The Queen Upon the Application of Chibong Lucas v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] EWHC 1960 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3230/2015 |
[2016] EWHC 1960 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/3230/2015
Ms. S. Naik (instructed by Duncan Lewis) for the claimant
Ms. Rebecca Murray (instructed by Government Legal Department) for the defendant
Hearing dates: 4 th July 2016
The claimant, who is very probably giving a false name, arrived in this country using a false Hungarian passport in the name Chidibiere Ekechukwu. The name was probably his correct name but the documentation he relied on was false. He claimed to have been born in the Bakassi peninsula which at the time of his birth in 1986 was part of Cameroon but has since become part of Nigeria. He left the UK in November 2010 and travelled to Barcelona to visit, he said, the man who had helped him to escape from those who had trafficked him to Hungary. On his return to the UK on 21 November 2010, he was refused leave to enter since the forged Hungarian documents were identified as such and he was to be returned to Spain. He made an Article 8 ECHR claim. But he was charged with offences arising from his false documents. Following his conviction on 28 April 2011 he was sentenced to 18 months' imprisonment and in May 2011 was notified of his liability to automatic deportation.
The claimant then made an asylum claim alleging, still using the name Ekechukwu, that his father had tried to kill him. This claim was rejected (he accepts that it was wholly untrue and alleges he was told to put it that way by those then advising him). Removal to Nigeria was in due course directed. On 13 January 2012 he was interviewed by the Nigerian High Commission where he alleged that he was a Cameroon national named Chibong Lucas. This led to an attempt to remove him to Cameroon which was frustrated by his bad behaviour in assaulting his escort and urinating in the plane.
There followed a number of attempts to prevent removal by means of fresh claims for asylum, assertions that the claimant had significant mental health problems and production of evidence from an expert supporting his claim to be from Bakassi and so Cameroonian. None of that is directly material in the claim with which I am concerned which relates to a period of detention between 6 July 2015 and 9 July 2015. That detention is said to have been unlawful. I am afraid this claim has neither been properly presented nor properly argued as will become apparent. I have been burdened with much paper which was unnecessary. There is an application for judicial review before the Upper Tribunal (UT) relating to removal based on the expert evidence which I have looked at and which on its face, both the medical and that supporting his claim to be Cameroonian, is unimpressive.
The claimant is liable to be detained as one who is subject to deportation. I shall deal with the legal basis for detention in due course. His claim to have been the victim of trafficking was rejected in 2014 and an attempt at judicial review failed. In August 2014 he was granted bail subject to a number of conditions including reporting by the First-tier Tribunal (FTT). There was a battle pursued in the UT in relation to tagging and reporting conditions which the UT dealt with.
On 23 July 2013 the Cameroon High Commission wrote a letter to the Home Office stating that during his interview the claimant had "admitted unequivocally that he is a Nigerian and pleaded with the High Commission to help him frustrate removal directions by British Immigration". His birth certificate in his true name Chidibiere Ekechukwu was in his parent's possession in Nigeria. From his account, names and demeanour there were clear indications that he was an Ibo speaking Nigerian from South Eastern Nigeria. Finally, on 14 November 2014 the Cameroon High Commission refused to accept the claimant as a Cameroonian and so he could not be removed there.
It was accordingly necessary in order that he could be removed to obtain the necessary consent from Nigeria and an Emergency Travel Document (ETD). On 24 February 2015 the claimant refused a telephone interview with the Nigerian High Commission saying he needed a face to face meeting. Arrangements had been made with the Nigerian High Commission that its immigration officials would visit various detention centres to interview those who were said to be Nigerian and who needed an ETD to effect removal. Such a visit was arranged on 10 July 2015 and the claimant's case was to be considered then. It was decided by the defendant that he should be detained in order to be interviewed. The material minutes relating to this decision assert that there was a high risk of absconding and that the claimant posed a high risk of harm to the public having regard to his behaviour when he frustrated the prior attempt at removal. It was considered that detention was in the circumstances having regard to his deceitful conduct and past lack of cooperation proportionate. He was detained on 6 July 2015.
On 7 July 2015 the detention was challenged by this claim. Following an initial refusal of interim relief by Blake J on 8 July 2015, Kenneth Parker J granted relief on 9 July 2015 whereupon the claimant was released for a bail hearing to take place before the FTT and with a condition that he attend an interview with the Nigerian High Commission. A hearing before the FTT on 15 July 2015 led to a grant of conditional bail. On 20 July 2015 following an interview at the Nigerian High Commission which the claimant attended on 17 July 2015, an ETD was granted. Following refusal on the papers, Deputy Judge Seys-Llewellyn granted permission for judicial review on 26 November 2015. There have been subsequent attempts to remove and detention in March 2016 which have led to yet more litigation but I am not concerned with those save to express considerable concern at the amount of money that has been spent in relation to this claimant.
The claim as amended and as set out in Ms Naik's skeleton argument raised a number of issues including that the claimant's mental state meant that he was unsuitable for detention and that since there were outstanding challenges to his removal that removal could not be regarded as imminent and so detention was unlawful. I have no doubt that there was sufficient care available to deal with such genuine mental illness from which the claimant might suffer and that part of the claim was not pursued with any vigour.
In R (Lumba) v. SSHD [2012] 1 AC 245 Lord Dyson, speaking for the majority, said in paragraph 30, in dealing with the Hardial Singh principles ( R v Governor of Durham Prisonexp Hardial Singh) [1984] 1 WLR 704),:-
"All that the Hardial Singh principles do is that which Article 5(1) [of the ECHR] does: they require that the power to detain be exercised reasonably and for the prescribed purpose of facilitating deportation".
The obtaining of an ETD is essential if deportation is to be effected when, as is often the case, the deportee has no valid documentation. Thus if he has been uncooperative and there is good reason to believe that he will not attend an interview unless detained and so made available, detention will be lawful. It is not necessary nor do the Hardial Singh principles require that actual deportation is imminent. No doubt, if bail is otherwise appropriate, following the interview bail should be granted.
I must now deal with the relevant statutory provisions which deal with the power to detain. They are contained in Schedules 2 and 3 to the Immigration Act 1971. Regrettably, neither counsel in their skeletons nor in the hearing before me identified the correct paragraphs. Schedule 2 Paragraph 10 permits detention for the purpose of examination of those seeking leave to enter. It does not apply directly to such as the claimant who is subject to a deportation order. The power to detain such as him is contained in Schedule 3 Paragraph 2(3) which is headed "Detention or control pending deportation". Paragraph 2(4A) of Schedule 3...
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