R (Wang) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 05 June 2009 |
| Neutral Citation | [2009] EWHC 1578 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2588/2009 |
| Date | 05 June 2009 |
[2009] EWHC 1578 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Mitting
CO/2588/2009
Miss N Finch appeared on behalf of the Claimant
Miss S Lambert appeared on behalf of the Defendant
: By this claim, the claimant - a young man of 22 who asserts that he is a national of China - seeks a declaration that his detention under immigration powers has become unlawful and seeks an order for his release.
The bare facts which I am about to recite present a deeply troubling picture. The claimant arrived unlawfully in the United Kingdom on 1 June 2004. Seven days later he was arrested and served with notice of illegal entry. He then claimed asylum. The basis of his asylum claim was that he came from a village in a rural area in the Province of Fujian, that a local official was determined to take land belonging to his family and so he fled. Unsurprisingly his claim to asylum was refused on 4 August 2004 because, even if everything that he said was true, it did not give rise to a fear of persecution for a Refugee Convention reason.
The claimant did not appeal against that decision. He was not then detained. While at liberty he committed a number of criminal offences. On 17 or 18 March 2005, at Middlesex Guildhall, he was convicted of making an article for sale or hire which infringed copyright and for having on him in a public place an article with a blade that was sharply pointed. He was sentenced to a total term of 12 weeks' detention in a young offender institution. He asserts that the bladed article was a fork which he had with him for the purpose of eating noodles. It seems an improbable account but there is nothing in the documents which I have to gainsay it.
The first application he made for emergency travel documents to the Chinese Embassy was on 4 May 2005. He made the application because he had no identity card or passport himself. On 6 May 2005 the Chinese Embassy refused to issue travel documents because it could not, it claimed, verify his address, a theme which, over the course of the next four years, became a repeated theme.
When he made that application he was in detention. He was released on 11 May 2005. Meanwhile he had committed further offences of a commercial nature, selling goods bearing false trade marks and one offence of failing to surrender to custody at the appointed time, for which he was sentenced to a short period in a young offender institution.
On 13 January 2006 at West London Magistrates' Court he was convicted of an offence of common assault, committed on 12 December 2005, and sentenced to 30 days' detention concurrent in a young offender institution. As by now had became part of a familiar pattern, he was also fined for engaging in street trading in a prohibited street. On 28 February 2006 he was fined for failing to surrender to custody at the appointed time and served one day in lieu. On 30 March 2006 he was sentenced to four months' imprisonment for an offence of offering or exposing for sale goods bearing false trade marks with offences taken into consideration. On 12 July 2006 he was given a conditional discharge for having negatives for publication of obscene articles for gain. On 19 September 2006, for possessing an article infringing copyright and engaging in street trading in a prohibited street, he was fined and sentenced to 12 weeks' detention in a young offender institution. He was sentenced to 16 weeks' detention on 6 October 2006 for further offences.
That concludes his criminal history. The pattern which it demonstrates is one of repeated petty crime, of repeated failures to surrender to custody when required to do so and some indication of minor violence and the possession, on one occasion, of a bladed article.
On 22 November 2006 he was served with notice of intention to make a deportation order while at the young offender institution to which he had been committed on 6 October 2006. He waived his right of appeal against that decision. In December 2006 he was released into immigration detention. On 13 April 2007 he was transferred to Oakington Immigration Reception Centre. He has been in immigration detention ever since. On 9 May 2007 he was interviewed by a Mandarin-speaking interpreter. According to a note in the UK Border Agency Authority's file, he spoke a local dialect with a Chinese official. The Chinese Embassy apparently informed UKBA officials that the Ministry of Public Security had provided a report, stating that the claimant “may be” Chinese.
On 1 June 2007 the claimant was served with a deportation order dated 25 May 2007. He did not attempt to have that order revoked. On 22 June 2007 he applied for voluntary assisted return under the United Kingdom's voluntary assisted return and re-integration programme. On 25 June 2007 that application was refused on two grounds. First, a deportation order had already been signed and served and, secondly, he had been disruptive and aggressive towards other detainees in the detention facility.
On 9 July 2007 he was interviewed by the Chinese Embassy who stated that they were unable to verify his identity. On two occasions - in July and November 2007 - he was involved in a fight in the detention centre, said to have been caused by stress. On 26 November 2007 he was interviewed by the Ministry of Public Security, and a report was submitted to the Embassy which rejected it on 7 March 2008.
On 25 February 2008 he applied again for voluntary assisted return which was refused again on the following day. On 11 June 2008 a further application for an emergency travel document was made. On 2 July 2008 the Chinese Embassy notified the UKBA that it was unable to confirm his identity and nationality.
Meanwhile there arose concern about his mental state, to which I shall refer later. A report was obtained by Professor Katona, a consultant psychiatrist.
In August, he was again involved in a fight with another detainee caused by “stress”. On 24 October 2008 he was granted NASS Section 4 accommodation in principle were he to be admitted to bail. He applied to an immigration judge for bail but, on 31 October 2008, bail was refused. The reasons given were that he was likely to commit an offence unless detained in detention and that he was suffering from mental disorder, and continued detention was needed in his interests or for the protection of others and that there were substantial reasons for believing that, if admitted to bail, he would abscond. The tick-box form was supplemented by a handwritten note of the decision to like effect. On 7 December 2008 he was again involved in a fight with a detainee and relocated to a cell under Rule 42 of the Prison Rules.
On 10 December 2008 he was examined by another psychiatrist, Dr Ahmed, on behalf of the UKBA. I will refer to his conclusions later.
On 15 January 2009 a further application was made to the Chinese Embassy for an emergency travel document. He was again interviewed and the Embassy refused to issue him with such a document. On 21 February 2009 he was returned to the residential unit from his cell. On 24 February 2009 he was transferred to Harmsworth Immigration Removal Centre. Meanwhile this litigation commenced.
Throughout the period of his detention periodic monthly reviews were carried out, and on each occasion the decision to continue to detain him was made. The latest such decision - dated 12 May 2009 - summarises the history which I have recited and gives the reasons for maintaining detention. It is not necessary to refer to earlier decisions. Such as I have seen are broadly the same. In any event, I am only concerned with the lawfulness of detention as of now and not in the past. The reasons given are as follows:
“The only barrier to Mr Wang's removal is the issue of an ETD. However Mr Wang has failed repeatedly to provide accurate information on his bio-data and registration forms for verification of identity, the consequence of which is that the Chinese embassy has been unable to document him. The timescale for Mr Wang's removal depends on how long he remains non-compliant. As soon as he is documented, arrangements will be made for him to be removed from the United Kingdom.”
The conclusions are stated under the heading “Proposal”:
“Mr Wang's case has been considered against the current criteria in favour of presumption of release. The presumption to release is balanced against the probability of removal within a reasonable time scale, harm to the public and whether the subject is likely to adhere to the release conditions. Mr Wang is an illegal entrant and failed asylum seeker. He is an habitual offender with...
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