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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mulliqi, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2852 (Admin) (18 October 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/2852.html Cite as: [2012] EWHC 2852 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF LADI MULLIQI |
Claimant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Kate Olley (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 15 May 2012
____________________
Crown Copyright ©
Mr Justice Irwin:
The Facts
The Decisions to Detain
"Removal to KOS on scheduled NOT authorised; we need supporting evidence in order to refer the subject to KOS for approval……If there is no supporting evidence then the sub may well not be KOS."
"Subject claims to have dyslexia and found it extremely difficult to read and write. This caused problems when completing his Bio Data. Sub claims that his mother, father and brother were murdered in Kosovo when he was 14 years old and he has no other family apart from a younger sister there. He has a foster mother here in the UK [name, address, postcode and phone number given] with whom he claims to have regular contact."
"It is hoped removal directions will be set imminently."
"Originally removal directions were requested to Kosovo. However removal directions were set to Albania. On the day of removal, 9 September 2010 and given contact from his representative on 8 September 2010 requesting why his client was being removed to Albania (I was absent on this date) I attempted to establish on what information the decision was taken to remove to Albania as I had not been copied into the discussions which took place. From emails it transpired that a member of ReSCU had decided that there was insufficient evidence for removal to Kosovo and that Mr Mulliqi may be an Albanian (it is noted on file that Mr Mulliqi was an ethnic Albanian from Kosovo) further evidence was added to this as a member of staff at Brook House IRC received a letter from another detainee informing them that Mr Mulliqi was in fact Albanian. I have not yet gained sight of this letter and when I spoke to Brook House IRC the letter could not be located on his file. In an email dated 31 August 2010 rescue advised CCD Ops that if a new EU letter could be created showing Albania then removal to Albania would be authorised. Removal directions were set for Albania. The removal proceeded to the stage where Mr Mulliqi was sat in a van with his escorts awaiting removal to Albania. However it came to light that the EU letter was not re-created (sic) to show Albania and therefore the removal was cancelled on the grounds that the Albanian authorities would not have accepted Mr Mulliqi back. I was however informed that Mr Mulliqi did want to return and was not resisting removal……. As previously stated above Mr Mulliqi's nationality was being disputed and will need to be established before removal directions can be set again…….Mr Mulliqi is removable on an EU letter but given the previous failed removal there is some ambiguity over his country of origin and he will need to be interviewed with regard to this. This will be actioned as soon as possible and it is felt removal can be achieved in a reasonable timescale."
"Therefore further checks need to be made to provide further evidence he is from Kosovo."
"He stated that he was a Kosovan having been born in Kosovo (Mitrovice). He stated that he left Kosovo aged 12 and fled to Albania with his sister and friend. He remembers very little of his life in Kosovo. He added his sister Diata Mulliqi remained in Italy while he travelled to the UK. He claims to have no supporting evidence of his identity or nationality as, when he returned to his home, the house was on fire and he fled. Spoke with the IO interviewing and she was of the impression Mr Mulliqi did not want to be removed. He certainly did not want to be removed to Kosovo and, if he had to be removed, his preference was to Albania…………Mr Mulliqi is removable on an EU letter, but given the previous failed removal, the case will need to be referred for advice to assess whether removal could be set given the lack of supporting evidence and also advice on how more supporting evidence can be gained."
There was at that stage an outstanding judicial review challenge to removal. He was further detained.
"Require confirmation of Mr Mulliqi's nationality but unfortunately there is no current supporting evidence provided by Mr Mulliqi to conclusively confirm his nationality."
The decision to maintain detention was taken on this occasion by a senior official, whose observations read as follows:
"I agree with the proposal to maintain detention. The nature of offence outweighs any presumption of liberty. I am concerned that this man's removal has been scuppered by ReSCU. Please ensure we establish a plan to progress this case with CTU tomorrow."
"and upon [The Secretary of State] carrying out further investigations as to the Claimant's nationality and agreeing not to set removal directions until those enquiries are complete."
"The applicant's record of convictions, and findings in the determination of his deportation appeal, support the assessment in the PSR that he poses a medium risk of serious harm to the general public through means of violence and physical injury, and a medium risk of being convicted within 12 months of release.
…..
The panel who determined his deportation appeal were satisfied that he has relatives in Kosovo. He could obtain evidence to help establish his Kosovan nationality. I am satisfied that he has not provided all the assistance he could provide towards establishing his nationality so that a travel document can be obtained. He is partly responsible for the length of this detention…."
"……..reiterated he was Albanian speaking and from the town of Mitrovice (Kosovo) no supporting evidence submitted."
"potential further avenues to explore identified. First action is to obtain the foster parents phone number from the file and then contact them to attempt to establish further information about his nationality."
It is therefore clear that although the foster parents' full contact details had been known since March 2010, no one had attempted to make any contact with them up to and including December 2010. The decision to maintain detention following these meetings was in the first week of January 2011. An official with the initials WFN wrote on 4 January:
"I have checked and agree with the proposal to detain. Mr M has failed to provide evidence about his identity and nationality. It is unlikely he could comply with any reporting conditions…….The onus is on him to leave the UK. Hence, he has prolonged his detention by not leaving the UK. Once we have established his nationality, his removal will be enforced. He was convicted of robberies. If he was to re-offend, the harm to the public would be serious. The nature of his offences outweigh any presumption of liberty."
"I agree that the risk of harm based on the nature of the offence and the risk of absconding based onimmigration
history and the current lack of evidence of identity outweigh the presumption of liberty. We should follow up the suggestion made by IDT for obtaining further evidence."
This last is presumably a reference to the suggestion made on 14 December that someone should contact the foster parents.
"With the assistance of a Kosovan interpreter via telephone. From speaking with [an official] and from the information from the interpreter they have doubts that he is indeed a Kosovan national as claimed. As such and as advised by HMI on 25 January 2011 a further nationality interview has been requested with a specific interviewer and a dual Kosovan and Albanian speaking interpreter."
"A DO has been served and the remaining barrier to removal is an ETD. [Emergency Travel Document]. Mulliqi has thwarted a removal to Albania, by claiming to be Kosovan. Mulliqi has been interviewed [by another official] who has doubts as to his nationality. A further interview has been requested to clarify if Mulliqi is Kosovan or Albanian. The case was also discussed with IDT who have recommended an approach to HMRC to obtain details of his foster parents address."
"I agree. Mr Mulliqi has been convicted of a serious violent offence and has a previous conviction. He has been non-compliant with efforts to remove him and there is a strong suggestion that he is attempting to deceive us over his true nationality. These factors indicate a risk of further harm to the public and of absconding and these factors outweigh the presumption in favour of liberty."
"Enquires are continuing and numerous attempts have been made to contact Mr Mulliqi's foster parents, but at this time I have been unable to speak with them. ……….A further nationality interview is planned ………Mr Mulliqi is removable on an EU letter but, given the previous failed removal and doubts over his nationality, it has been necessary for further enquiries to take place to substantiate his nationality before removal directions are re-set.
Proposal
Mr Mulliqi has a clear disregard for UKimmigration
law having failed to regularize his stay in the UK…….."
An SEO reviewed and authorised his continued detention on 2 March with the brief comment:
"I have checked and agreed with the proposal to maintain detention. The nature of offending outweighs any presumption of liberty."
"Mr Mulliqi arrived in the UK on 1 June 2000 illegally as an unaccompanied minor and claimedasylum
. His
asylum
application was refused on 23 January 2001, however because he was a minor, he was granted exceptional leave to remain until 15 December 2002, his 18th birthday. He overstayed this leave and finally submitted an application for further leave on 12 September 2003 which was refused. On 12 May 2009 Mr Mulliqi was encountered by police and arrested. On 13 May 2009 he was served with an IS151A notice as an overstayer".
The criticism is that this history completely omits the fact that it took 5½ years for the Borders Agency to respond to the belated application for further leave to remain and that, the Secretary of State gave the impression through the history submitted that the Claimant disappeared for 6 years after his application for further leave was refused.
"If it remains not possible to contact the foster parents, consideration is being given to send police officers around to their property."
"Following the interview, the interpreter was of the opinion that [the Claimant] was an Albanian national and that he knew little about Kosovo. Furthermore if he was in Kosovo as he states, there is no possibility that he would not have attended school as all children attend school from primary onwards. Also it is highly likely to have extended family (sic) and would have regular contact with them and his surname is not a Kosovan name."
"as in previous months it has not been possible to contact Mr Mulliqi's foster parents. Given this a request was sent to the local police and it is hoped they can visit the foster parents and interview them to see if they have any documents in their possession that can assist us."
Further meetings took place on 2 June and 14 June to consider the case. CSIT requested a spreadsheet to be completed with regard to "all references on file relating to his identity." They also requested visitor and phone records during the period when the Claimant was in prison. Further detention was approved on 20 June 2011.
" "there is contradictory information provided in the original SEF in comparison to the Bio Data and discrepancies between parent and sibling names. The family names provided are very much solely Albanian names and subject to claims he cannot remember his address in Kosovo. This all gives cause to indicate the subject is Albanian. I suggest that the subject get a nationality interview done which be done very specific to where he claims he is from.(sic)"
A further nationality interview was booked.
"The Panel who determined his deportation appeal were satisfied that he has relatives in Kosovo. He could obtain evidence to help establish his Kosovan nationality. I am satisfied that he has not provided all the assistance he could provide towards establishing his nationality so that a travel document can be obtained. He is partly responsible for the length of his detention. His history satisfies me that if granted bail he is likely to commit further offences and to abscond to avoid deportation."
"A DO has been served, and the remaining barrier to removal is an ETD. The case worker has been working closely with our CSIT colleagues to establish nationality and procure an ETD. He has continued to frustrate the re-documentation process with a number of varied tactics and is the architect of his own position."
The decision was approved by the Director on 30 December 2011. It is unclear what was meant by the "varied tactics" by which the Claimant was said to have frustrated the re-documentation process.
"The JR team requested a number of documents be located and the file transferred to them. This was completed on 26 January ………papers were filed on 30 January 2012 and we await the outcome …….Having contacted HMP Highdown it has not been possible to obtain telephone numbers of calls made by Mr Mulliqi while he was completing his custodial sentence this information will be fed back to CSIT. It was expected that a meeting with CSIT would take place on 26 January 2012 but it was not possible due to CSIT not having sufficient time."
The action plan for the next review period was set to be:
"Monitor the outcome of the judicial review. Given it was not possible to see CSIT on 26 January 2012, contact CSIT and arrange a meeting so that they may be able to offer advice on progressing the case. There are no other barriers to removal at this time aside his documentation (sic) and therefore further input from CSIT is required as to the next appropriate action."
"He has attempted to frustrate the progressions of UKBA obtaining an ETD for removal. Mr Mulliqi can be removed on an EU letter however there is the issue of establishing his true identity as previous attempts to remove him to Albania has been unsuccessful (sic). I have considered his release in line with Chapter 55 of the EIG however find that his presumption to release his outweighed by the risk of harm to the public and of absconding as he has no family ties."
The Law
"A trump card which enables the Secretary of State to continue to detain until deportation can be effected whenever that will be."
See Lord Dyson JSC at paragraph 128. I bear in mind that a failure to co-operate in this context falls to be distinguished from a deliberate campaign of deception and misinformation: see the decision of John Howell QC sitting as a Deputy High Court Judge in R (Sino) - v- SSHD [2011] EWHC 2249 (Admin) and my decision in R(Amougou-Mbarga) -v- SSHD [2012] EWHC 1081 (Admin).
"I appreciate that the Defendant can point to the fact that the IJ refused bail in December. As a matter of law, this is not a complete answer to the contention that the decision to detain was unlawful. It is not the IJ's function to decide on the legality of the detention or the rationality of the exercise of the power to detain. He or she must assume that the detention is lawful but may be mitigated in the exercise of discretion by admission to bail."
The Arguments
Conclusions