The Queen (on the application of Khalid Belfken) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Karen Steyn |
| Judgment Date | 19 July 2017 |
| Neutral Citation | [2017] EWHC 1834 (Admin) |
| Docket Number | Case No: CO/6475/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 July 2017 |
[2017] EWHC 1834 (Admin)
Karen Steyn QC
(Sitting as a Deputy High Court Judge)
Case No: CO/6475/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Graham Denholm (instructed by TRP Solicitors) for the Claimant
Ms Natasha Barnes (instructed by GLD) for the Defendant
Hearing dates: 4 July 2017
Approved Judgment
Karen Steyn QC:
A. Introduction
The Claimant is a 27 year old Moroccan national. On 5 March 2005, at the age of 15, the Claimant entered the United Kingdom. Shortly after his arrival, he claimed asylum. This claim was refused, but the Claimant was granted Discretionary Leave to Remain until his 18 th birthday. For reasons which I explain below, on 4 February 2008, the Claimant was made subject to a deportation order.
The Secretary of State detained the Claimant, pursuant to immigration powers, from 12 July 2016 until 3 May 2017. This is an application for judicial review of the lawfulness of this period of detention. Permission was granted by Sir Wyn Williams, sitting as a High Court Judge, at an oral hearing on 2 March 2017.
In these proceedings, the Secretary of State has acknowledged that from 7 September 2016 onwards the Claimant's detention was unlawful. This concession has been made on the basis that the Secretary of State accepts that, throughout the period from 7 September 2016 to 3 May 2017, there was no realistic prospect of removal of the Claimant within a reasonable period.
In light of this concession, the remaining issues between the parties are (i) whether the Claimant's detention between 12 July 2016 and 7 September 2016 was lawful; (ii) whether the Claimant should only be entitled to nominal damages in respect of his unlawful detention between 2 March 2017 and 3 May 2017, in view of his expressed wish to remain in detention until suitable bail accommodation was available for him; and (iii) the quantum of damages that should be awarded.
B. The Facts
The Claimant has an appalling offending history. Prior to the Secretary of State's decision on 4 February 2008 to make a deportation order against him, the Claimant had been convicted of the following offences:
| Date of Conviction | Offence(s) | Sentence |
| 7 October 2005 | Theft from a person Burglary Theft from a dwelling Going equipped for theft | Referral Order, 10 months |
| 12 December 2005 | Criminal damage Breach of referral order | Additional two-month referral order |
| 4 May 2006 | Assaulting a police officer Criminal damage Breach of referral order | 4 month detention and training order |
| 29 September 2006 | Burglary Handling stolen goods | 18 month supervision order 4 month detention and training order |
| 6 November 2006 | Possession of an offensive weapon in a public place Possession of a Class B drug, Cannabis | 18 month supervision order 4 month detention and training order |
| 16 July 2007 | Burglary Assault of a constable | 12 month community order with 60 hours' unpaid work. |
| 2 August 2007 | Criminal damage Failing to surrender | Sentence concurrent with existing 12 month community order |
| 13 September 2007 | Burglary of a dwelling with intent to cause unlawful damage Breach of a community and rehabilitation order | 6 month detention and training order |
The Claimant's custodial sentence came to an end on 8 February 2008. He remained in immigration detention for a period of three years and one month, until his release on bail on 9 March 2011. The only barrier to the Claimant's removal has been his lack of travel documentation.
During this first period of immigration detention, three unsuccessful attempts were made to obtain an emergency travel document ("ETD") for the Claimant from the Moroccan Embassy:
i) The first application for an ETD was made on 15 May 2008. On 3 September 2008 notification was received that the " ETD has been unsuccessful with Moroccan Embassy". It was noted that " finger print checks were made by the Moroccan Embassy, as every adult should be finger printed, however sub's finger print yielded a no trace, however this could have been due to sub's young age when he left Morocco and his family not arranging for his fingerprints to be taken".
ii) The second application for an ETD was submitted to the Moroccan Embassy on 30 June 2009. The application was rejected on 10 December 2009. The GCID notes record: " Telephone call received from the Moroccan Consulate. The official has said that the subject is unknown to the Moroccan authorities. Therefore an emergency travel document will not be issued for this subject. If there is any relevant information or evidence to support the subject's Moroccan nationality this should be forwarded to RGDU".
iii) The third application for an ETD was submitted to the Moroccan Embassy on 30 April 2010. On this occasion, the application was supported by a linguistic analysis report. The Claimant has had two language tests, one in 2008 at his screening interview and another in 2010. On both occasions, the independent interpreters involved considered that the Claimant's accent and diction was Moroccan rather than Algerian. Nevertheless, this application was also refused, on 31 December 2010, on the grounds that " subject is not identified as Moroccan national".
Following his release on 8 March 2011, the Claimant failed to report from 16 May 2011 onwards and, whilst on bail, he resumed his criminal activities. He was arrested on 26 May 2011 and subsequently received the following further convictions and sentences:
| Date of Conviction | Offence(s) | Sentence |
| 28 June 2011 | Burglary Theft Failing to surrender to custody | 34 weeks' imprisonment |
| 6 September 2011 | Burglary Theft Burglary with intent to steal | 18 weeks' imprisonment (consecutive to the earlier sentence) |
The Claimant's 12-month custodial sentence concluded on 23 December 2011, at which point he was detained for a second time pursuant to immigration powers, for the purpose of effecting his deportation. The Claimant filed a judicial review claim on 18 May 2012. The matter came before Beatson J for an oral permission and interim relief application: [2012] EWHC 2932 (Admin). The judge observed:
"4. …His immigration detention commenced at the end of his most recent period of custody on Christmas Eve 2011. Further attempts were made by the defendant to obtain travel documents. On 24 April 2012 the claimant attended at the Moroccan embassy for a face-to-face interview. The defendant had provided the claimant's fingerprints to the Moroccan authorities in January following a request. But the outcome of the interview in April was that the embassy informed the defendant that the claimant was not known in Morocco from the fingerprints submitted and they were unable to confirm his nationality in the interview.
…
9. I have concluded that, on the basis of the material before me, taking into account the three-year period of detention between 8 February 2008 and 9 March 2011, and the failure to obtain any travel documents in that period, that the very exiguous material as to the defendant's efforts in respect of the more recent period of detention do not begin to address the burden of proof on her. That is not to say that that burden of proof may not be satisfactorily discharged when there is a proper explanation of the difficulties and why it is that the defendant considers that the Moroccans have rejected the claimant. It may be that notwithstanding the absence of fingerprints and notwithstanding [the] result of the face-to-face interview, there is nevertheless a reasonable prospect of removal in a reasonable period.
10. Accordingly, permission is granted to challenge the legality of the period of detention since Christmas Eve 2011. It may turn out that part of that period is lawful, and that the real issue will be the lawfulness of the detention after the April 2012 face-to-face interview with the Moroccans.
…
14. Having granted permission for the more recent period, I turn to the application for the claimant to be released forthwith. The parties have discussed the possibility that release would be ordered. A suitable address has been agreed. … I have serious concerns about releasing this claimant. His history is a very unattractive one. He has a large number of offences which must have caused distress to his victims. I had very little detail of those offences. I am told that he also has adjudications in respect of his period in prison. Nevertheless, in view of the state of the evidence against a background of a failure to obtain travel documents over a three-year period, and then the lack of progress that I have described over the last seven months, I consider that the claimant is entitled to the interim relief which he seeks pending the determination of the court."
It can be seen that during this second period of immigration detention, a fourth ETD application was made. For the first time, on 24 April 2012, the Claimant attended a face-to-face interview with the Moroccan authorities. Nevertheless, the ETD application was again rejected.
It is readily apparent that Beatson J was very reluctant to release the Claimant, recognising the high likelihood he would commit further offences. But there was such scant support for the Secretary of State's contention that there was, at that time, any prospect of removing the Claimant within a reasonable period, that Beatson J reached the firm view the Claimant had to be released at the interim stage.
Accordingly, the Claimant was released from detention on 12 July 2012, subject to a restriction order and electronic monitoring. The judicial review proceedings were subsequently settled on terms confidential...
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