R Mustafa Mohammed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Clare Moulder |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWHC 972 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7233/2011 |
| Date | 02 April 2014 |
[2014] EWHC 972 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Clare Moulder
(Sitting as a Deputy Judge of the High Court)
Case No: CO/7233/2011
David Chirico (instructed by Fadiga & Co) for the Claimant
Julie Anderson (instructed by Treasury Solicitor) for the Defendant
Hearing date: 5 March 2014
This is a claim challenging the legality of the claimant's detention under the Immigration Act 1971. Proceedings were commenced by the claimant acting in person on 27 th July 2011.
Orders
The matter has been before the court several times over the past few years:
On 9 December 2011 permission was refused by Owen J on the papers on the basis that there was a significant risk of him re-offending and of absconding, if released on bail, his failure to cooperate with the process of obtaining an ETD and the likelihood that an ETD would be received within a reasonable time from the Moroccan authorities.
On 27 February 2012 by order of Wilkie J the claimant was given permission to amend his grounds of claim and for the defendant to make disclosure of certain items.
On [20] 25 April 2012, Irwin J granted permission to apply for judicial review and on 18 May 2012, Irwin J ordered bail to be granted. The claimant was released on 1 June 2012.
On 19 April 2013 the matter was stayed by consent order upon the parties confirming they wished to explore the possibility of settlement.
On 8 November 2013 upon the parties being unable to agree a settlement the matter was set down for a substantive hearing and the defendant was ordered to file and serve detailed grounds of defence and any further evidence relied on.
Claim in outline
The claimant was detained under the Immigration Acts between 14 September 2007 and 1 June 2012.
The claimant's case is that:
1) his detention was of unreasonable duration in all the circumstances and so unlawful;
2) the defendant cannot show on the balance of probabilities that the claimant would be removed within a further reasonable period, having regard to (i) the very lengthy period of time already spent in detention and (ii) the difficulties the defendant has in returning undocumented Moroccan nationals to Morocco;
3) the defendant failed to act with reasonable diligence and expedition to remove the claimant from the United Kingdom and thus was in breach of the Hardial Singh principles 2, 3 and 4;
4) in any event he was unlawfully detained from 14 September 2007 to 9 September 2008 during which time the unlawful policy considered by the Supreme Court in Lumba v the Secretary of State for the Home Department [2011] 2 WLR 671 was in force;
5) He was further falsely imprisoned between 2 December 2009 and 14 July 2011, during which time the defendant's reviews of his detention "[did] not partake of the quality or character required to justify the continuance of detention" ( R(Kambadzi) v SSHD 1 WLR 1299 at 86) because of the defendant's reliance upon the false premise that the claimant had been convicted of indecent assault.
The claimant accepts in the light of Lumba and Kambadzi that the matters complained of in 4 and 5 will result in substantial damages only if the court establishes that the claimant would otherwise have been released. The core issue is therefore whether and when the claimant's detention breached the Hardial Singh principles. The claimant submits that it must or should have been clear at all times, but in any event no later than August/October 2010, alternatively, March/May 2011 or (as a fallback position) November 2011 or February 2012 that the claimant could not be removed within a reasonable period and that he is entitled to damages in respect of those periods.
Factual background
The claimant has in the past claimed that he was Palestinian but in his witness statement dated 16 May 2012 (E2) his evidence is that he was born on 8 March 1980 in Morocco and lived there until he was 10 when he moved to Spain. According to the claimant he entered the UK on 28 th July 2002.
Asylum claim
The claimant claimed asylum in August 2002 but failed to attend the screening interview in September 2002. His claim was refused in October 2002 on the basis of his failure to progress it.
Arrests/convictions/failure to report
On 24 October 2002 the claimant was arrested for theft and served with illegal entry papers. On 5 November he was released on temporary admission with a requirement to report –he failed to report on 10 November and was listed as an absconder on 24 November 2002.
The Claimant has a number of convictions as follows:
10 January 2003 – shoplifting (12 month conditional discharge);
15 August 2003 – being drunk and disorderly (fine £5); Failing to surrender (fine £10); Breach of conditional discharge (fine £15);
26 November 2003 – shameless indecency (fine £75);
5 December 2003 – arrested for immigration offences: 27 January 2004 convicted of failure to observe conditions of leave to enter (six months imprisonment); assault on a constable (three months imprisonment concurrent); indecent exposure to the annoyance of residents (three months imprisonment concurrent);
24 May 2007 – burglary (15 months imprisonment and £340 compensation order).
In addition in March 2004, the claimant was arrested for indecent assault on a minor [and drug offences]. It is important to note at this point that the trial did not go ahead and there is no conviction for this alleged offence.
Imprisonment and deportation order
The conviction of 24 May 2007 resulted in a prison sentence, which came to an end on [16] September 2007. The claimant was served with notice of decision to make a deportation order in August 2007 and on 12 October 2007 a Deportation order was served.
History of immigration detention
The claimant has had two periods of immigration detention. The first period was from March 2004 to April 2005 and the second from 16 September 2007 to 1 June 2012 and it is the second period which is the subject of the claim.
The first period is of relevance however, both in terms of recording his history in the UK and assessing the risk of absconding and also in assessing the efforts of the Secretary of State during the second period to document the claimant and effect his deportation and the prospects of effecting a removal.
During the first period of immigration detention the claimant claimed to be Palestinian but was suspected by the defendant of being Moroccan. On 10 May 2004 application was made by the defendant for an Emergency Travel Document ("ETD") to the Moroccan authorities. On 29 July the Moroccan Embassy confirmed the claimant's fingerprints had been sent to Morocco but the application was refused on 27 September as no trace was found of him. After further investigations did not bring forward further information, the claimant was released on 10 April 2005.
The significant points arising out of the first detention are that firstly, although the claimant claimed to be Palestinian the defendant suspected the claimant to be Moroccan and secondly, his fingerprints were sent to the Moroccan authorities, but the Moroccan authorities rejected the application for the ETD as no trace was found of him.
In relation to the second period of detention this lasted for 4 years and 8 months until bail was ordered by this court and the claimant was released on 1 June 2012. I will deal below with the detailed chronology of the events whilst in detention. However I turn first to the legal framework.
Legal framework
Power to detain
Although the summary grounds suggest that the claimant was detained under the powers contained in section 36 of the UK Borders Act 2007 and the judge who refused permission proceeded on the assumption that this was the case, it is now accepted that the powers under which the claimant was detained would be those arising under paragraph 2 of schedule 3 to the Immigration Act 1971, which so far as relevant, provides as follows:
"(2) where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State, pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of subparagraph ( 1) or (2) above, when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
Limits on power to detain
The defendant's exercise of her statutory power to detain are limited in the manner described by Woolf J in Re Hardial Singh [1984] 1WLR 704 as restated in Lumba where Lord Dyson confirmed the following 4 principles:
(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;
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Fingerprint Comparison and Adversarialism: The Scientific and Historical Evidence
...namely Smith n 170 above at [20]. Though,see also R (on the application of Mohammed) vSecretary of State for the Home Department [2014] EWHC 972 (Admin). By comparison, the rstreported references to ‘ACE-V’on Westlaw US appears in the federal reports in U.S. vHavvard117 F.Supp.2d 848 (S.D.......