R Yonas Hagos Gaber v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 01 June 2012 |
| Neutral Citation | [2012] EWHC 1751 (Admin) |
| Date | 01 June 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6660/2010 |
[2012] EWHC 1751 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/6660/2010
Mr D O'Callaghan (Mr A Parkinson for judgment) (instructed by Duncan Lewis & Co) appeared on behalf of the Claimant
Mr M Barnes (Mr R Kellar for judgment) (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Introduction
In this judicial review the claimant challenges the decision of the Secretary of State for the Home Department to detain him from 5th October 2007 until 21st September 2010 pending the enforcement of a deportation order. On 21st September 2010 the Tribunal granted him bail. It is said on the claimant's behalf that his detention between 5th October 2007 and 29th September 2008 was unlawful as it was based on the unlawful policy identified in Lumba v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. It is then said that his detention between 29th September 2008 and 21st September 2010 was unlawful since it was based on a failure to apply policies relating to the detention of foreign national offenders in force at that time. In any event, it is said on the claimant's behalf that his detention during the whole of the period from 5th October 2007 until 21st September 2010 was unlawful since it was contrary to the Hardial Singh principles in that there was no reasonable prospect of returning him to Ethiopia or Eritrea and because the Secretary of State failed to act with sufficient diligence in attempting to effect his removal.
Immigration history
The claimant was born in 1972 in Ethiopia of Eritrean heritage. On 23rd May 1991 he travelled to the United Kingdom using an Ethiopian passport and was granted leave to enter as a visitor. He claimed asylum the same day and told the Secretary of State that he was Eritrean by birth and had been living in Addis Ababa. He said that living there had become hell since he had started high school. The application was refused on 26th January 1993 but he was granted exceptional leave to remain. That leave was later extended. There is an internal manuscript note by a Home Office official in January 1996 that since he had claimed Eritrean origin at birth "I think we can accept him as Eritrean".
As a result of his offending, which I outline later, on 19th May 2003 the Secretary of State served the claimant with a letter informing him of his liability to deportation to Ethiopia. The claimant said in response that he had no family in Ethiopia. On 18th September that year the Secretary of State served the claimant with a notice of a decision to deport him to Ethiopia. The claimant appealed that order raising asylum grounds. The case he advanced in his grounds of appeal was that his father worked for Ethiopian Airlines but he was an ethnic Eritrean and would not be accepted by Ethiopia. On the other hand, he would not be accepted by the Eritreans because he did not speak the language, had been brought up in Ethiopia and had not contributed in any way to Eritrean independence. In the witness statement for the hearing the claimant said that he considered himself to be Ethiopian until he started having difficulties there. After he left Ethiopia he realised the problems those of Eritrean descent had in Ethiopia and his feelings were that he was Eritrean. He was trying to learn the language.
Before the Immigration Appeal Tribunal itself his case was that although he had arrived in the United Kingdom on an Ethiopian passport, he felt closer to Eritrea, albeit that he had not applied for Eritrean nationality. He had a half-sister in the United Kingdom. She gave evidence to the Tribunal that her parents were of Eritrean ancestry and ethnicity. In August 2004 his appeal was dismissed. In the course of his reasons the adjudicator accepted that the claimant was an Ethiopian national but of Eritrean ethnicity:
"He would not face treatment on account of his Eritrean ethnicity sufficiently severe as to amount to persecution or Article 3 ill-treatment on return to his country, Ethiopia."
In September 2004 an application for permission to appeal to the Immigration Appeal Tribunal was refused, and when his appeal rights were exhausted on 24th November 2004 the deportation order was signed. Because of the deportation order he was transferred into immigration detention when the then current custodial period had expired. When in immigration detention he was interviewed at the Ethiopian Embassy in London with a view to obtaining an emergency travel document. The Embassy declined to issue this since the claimant declared at the end of the interview that he was Eritrean.
On 1st January 2006 the claimant was released from his first stint of immigration detention. Seven months later, in August 2006, the claimant made a further application for asylum, asserting a well-founded fear of persecution in Ethiopia. The Secretary of State rejected that application.
Following the claimant's conviction in August 2007 for further offending, and the period of custody under that sentence drawing to an end, the claimant was detained under immigration powers for the second time. As I have said, the second period of immigration detention ran from 5th October 2007 until he was released in September 2010.
While in detention the claimant made a further asylum application in the middle of December 2007, asserting a well-founded fear of persecution in Ethiopia as being of Eritrean ethnicity. However, his representatives also said that he feared a return to Eritrea. In January 2008 he was interviewed with regard to that application and asserted that his nationality was Eritrean. He was interviewed a second time in March 2008 in relation to his assertion that he was a Pentecostal and therefore feared returning to Eritrea. That application concerning fear of return to Eritrea was refused the following month, April 2008, on the basis that he was to be returned to Ethiopia, not Eritrea. There was no challenge to that decision.
Offending history
At this point let me outline the claimant's offending history. From 1994 the claimant had a string of criminal convictions. His explanation for his offending was his addiction to drugs. In April 1994 he was fined for possessing an article with a blade or point in a public place. In December 1995 and October 1997 there were fines for theft from the person. In January 1998 he was before the magistrates again for travelling on a railway without paying a fare, an offence committed on bail.
The first of his nine sentences of imprisonment was for common assault on 16th April 1998, when he was given three months' custody. Associated with that were offences of failure to surrender to custody at the appointed time. There was custody again for 28 days for theft and assault of a constable. In October 1998 he was convicted of common assault and a custodial sentence of four months was imposed. In 1999 he was sentenced again to custody, this time for three months, for possession of a Class B drug.
His first appearance at the Crown Court was in December 1999, when he was given three months' imprisonment concurrent for offences of going equipped to cheat, offering to supply a Class B drug and two offences of failure to surrender to custody at the appointed time. Then in June 2000 he was sent to prison for two years for robbery. On his release in May 2001 he was sentenced again to three months' imprisonment, this time for offering to supply a Class A drug. There were serious offences of robbery and assault with intention to rob in June 2002, when he was given three years' imprisonment concurrent for each. Then, as I indicated earlier, on his release from his first stint of immigration detention he committed a further offence, this time benefit fraud. He was sent to prison for four months on 7th August 2007. In all, the claimant had 16 convictions for some 27 offences.
Let me anticipate by proffering my conclusion that on the basis of this record he was a persistent offender and someone who posed a reasonably high risk of committing further offences, possibly serious offences.
Detention 2007 to 2010
As is the normal course after being taken into immigration detention, the claimant was subject to regular reviews deciding whether to authorise further detention. I was referred to several of these during the hearing relating to the claimant's second period in detention. The first was dated 10th November 2007. The immigration officer giving authority to maintain detention wrote that:
"On his file, there are still notes stating that his identity has not been resolved - Eritrea or Ethiopia?"
The officer then added that the claimant's removal was not imminent since an emergency travel document had been refused by the Ethiopians, even though he had had a passport issued by them when he came to the United Kingdom:
"I note that he told the Ethiopians that he was Eritrean and this may be seen as an attempt to thwart removal but this was in June 2005 so it may be helpful to have him re-interviewed in relation to his nationality."
The officer continued that the claimant appeared to have reported regularly as required after his release from his first stint of immigration detention, and that although he had been sentenced for the serious offence of robbery the current sentence was a short one for fraud. The official made reference to the policy which the Supreme Court...
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