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Cite as: [2017] EWHC 507 (Admin)

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Neutral Citation Number: [2017] EWHC 507 (Admin)
Case No: CO/5691/2016

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
17/03/2017

B e f o r e :

PHILIP MOTT QC
Sitting as a Deputy High Court Judge

____________________

Between:
THE QUEEN
on the application of BASHDAR ABDULLA QARANI
Claimant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

____________________

Naina Patel (instructed by Deighton Pierce Glynn) for the Claimant
Saara Idelbi (instructed by Government Legal Department) for the Defendant

Hearing dates: 15 & 16 February 2017

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Philip Mott QC :

  1. This is a claim for unlawful detention under immigration powers from 20 November 2015 to 21 December 2016, a total of 13 months. For reasons which appear in this judgment I have concluded that the claim is made out, but the period of unlawful detention is limited to 11 months.
  2. The Claimant is Kurdish. He belongs to that part of the Kurdish people who inhabit the borders of Iran and Iraq. That is shown by his use of the Sorani dialect, and is agreed by both parties. He claims to have been born in Iran, about 10 miles from the Iraqi border. The Defendant now believes that he is in fact Iraqi. It is not suggested on either side that there is any other possible nationality, or that he could be stateless.
  3. The Claimant entered the United Kingdom clandestinely in January 2005 and claimed asylum. That claim was refused in March 2005 and his appeal was dismissed by the Asylum and Immigration Tribunal on 4 May 2005. He became appeal rights exhausted in June 2005 but did not leave the UK. In due course, on 25 August 2010, he was granted indefinite leave to remain because of his length of residence in the UK. That was despite him having a criminal record by that date. He was convicted on five occasions between January 2010 and November 2011 of offences of battery, theft, having a bladed article in a public place, and disorderly behaviour. In addition he had been on the absconder list between September 2005 and February 2008, and again between October 2008 and June 2010. None of these facts prevented the grant of indefinite leave to remain.
  4. Then on 13 November 2012 the Claimant was sentenced to a term of 4 years' imprisonment, having been convicted of attempted rape after a trial. That put him on the Sex Offenders Register for life, and he was assessed at MAPPA Level 1. It also made him liable for automatic deportation, and an order was made against him under section 32(5) of the Borders Act 2007 on 4 March 2013. On 26 July 2014 he completed the custodial part of his sentence, and became eligible for release on licence. Instead he remained in detention under immigration powers.
  5. The Claimant appealed against the deportation order, but this was dismissed by the First-tier Tribunal in March 2015. His appeal rights became exhausted on 2 April 2015. The Defendant then sought to arrange an Emergency Travel Document ("ETD") for the Claimant to return to Iran, as he had no travel document of his own. He attended an interview at the Iranian Embassy in May 2015. But on 29 June 2015 the Iranian Embassy stated that it would be unable to issue an ETD without an Iranian identity document. It apparently advised the Claimant to get his family in Iran to obtain certified identity documents to confirm his identity. This presented a problem as the Claimant said he had had no contact with his family since 2005, and they may have migrated to Iraq.
  6. In about November 2015, in circumstances which I must examine in more detail later, the Defendant concluded that the Claimant was most probably not Iranian, but Iraqi. An Iranian nationality interview was conducted on 19 January 2016, but not written up until 28 October 2016 in a Nationality Statement. No Iraqi nationality interview was ever conducted (though one was scheduled for 23 March 2016) and no further progress was made in the search for proof of his nationality prior to his release in December 2016 by order of this court.
  7. Issues

  8. Against this background the Claimant brings four challenges by way of judicial review:
  9. i) Ground 1 – that the change of mind by the Defendant in November 2015 amounted to an adverse decision which is amenable to judicial review, and was irrational and thereby unlawful.

    ii) Ground 2A – that his detention from and since 20 November 2015 was unlawful on Hardial Singh principles.

    iii) Ground 2C – that the Defendant unlawfully failed to disclose a significant part of the reasons for her decision, being information obtained from a number of contacts listed on the Claimant's mobile phone and other reasons included in the Nationality Statement of 28 October 2016.

    iv) Ground 3 – that the Defendant unlawfully failed to determine the Claimant's applications for bail accommodation under section 4 of the Immigration and Asylum Act 1999 within a reasonable time or at all.

  10. Ground 2B is no longer pursued by the Claimant. It follows from the way in which Ground 2A is put that he accepts immigration detention from 26 July 2014 to 20 November 2015 was justifiable.
  11. In relation to Ground 1 it is accepted that I am not asked to determine as a fact whether the Claimant is Iranian or Iraqi. My task is to decide whether there was a decision amenable to judicial review and, if so, whether it was rational. However, even if the Claimant fails on this Ground, the evidence is relevant to the determination of Ground 2A, and the Defendant's obligations under the Hardial Singh principles. I shall therefore start by examining in greater detail the evidence, nature and reasons for the change of mind about the Claimant's nationality.
  12. Evidence about nationality

  13. When the Claimant first arrived in the UK he claimed asylum, and as usual an asylum screening interview was conducted. This took place on 2 March 2005 and was conducted in Kurdish Sorani, the language and dialect with which the Claimant was most comfortable. He gave details of where he came from in Iran, naming Bewran village near Sardasht. He lived with his father, mother and one sister. His family were farmers, growing watermelon and fruit. Their religion was Sunni Muslim. He did not attend school or do military service. He did not speak Farsi. The basis of his claim for asylum was that he said he was involved with the Komala Party, which was in opposition to the Iranian government. He delivered books and other materials.
  14. His asylum claim was refused in a decision letter dated 4 March 2005. It was not accepted that the Claimant was Iranian, because he did not speak Farsi and did not undergo military service. It was also not accepted that he had been involved with the Komala Party.
  15. The Claimant appealed against this decision, and his appeal was heard by the Asylum and Immigration Tribunal on 22 April 2005. The Claimant did not attend the hearing, which proceeded in his absence. The determination was promulgated on 8 May 2005. The Immigration Judge first considered the Claimant's nationality, and the Defendant's challenge to his claim to be Iranian. Basing himself on the Country Assessment Report, the Judge noted that Farsi was spoken by about 50% of the population, and that primary education was compulsory and free but not fully implemented in rural areas. In those circumstances, he said, "I am prepared to accept that the Appellant is an Iranian national". He then went on to reject the appeal because the Claimant's account of involvement with the Komala Party was incredible.
  16. When the issue of nationality arose again in connection with the deportation order, a tribunal was again involved. By this time it was the First-tier Tribunal which heard the Claimant's appeal against the order and promulgated its decision on 19 March 2015. He was legally represented and gave evidence. The facts of his core account in evidence were the same as were before the Immigration Judge in 2005. The conclusion that the Claimant is Iranian was not in contention in 2015. On the matters which were in issue, the First-tier Tribunal found the Claimant's account of events to be a completely fabricated one, and his appeal was dismissed. He became appeal rights exhausted on 2 April 2015.
  17. On 28 May 2015 the Claimant attended a face to face interview at the Iranian Embassy. There is no record of what was said, but equally there is no suggestion that the Embassy rejected his nationality claim. Instead he was given the "normal advice" that they would not issue an ETD unless they have seen some proof of identity. The conclusion of the Assistant Country Manager in Immigration Enforcement in an email on 29 June 2015 was that "we will be unable to progress this any further unless/until Mr Q obtains documents confirming his identity".
  18. It was suggested that the Claimant be seen in person or by video interview to convey this message. On 9 July 2015 the Claimant provided a general application form to the Prison Service responsible for his detention in which he said "I don't have any contact with my family in Iran since 2005. I have no paperwork proving I am from Iran. Please help me". On 16 July 2015 the Claimant was seen by Arman Mohajeri, a Criminal Case Owner in Immigration Enforcement and, it appears, someone who was an Iran expert and a Farsi speaker. Her note on the GCID records says:
  19. "Spoken to Mr Qarani in Farsi. He understood and held the conversation in Farsi with the Kurdish accent. His birth certificate is in Iran with parents in his village Behram, Sarvdasht. He could not continue much in Farsi as he claimed he has forgotten and the conversation turned in to English. I asked him to contact his family for his ID to be sent. He said he has no telephone number nor address. He said he lives in a village and does not know where his family are."
  20. Soon thereafter come the first renewed doubts about the Claimant's nationality. The starting point is on 20 July 2015 with a note on the GCID records that prior to his conviction the Claimant was residing with an Iraqi national (the Claimant says he was also a Kurd, which may be true). A decision was made to investigate his contacts more thoroughly. On 12 August 2015 a note says that an application form has been received stating that his "family have 'recently migrated' to Iraq and will send him a travel document". The original of that application is not now available.
  21. Then on 20 August 2015 there is the first of a series of telephone conversations with people whose details were recorded in the contacts on the Claimant's mobile phone. These details were obtained when the Claimant agreed to an officer examining his phone. None of the phone calls which took place were disclosed to the Claimant until these proceedings started, and this is the basis of Ground 2C, which I shall consider separately later.
  22. On 20 August 2015 four people were contacted by telephone. Three were friends who said they believed the Claimant was an Iranian Kurd [including Contact 1]. The fourth [Contact 2] claimed to be a friend to whom the Claimant admitted lying about being from Iran, who said he was in fact from Quoya in Iraq. He claimed to know the Claimant's family, said they were in Quoya, and agreed to try and obtain identity documents for the Claimant from them.
  23. On 24 August 2015 a further application form from the Claimant stated that he could not locate his family to contact them. He apparently stated that he would only cooperate for one month, and after this he would not wish to be deported. Again the original form is missing, so the full context cannot be checked. It should be noted that by this date the Claimant had been in immigration detention for over a year, so it may not be surprising that his patience was wearing thin.
  24. On 27 August 2015 there was a further conversation with one of the Claimant's friends who said he was Iranian, but who had volunteered to find out more about his family [Contact 1]. She said that she believed they lived in Iraq, in an area called Democrat, mainly populated by Iranians. She had visited the area and asked around, but everyone said the family had left the area.
  25. On 15 September 2015 there was a further telephone conversation with the only contact who said the Claimant was Iraqi [Contact 2]. He refused to provide the Defendant with any documents, but gave the phone number of someone said to be the Claimant's sister. That person was telephoned and said she was a relative who lives in the same village as the Claimant's family. A further telephone call to her with an interpreter took place on 14 October 2015. She again denied being the Claimant's sister, so a further phone call was made to the man who provided her details [Contact 2], who insisted that she was the Claimant's sister. He went on to say that he had spoken to another friend who confirmed that the Claimant is Iraqi and from Quoya.
  26. On 15 November 2015 the 17th Detention Review records the Claimant's nationality as from Iran, and concludes with the comments:
  27. "The only barrier to removal is the ETD. Mr Qarani claims he wishes to return but we are no further forward with the ETD. I note the previous comments and we are in the process of securing suitable accommodation should we obtain authorisation for release. At this stage detention is appropriate, can we also put this case before the Iran/Iraq taskforce and see if there is anything further we can do to obtain any documents or confirmation of identity that will assist in the process."
  28. Then on 20 November 2015 there is an entry in the GCID records from Arman Mohajeri saying that she had spoken again to the Claimant and "he does not speak any Farsi at all". As a result she told him he was an Iraqi. An email the same day from Ms Mohajeri says that she has changed his nationality on CID and asks for a letter to be sent to him "notifying of this change with emphasis on him deceiving the authorities and that the detention has been of his own choice of dishonesty, etc etc…". The next Detention Review, on 11 December 2015, shows the Claimant's nationality as Iraqi.
  29. In order to discover whether this change amounts to a decision which is amenable to judicial review or, as the Defendant submits, merely an internal change of emphasis, converting the search for a way to deport the Claimant to a two-pronged approach, with the primary working hypothesis that he was in fact Iraqi but keeping in mind the possibility that he could be Iranian, it is necessary to see how matters proceeded thereafter.
  30. The first step was a request to arrange an interview with the Claimant about his nationality. On 19 January 2016 an Iranian nationality interview took place. The handwritten record is not signed by the Claimant, and does not appear to have been shown to him to confirm its accuracy. In that interview appear the following relevant matters:
  31. i) He again confirmed that his home village was Bewran, with the nearest city being Sardasht.

    ii) He was shown a map of Iran and said he could not draw where either of those places were, nor where Tehran was (although I am bound to say that the outline map shown to him looks extremely confusing, at least to a non-Iranian).

    iii) He appears to have known the name of the Iranian identity card (although it is written in the record as "INSAUNAZNMA (something like this)" whereas the current Country Guidance spells it "SHENASNAMEH"). He did not know when it was issued, but said he had an ID card, and a new photo was put on top of the old one every 4 years.

    iv) He was asked to write the months of the year in Farsi, but replied that he didn't use Farsi (at a later stage this was reported as an inability to name the months of the Persian calendar, a gloss which does not seem to be justified by the handwritten record).

    v) He said he did not use the calendar, relying on the mosque for prayer time and when Ramadan occurred.

  32. Much later, on 28 October 2016, this interview was written up in a Nationality Statement by a different Immigration Officer. He concluded that the Claimant was not Iranian because he could not name the months of the Persian calendar (an erroneous reading of the interview record), and because he was not too familiar with the pronunciation of the Iranian identity card nor when it was issued. In addition he had "no geographical knowledge of the area he claims to come from" (a conclusion not justified by his failure to point to it on a somewhat confusing outline map) and speaks very little Farsi. This officer claims that all Iranians, including the Kurdish minority, "are conversant in Farsi as this is Iran's official language". This assertion is in conflict with the findings of the Asylum Immigration Tribunal in May 2005 and is not supported by any witness statement. It follows, in my judgment, that very little weight can be given to this document where it conflicts with other material.
  33. Following the Iranian nationality interview in January 2016 an Iraqi nationality interview appears to have been scheduled for 23 March 2016. The Claimant was willing to attend but it did not take place for reasons which are not documented. The following day the Claimant was asking why it had not taken place.
  34. Thereafter no positive steps to determine nationality appear to have been taken. The monthly Detention Reviews reveal that requests for a further Iraqi nationality interview were made on 29 March and 24 May 2016, and these were chased on a four weekly basis, on 22 June, 20 July and 17 August 2016. On 24 September 2016 the interview appointment was still awaited. Thereafter it seems to have gone off the radar.
  35. The Defendant in submissions pointed me to two other factors, which I discount for the following reasons:
  36. i) The Claimant's name is not typically Iranian, nor in the Iranian format. This observation was made as early as April 2014, and did not prevent the concession at the First-tier Tribunal in March 2015 that he was Iranian. Nor does it seem to have figured significantly in the change of mind in November 2015. The Claimant's answer is that it is a name which is typical of the Kurdish community into which he was born.

    ii) The Claimant's Offender Supervisor in Maidstone Prison did not consider he was telling the truth about his nationality. The GCID entry for 11 May 2015 which is relied upon to justify this cites correspondence with HMP Maidstone, which has not been disclosed. The best available source seems to be the OASyS Assessment of 8 May 2015 which records a conversation between the Offender Supervisor and the Home Office based at HMP Maidstone in which it is the Home Office official who informed the Offender Supervisor that he believed the Claimant was "not being truthful about his nationality". This may show the earliest date by which Home Office doubts resurfaced, but it does not provide any evidence independent of the Home Office to support those doubts.

    Ground 1

  37. The first issue under Ground 1 is whether the change of mind first set out clearly on 20 November 2015 amounts to a decision which is amenable to judicial review. In my judgment the chronology clearly shows that it was the culmination of a gradual process of increasing doubts in respect of which the telephone calls in August 2015 were particularly material. Although the conclusion on 20 November 2015 led to a visible change, in that all Detention Reviews thereafter, as well as the Monthly Progress Reports to Detainees, showed the Claimant as a national of Iraq, the investigation of the alternative claimed Iranian nationality continued with the interview on 19 January 2016.
  38. Such a change of emphasis in my judgment showed the sort of continuous and circumspect assessment which is to be expected, especially where the subject has been disbelieved in his evidence by a jury and by a specialist tribunal. It is not a case where an official has sat down on a particular day, looked at all the evidence, made a decision and put the file away. Such decisions at a particular point in time are in complete contrast to a continuous assessment process. Such decisions require reasons and are amenable to judicial review. This change bears none of the hallmarks of such a decision, and in my judgment is not one which is amenable to judicial review.
  39. If I am wrong about that I accept that the decision could not stand, both because no sufficient reasons were given at the time, and because a firm conclusion of that sort, to the exclusion of the alternative, was not justified by the material then available and would have been irrational. I would have come to the conclusion that such a firm decision would have been irrational for the following short reasons:
  40. i) Given the Country Guidance about language set out in the 2005 AIT decision, it would have been irrational to rely on the limited ability to speak Farsi without explanation. It was submitted to me on behalf of the Claimant that the Asylum and Immigration Tribunal decision was subject to the principle in R v Secretary of State for the Home Department, ex parte Danaei [1998] INLR 124. I would have rejected that submission on two grounds. First, the 'finding' of the Immigration Judge was in fact a presumption in favour of the Claimant in circumstances where the evidence did not exist to make an adverse finding. It was not a positive finding of fact after hearing full evidence. And secondly, it would be covered by the third exception to the principle, where the adjudicator has decided the appeal purely on the documents. In the circumstances of this case, given the way in which the finding is expressed, I would not consider it as sufficient to bind the Defendant. However, no evidence or explanation was provided to show why the Country Guidance in 2005 (which is after all when the Claimant had left Iran, if he had) was not relevant or accurate.

    ii) The criticisms of the Claimant in relation to the Persian calendar and Iranian identity documents carry limited weight, and would have to be set against his accurate answers in respect of other matters relating to Iran. His inability to point to his village on a blank outline map is in my judgment of little significance.

    iii) The issues about the Claimant's credibility mean only that he may be untruthful, not that he must be untruthful.

    iv) The telephone calls to friends are equivocal, and the assertion by one of four that the Claimant is Iraqi does no more than to raise doubts.

    v) I accept the Defendant's submission that the cumulative effect of all the matters is important, but it goes no further than to justify the adoption of a two-pronged investigation, which is what I have found was in fact intended.

    vi) In any event, the GCID note and email of 20 November 2015 gives no other reason for the change than the assertion that the Claimant does not speak Farsi.

    Ground 2A – the Hardial Singh principles

  41. The Hardial Singh principles are well known and not in dispute. The formulation in I v SSHD [2002] EWCA Civ 888 at paragraph [46] is usually adopted as a starting point.
  42. i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

    ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

    iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

    iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.

  43. Principle (i) is not in dispute here. The Claimant argues for a breach of each of the other three principles. The principles are distinct, and breach of any one is sufficient to render the detention unlawful.
  44. The concept of a "reasonable period" in relation to Principles (ii) and (iii) is very fact-sensitive and fact-specific, and will be affected by factors such as the Claimant's compliance with the process of removal, together with an assessment of his risk of absconding and the risk of his causing further harm by further offending. I will need to consider those matters in relation to the challenge under those two Principles.
  45. Hardial Singh Principle (iv)

  46. In relation to Principle (iv), whatever those additional factors may be, the Secretary of State is under a duty to act with reasonable diligence and expedition. An example of where failure to do so makes a portion of detention unlawful, even for a Claimant posing very serious risks, is Saleh v SSHD [2013] EWCA Civ 1378. I bear in mind the caveat of Carnwath LJ in Krasniqi v SSHD [2011] EWCA Civ 1549 at paragraph [12] that:
  47. "To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained."
  48. In the present case what is particularly striking is the almost total lack of activity after the Iranian nationality interview on 19 January 2016. It was commented on by John Howell QC, sitting as a Deputy High Court Judge, when granting permission on 30 November 2016 (see paragraph [16]). I raised it at the start of the hearing before me, and pointed out to counsel for the Defendant that she would need to point me to evidence showing what had been done in that time. There is no such evidence beyond what I have set out above.
  49. My attention has been drawn to the judgment of HHJ Blair QC, sitting as a Deputy High Court Judge, in Musa Mohammed v SSHD [2016] EWHC 406 (Admin) where he said at paragraph [27]:
  50. "It is easy in retrospect to complain about some part of a complex process and suggest that the Department could and should have acted more swiftly. We do not know of all the constraints upon her, or what may have frustrated the endeavours of her officers when delays were occasioned."

    I make no comment on the decision in that case, but for the Defendant to use this comment to justify an extended period of apparent inactivity without producing any evidence of what was being done, or why nothing could be done, is contrary to established authority. It can only properly be viewed as another way of putting what Carnwath LJ said in Krasniqi.

  51. In the present case, by 20 November 2015 the Claimant had been in immigration detention for 16 months. If there was to be a change of tack, it was all the more important to get on with it. Whether the Claimant was to be returned to Iran or Iraq, an ETD was required before he could be put on a plane. That step, at least in relation to Iraq, was likely to take some months even if there were identity documents. The prospect of obtaining an ETD for return to Iraq, and I would imagine also to Iran, without any identity documents would be very speculative indeed.
  52. In my judgment nationality interviews for both Iran and Iraq (if they were to be carried out separately) should have been arranged by January 2016. The failure to arrange one for Iraq until March 2016, and when it was cancelled the failure to arrange another one at any time, went far beyond mere administrative failing and, in the absence of explanation, must be taken to have been so unreasonable as to be unlawful.
  53. I note that the Detailed Grounds of Defence state in paragraph 49 that "the relevance of an Iraqi nationality interview is limited as the Claimant is denying that he is Iraqi, and, on a hypothetical level, it is unlikely he would have given answers consistent with his being an Iraqi". If that is correct it was even more unreasonable for nothing to have been done after the January 2016 interview.
  54. I note also that at a very late stage, in her response to the pre-action protocol letter, the Defendant suggested that the Claimant should contact the Iranian authorities to obtain a birth certificate. This was done promptly thereafter, but the result is that nothing will be provided without some documentary evidence, which of course is not available.
  55. I shall therefore grant a declaration that the Claimant has been unlawfully detained for a period of 11 months, from January 2016 to his release in December 2016
  56. Hardial Singh Principle (ii)

  57. Although my finding above is sufficient to dispose of this claim, I should go on to consider the other grounds on which it is brought, in case I am found to have been wrong in my initial conclusion. I deal first with the additional and balancing factors of compliance, risk of absconding and risk of further offending.
  58. The Defendant points to the Claimant's lack of credibility, as evidenced by his conviction by a jury who must have rejected his evidence, and the findings of the Asylum and Immigration Tribunal in May 2005 and the First-tier Tribunal in March 2015. It is against that background that I am invited to consider the inconsistent account of contact with his family, as set out above. Added to that is his statement in August 2015 that he would only cooperate for a month, and on 24 December 2015 that he did not want to go back to Iran. This, the Defendant submits, amounts to significant non-compliance which will extend the "reasonable period".
  59. Against this must be set the fact that the Claimant never refused to be interviewed, and never refused to answer a question. In March 2016, when the Iraqi nationality interview was cancelled, he immediately questioned this and said he had been willing to attend, despite the fact that he still maintained he was Iranian.
  60. In my judgment there is no evidence of significant non-compliance. The real difficulty which existed throughout is that the Claimant had no identity document, and had had no contact with his family for 10 years. There is nothing in the evidence to show that either of these matters was false, or that his lack of documentation was a deliberate ploy to avoid removal.
  61. I turn to consider the risk of absconding. This is accepted as a relevant feature because absconding would defeat the purpose of deportation. The Claimant had disappeared off the radar for significant periods between 2005 and 2010, and the result was that he was not removed but eventually granted indefinite leave to remain. From one viewpoint, therefore, absconding had proved a successful pattern of behaviour in the past and past behaviour is often the best predictor of future conduct. I bear in mind the explanation given by the Claimant that he was homeless, but there is no suggestion that he tried to report elsewhere, and he was quite capable of obtaining advice and representation to make a fresh asylum claim in 2008 when he started to report again. In addition, he has no particular link with any part of the UK and little to tie him to remaining in any one place.
  62. I bear in mind the Claimant's submissions that he was not considered to be an absconding risk in the OASyS reports from October 2014, and also that the risk would be reduced by the involvement of MAPPA and the sex offender notification requirements. Nevertheless, in this case in my judgment the risk of absconding was a real and serious one.
  63. Next there is the risk of further offending. It is accepted that this is a relevant factor, for the reasons set out in Lumba v SSHD [2011] UKSC 12, at paragraphs [106] to [110]. The strength of this factor will depend on the magnitude of the risk, including the likelihood of further offending and the potential gravity of the consequences. This Claimant was convicted of a specified offence under Schedule 15 of the Criminal Justice Act 2003. As a result the Crown Court when sentencing him had to consider whether he was 'dangerous' as defined by that Act, that is whether there was a significant risk that he would commit further specified offences and by doing so cause serious physical or psychological harm to one or more people. If so, a finding of dangerousness would have been made (which was not), and the Claimant could have been made the subject of an extended sentence (he was not). It follows that, without some further evidence, it would not be proper to assess the risk of reoffending posed by the Claimant to be as high as this. Of course, there may be a risk of re-offending which is relevant to immigration detention without being sufficient for a finding of dangerousness under the 2003 Act. Schedule 15 applies only to specified violent and sexual offences. But in the field of sexual offences it is not easy to see how any significant risk of further such offending, particularly the kind of offence committed by this Claimant, would not inevitably lead to such a finding of dangerousness. It hardly needs to be said that immigration detention could not properly be used to supplement the appropriate custodial period imposed by a Crown Court which had not thought an extended sentence to be necessary (and the Defendant does not make any such submission).
  64. The OASyS assessment of the Claimant at the material time, from November 2015 to December 2016, is shown most conveniently in the monthly Detention Reviews. The risk of re-offending is shown as medium, with the risk of harm as high. I therefore accept that there was a risk of re-offending, but this should not be overstated.
  65. Although all these matters are relevant to the assessment of the "reasonable period", they do not, either individually or cumulatively, amount to a trump card justifying indefinite detention. I drew the attention of the Defendant's counsel to the analysis in Sino v SSHD [2011] EWHC 2249 (Admin) at paragraph [56], and she expressly accepted that it applied to these additional factors. Thus the Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who (unlike this Claimant) is deliberately seeking to sabotage any efforts to deport him.
  66. The assessment of what is a "reasonable period" is a matter of judgment in the individual case. It cannot be fixed mathematically at the start of detention, or perhaps at any stage until the end is close. It will depend on a continuous assessment of the relevant factors, and what they are and the weight which should be attached to each will change from time to time. I bear in mind the guidance in MH v SSHD [2010] EWCA Civ 1112, at paragraph [65], that:
  67. "There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors."
  68. Broadly speaking, I accept the submission on behalf of the Claimant that a good measure of the "reasonable period" here is the length of the licence period following the end of the custodial term of his sentence. He was sentenced to 4 years imprisonment, and was eligible for release on licence on 26 July 2014. That licence ran until the end of the whole period of imprisonment, that is to 26 July 2016.
  69. That broad assessment might have changed if there had been progress during 2016. Suppose, for example, that soon after January 2016 identity documents had been obtained by whatever means which confirmed the Claimant as having Iranian (or Iraqi) nationality. Those would have been provided to the relevant embassy for an ETD to be issued. Suppose that on 26 July 2016 the ETD had still not been issued, but experience from other cases suggested that it could be expected within weeks. In such circumstances no doubt the continuous assessment of the "reasonable period" would have led to the conclusion that it should be extended for those few weeks. But that is not the position here, nor ever was likely given the inactivity.
  70. It follows that under Principle (ii) alone I would have held that detention for the 5 months from July to December 2016 was unlawful.
  71. Hardial Singh Principle (iii)

  72. In November 2015 it might well have been thought that there were reasonable prospects of removing the Claimant before the end of July 2016. To have such prospects, however, on the evidence available to me, would have required the obtaining of identity documents, whether Iranian or Iraqi. Even then there would have been a delay of some months before an ETD was forthcoming. Without identity documents, as noted in the email of 29 June 2015 referred to above, the Defendant would be "unable to progress this any further". The date of this email clearly means that it refers to the prospect of removal to Iran. As to Iraq, the GCID notes for 30 December 2016 record that the timescale for obtaining an ETD is 1-6 months with original or copy evidence, and with no evidence there is no timescale.
  73. In practice that meant that expedition was required, particularly because of the time which had already elapsed. The Iran nationality interview in January 2016 provided no grounds for hoping that identity documents could be obtained in the immediate future or at all. I can see no evidence of any further plan after that interview took place. For that reason there cannot have been any reasonable ground to believe that the Claimant could be deported to any country within the "reasonable period". The monthly Detention Reviews assess the expectation of an ETD as 6+ months consistently from November 2015 to 15 December 2016.
  74. In my judgment it should have been apparent by the end of January 2016 that the Defendant would not be able to effect deportation before the expiry of the "reasonable period". Following Principle (iii) the Claimant should then have been released from detention.
  75. Ground 2C

  76. Ground 2C relates to the non-disclosure of telephone calls with the Claimant's mobile phone contacts and the other reasons set out in the Nationality Statement of 28 October 2016. It adds little to the claim, the Claimant's counsel agreed that it was parasitic, and in view of my findings so far it becomes academic. I shall deal with the principal issues raised quite shortly.
  77. As to the telephone calls, in my judgment it is not an answer to say that the Claimant must have realised that by giving access to his mobile phone it was likely, if not inevitable, that his contacts would be spoken to. That would not put him on notice of what was being said which was treated as credible. It would not allow him to challenge the credibility of that information, or to put it in context.
  78. It may be that some redaction would have been required to protect the identity of some informants, but in my judgment the Claimant was entitled to disclosure of the gist of the calls in terms of their content, not just the fact that they had been made.
  79. Given my findings already, it is difficult to see that this failure is anything but academic. The Claimant's submission is that disclosure in or about August 2015 would have enabled him to challenge his detention earlier than he did, and potentially therefore to have been released on bail earlier. It is difficult to be precise about such a speculative scenario, but clearly the first step in answer to such disclosure would have been to challenge it by a statement in some form. Legal action, even in the form of a pre-action protocol letter, would not have been immediate. Even then it is difficult to see how the Claimant could have been successful in such action. In the light of what was being said, even only by one contact, the Defendant was clearly entitled to investigate the possibility that he was in fact Iraqi. At best, such action, or threatened action, would have served only to induce proper diligence and expedition. But even that would not have produced nationality interviews significantly earlier than mid-January, nor would release on any basis have come any earlier than the end of that month.
  80. As to the further reasons set out in the Nationality Statement, there is no evidence that these had been crystallised in this way prior to the production of that document. They first came to light in the Defendant's response dated 10 November 2016 to the pre-action protocol letter and the Summary Grounds of Defence dated 24 November 2016. The Nationality Statement was written up by a different Immigration Officer, and bears all the hallmarks of a later production under pressure of litigation. The delay, therefore, was in reaching the conclusions, not in disclosing them.
  81. Accordingly it seems to me that this Ground is purely academic, and I should decline to grant even declaratory relief in respect of it.
  82. Ground 3

  83. Ground 3 relates to the delay in identifying and offering suitable accommodation following the applications under section 4 of the 1999 Act. The working of that section, and the procedures operated by the Defendant, have very recently been considered in detail in Sathanantham v SSHD [2016] 4 WLR 128 and I need not repeat them here. I bear the conclusions of Edis J in that case in mind in considering this Ground.
  84. Section 4 applications were made by this Claimant on 17 April 2015, 21 September 2015, 15 February 2016, 13 July 2016 and 1 August 2016. I need not trace the progress (or lack of progress) on each. Instead of making any complaint, or taking judicial review proceedings to challenge the failure to make any determination, the Claimant simply made a further application each time, and in general stated each time that he had not made any previous application.
  85. I need not take time over this Ground, not only because my findings so far make it academic, but also because counsel for the Defendant made clear her primary submission was that the non-availability of accommodation would not have prolonged the detention period. No doubt this is because the end of lawful detention would not arrive unannounced. Proper consideration would disclose some weeks in advance that the time was approaching when detention could no longer be justified, either on Principle (ii) because the "reasonable period" was coming to an end, or on Principle (iii) because the prospects of removal within that time were becoming increasingly remote. There is evidence of this approach, albeit rather too late, in the Detention Review comments on 27 May 2016 and 14 October 2016.
  86. During that warning period there would have been time to find and check the suitability of accommodation so that no further delay was caused to the Claimant. It was only because this court was involved in granting bail in principle on 30 November 2016, contrary to the submissions of the Defendant, that there was further delay prior to release on 21 December 2016.
  87. If I were wrong about my conclusions on Ground 2A, then my provisional view is that there would be a short period of unlawful detention because of the Defendant's failure to take proper action on the section 4 applications. Since this only becomes relevant if the continued detention is found to be lawful under Hardial Singh principles, the early applications must be irrelevant. I therefore only consider in any detail the final application made on 1 August 2016.
  88. There was a bail hearing before a First-tier Tribunal Judge on 10 August 2016. Bail was refused, and it was noted that there was no bail address, so no bail could be granted. It is not clear from this that a positive decision had been made that bail would have been appropriate if a suitable address had been available. The President of the First-tier Tribunal issued a Guidance Note on 11 June 2012 for Judges dealing with bail applications. Annex 4 deals with section 4 accommodation. It sets out a new procedure whereby the Home Office agreed to provide an address to which the applicant can be released and at which he can reside for at least 48 hours. If bail is granted, the Secretary of State will then make arrangements for more permanent accommodation. It follows that the First-tier Tribunal Judge should have been provided with such information to enable him to grant bail if it was considered appropriate.
  89. If I am right in relation to Ground 2A, the Claimant should have been released on bail before this date in any event, so the failure to deal properly with the application for section 4 accommodation is purely academic. If I am wrong about Ground 2A, even at this date, then bail should not have been granted in any event.
  90. I should note that the Defendant sought to justify the whole period of delay between the final bail application on 1 August 2016 and the eventual release date of 21 December 2016 as reasonable. I reject that. The idea that it could be reasonable to take two and a half months to discover that there was no need for probation involvement, as by then the Claimant's licence had expired, is ludicrous. To suggest that it would then take a further two months to find suitable accommodation, even for a registered sex offender, is untenable without detailed evidence of the steps taken.
  91. The only point at which Ground 3 could be material, it seems to me, is when bail was approved in principle in this court on 30 November 2016, and yet no accommodation was provided to allow the Claimant's actual release until 21 December 2016. In my judgment that delay was too long. The involvement of MAPPA and the residence notification requirements for sex offenders may have delayed the matter beyond the normal 48 hours, but 7 days should have been sufficient to cover that. I note that this period was included in my judgment in Saleh, and upheld.
  92. For these short reasons Ground 3 is properly raised, but is now academic, and I decline to grant a declaration or any relief in respect of it.
  93. Conclusion

  94. I therefore declare that the Claimant was unlawfully detained for a period of 11 months between January and December 2016. Damages, if not agreed, will need to be assessed in the Queen's Bench Division.
  95. I shall leave the parties to seek to agree an order dealing with this and any consequential orders relating to the Claimant's bail position and costs.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/507.html