come through and refers to the possibility of seeking a priority review.
The third step, referring a case to the RLO, is described in the Guide. However, the Guide states as follows:
"New RLO referral cases are currently on hold unless CCD [that is Criminal Casework Directive], high priority or exception."
The first 13 and a half months
I am satisfied that there was no breach of any of the Hardial Singh principles during the period 22 April 2015 up to 6 June 2016, being some 13 and a half months. There was, in my judgment, during that period no violation of the duration principle, the removability principle or the diligence principle.
So far as duration is concerned, I have considered the position objectively, but without hindsight and on the material that was available to the Secretary of State, in line with the authorities. I have had regard to the factors spelled out by Lord Dyson in Lumba at paragraph 104, citing this from an earlier judgment of his own:
"It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation… But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
I remind myself also in considering the duration principle that there is no yardstick or red line in terms of a period beyond which detention becomes unreasonable. It depends upon the circumstances of the particular case: see for example Mahfoud at paragraph 6(iv).
In my judgment, it is clear that the Secretary of State throughout this period was seeking to pursue the steps set out in the Guide: step one, the PHC...
To continue reading
Request your trial
-
R (on the application of Israel Ibidokun) v The Secretary of State for the Home Department
...the judgment of Michael Fordham QC, sitting as a Deputy High Court Judge in R (Muhammad) v Secretary of State for the Home Department [2017] EWHC 745 Admin at [23] to that effect. The learned Deputy High Court Judge in that case also observed: "Although bail is not an application of the Har......