Rapheael Olufemi Oluponle v The Home Office

Hearing dates: 14–15 November 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 13 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr Caspar Glyn KC:

Introduction

The claimant, a Nigerian national, claims damages for false imprisonment, unlawful detention and personal injury following detention by the defendant between 4 May and 2 November 2016 – a period of 182 days, almost 6 months.

It is not in issue that the claimant was detained. The issues are

i) First, was any part of the claimant's detention unlawful at Common Law?

ii) Second, was any part of the claimant's detention unlawful by reason of a public law error bearing on the decision to detain?

iii) Third, if any part of the claimant's detention was unlawful by reason of the public law error on the decision to detain, can the defendant prove that the claimant could and would have been detained in any event?

iv) Fourth, if the claimant was falsely imprisoned or unlawfully detained in in what sum should damages be assessed?

The claimant's pleaded case is that he was detained in breach of the Hardial Singh principles because

i) The defendant was unable to act with reasonable diligence and expedition to effect the claimant's removal;

ii) There was a legal barrier to removal;

iii) The certification of the claimant's Protection and Human Rights claim was unlawful;

iv) The unlawful certification of the claim rendered the decision to detain him automatically unlawful;

v) The unlawful certification of the claim had a direct material bearing on the decision to detain the claimant;

vi) The defendant failed to take relevant considerations into account particularly the claimant ties;

vii) The defendant failed to appreciate that removal could not be effected within a reasonable time;

viii) The defendant failed to apply its policy on detention of asylum seekers and vulnerable individuals;

ix) The defendant failed to carry out a satisfactory and adequate review of the claimant's detention;

x) The defendant failed to consider alternatives to detention or other legitimate ways of securing the claimant's removal from the UK.

xi) The defendant acted in breach of the claimant's right to liberty and his right to respect for his private life under Articles 5 and 8 respectively of the European Convention of Human Rights.

PRELIMINARY MATTERS

At the Pre Trial Review Soole J refused to grant an application for the defendant's witness to give evidence remotely – no application had been made, the witness was not identified and full reasons not given as to why remote evidence was required.

Mr Howarth renewed the application on the morning of the trial. The reasons for the application are that the defendant's witness, Ms Pritchard, lives in the Liverpool area. She is the sole parent of a 9-year-old child, would not be able to take her child to school if she had to come to London, has no alternatives for childcare. She had no one else to ask save for her mother who is 80 and would be unable to pick her up and drop her off from school.

Ms Renfrew objected to Ms Pritchard giving evidence by CVP. She submitted that the reasons were not substantial enough, the claimant would suffer prejudice through not being able to cross examine the defendant, on whose evidence the defendant's case was reliant, in person. Ms Renfrew accepted that no other witness could be found in time and that, therefore she submitted that the application should be dismissed, the case adjourned, refixed and the defendant pay the costs of and occasioned by the adjournment.

I granted the defendant's application with the expressed reservation to Mr Howarth that the late application was such that it tended to present the Court with a fait accompli, as the Court would have to grant the application, or adjourn. The strong message should be sent back to those instructing Mr Howarth that a late application such as this one was wholly inappropriate. If there are reasons as to why a witness cannot travel then another should be selected in good time for the trial or an early application made.

However, I was entirely satisfied that it was in the interests of justice to grant the application. Ms Pritchard had some dealings with this case. The only alternative would have been to adjourn the case, wasting the time set aside by the Court, wasting a large amount in costs and delaying this litigation and other cases which could use the time in which the case would be refixed. I was satisfied that this was a case where credibility would be tested on the documents and that that could be adequately performed via CVP. I was assured that an electronic bundle would be provided to Ms Pritchard.

When Ms Pritchard began to give evidence there was an issue with the correct bundle. It was solved within 30 minutes. The link was of excellent quality. Ms Pritchard's face was clearly visible. She used a headset so that her answers were easy to hear. Ms Renfrew was able to ask all her questions, take the witness to the documents and cross-examine her effectively as some of my findings below demonstrate.

Further, Ms Renfrew invited me to allow her to ask, in chief, questions surrounding the allegation in respect of the defendant's contention that he absconded in or around 3 December 2006.

CPR 32.5(1) sets out the rules in respect of the limitation of evidence to exchanged witness statements. It provides materially that that

“ (2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise.

(3) A witness giving oral evidence at trial may with the permission of the court—

(a) amplify his witness statement; and

(b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

(4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.”

The parties agreed that on his release reporting conditions were imposed on Mr Oluponle. Further, the claimant's statement did not deal with any matters as to absconding or failing to report. The only evidence in respect of that issue were the records of the Home Office to which Ms Pritchard referred which dealt with notes taken from 2006. At this stage of the case I considered that an assessment of risk in this case would be informed by the evidence as to whether the defendant absconded or whether he stopped reporting because he was told to do so by the Home Office. This case involves important rights as to unlawful detention and false imprisonment. I considered, at this stage, that it was important, to hear the only direct oral evidence currently available to the court. I wanted to see if Mr Oluponle could provide an explanation as to why, as agreed, he stopped reporting.

Mr Howarth objected on the grounds that he would be taken by surprise by this evidence. He did have the notes which gave his client's version of events. I balanced the issue of surprise by making it clear that I would limit Ms Renfrew to only a few questions directly related to the claimant's failure to report and would take into account that the evidence was presented late.

THE FACTS

I heard from Mr Oluponle in person and, as set out above, from Ms Pritchard on a video link. She is a Senior Operations Manager with the defendant who manages teams which consider and progress deportation action against foreign national offenders. The facts were largely agreed by counsel based on the notes kept by the Home Office. Both Mr Howarth and Ms Renfrew cooperatively worked together, presented their cases ably and professionally and provided me with great assistance. I record my thanks to both of them.

Events

Mr Oluponle was born in Nigeria on 22 June 1967. He told us in his statement that he entered the United Kingdom in about July 1999 but the verified Particulars of Claim signed by him assert that he entered the UK in about November 2005. Mr Olunpole was not satisfactorily able to answer why there was a difference between the two documents. He told me that he entered the UK in about 1999.

On 23 February 2006 the claimant was arrested at Stansted Airport when he attempted to fly to Ireland on a counterfeit passport in the false name of Mr Michael Orija. On 21 March 2006 he was convicted at Basildon Crown Court in the name of Orija and sentenced to 12 months' imprisonment. There is a description of one conviction and two offences but no PNC record was shown to me. Mr Howarth submitted that there were two offences namely of having a counterfeit passport and using that passport. The material facts for any risk assessment were that the claimant had a counterfeit passport and used it to attempt to defeat immigration controls.

Throughout this period the defendant only knew the claimant as Michael Orija, the name on the counterfeit passport, and it was in that name that all the Orders and records were made in 2006 and thereafter in pursuing the claimant who was only known to the defendant as Michael Orija.

The claiment was served with a Notice of Decision to Make a Deportation Order on 7 June 2006 and he signed a disclaimer waiving his appeal rights and requesting to be removed to Nigeria. An Emergency...