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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Singh, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1698 (Admin) (24 June 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1698.html Cite as: [2021] EWHC 1698 (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 :
____________________
R (on the application of MANJIT SINGH) |
Claimant |
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- and – |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Nicholas Ostrowski (instructed by Government Legal Department) for the Defendant
Hearing date: June 9th 2021
____________________
Crown Copyright ©
Clive Sheldon QC (sitting as a Deputy Judge) :
Factual Background
"7 The claimant is aged 37. He appears to originate from India, where he was brought up and lived until around the age of 20, and he appears to be a citizen of India, but he does not possess a passport. He first came to the attention of the Home Office in April 2008 when he was arrested on suspicion of being an illegal entrant. He stated then that he had entered the United Kingdom the previous year, namely in 2007. He has on other occasions stated that he entered in 2004 or 2005. When he was arrested he was granted temporary release subject to reporting conditions. In breach of those conditions, he failed to report, and his whereabouts were unknown until January 2014, namely almost six years later, when he was again encountered and arrested on suspicion of overstaying. So that was his first absconding, of almost six years' duration. In January 2014 the claimant was again released and again absconded. So that was his second absconding.
8 In May 2014 the claimant was arrested on suspicion of a serious sexual offence. On 15 December 2014 he pleaded guilty to, and was convicted of, sexually assaulting a 16-year old by penetration. On 23 January 2015 he was sentenced to four years' imprisonment, which I regard as indicating that the facts and circumstances of the offence were serious. He was required to sign the Sex Offenders' Register indefinitely. Also in January 2015, the claimant was convicted of common assault and sentenced to 14 days' imprisonment. So that was a second offence against the person, although of much less gravity.
9 In April 2016 the SSHD [Secretary of State for the Home Department] served a deportation order upon the claimant, which subsists. The claimant had applied for asylum, but his claim was rejected at the same time and he has not appealed from that decision.
10 On 6 July 2016 the claimant was released from his criminal sentence. But he was immediately detained under immigration powers until 21 June 2018, when he was released to approved premises. He failed to attend or remain at those premises, and he failed to report to the Probation Service, as had been required, and he disappeared again until 6 August 2019, when he was encountered and arrested. So that was his third absconding, of about 13 months' duration.
11 On 13 September 2019 the claimant was convicted of, and sentenced to 8 months' imprisonment for, failing to comply with his sex offender notification requirement. That was his third criminal conviction, and the offence, which was serious, indicates a disregard for reporting requirements and the criminal law which, in turn, increases the risk of future absconding if released. The custodial term of that criminal sentence ended on 19 December 2019, since when, as I have said, the claimant has been detained at Wormwood Scrubs Prison under immigration detention powers. Immigration bail has been refused by tribunal judges on 31 December 2019, 11 June 2020 and 26 November 2020.
12 There appears currently to be only one obstacle to removal, namely the absence of an ETD [Emergency Travel Document] for entry into India. The claimant does not possess a passport. There has been reference in the documents and, indeed, in the skeleton argument of Ms Hirst at paragraph 65, to the non-availability or paucity of flights to India as a result of the COVID-19 pandemic. The very recent witness statement of Mabs Uddin, an assistant director of returns logistics and head of the Asia country liaison team (which includes India) in the Croydon office of the Home Office, satisfies me that if an ETD is obtained there are, currently, some regular flights to India, and both voluntary and enforced returns are currently being effected. There would, of course, be requirements as to a very recent negative COVID test which (if positive) could, at the last minute, derail a planned return, but the SSHD, who is keen to deport this person, would obviously facilitate and fund the providing of the necessary test or tests, and in my view, neither the relative paucity of flights nor any issues around the need for COVID tests impact upon the current reasonableness of the past or any further future detention.
13 The problem and obstacle is the ETD. If and when that is obtained the claimant is likely to be removed rapidly. The process of trying to obtain an ETD has undoubtedly been protracted for several reasons, some of which are not the responsibility of the claimant, but others of which are or may be. A file note dated 14 January 2020 . . . records that the claimant refused or declined to complete the required form. However, on or about 18 April 2020 . . . he did do so. Unfortunately (and certainly not the responsibility of the claimant), that form was returned by the Indian authorities on the grounds that the photograph was not of acceptable quality. A further form was returned by the Indian authorities as being a copy, not an original. Finally, on 14 September 2020, an application was submitted which lacked these formal defects.
14 In these forms, including that submitted on 14 September 2020, the claimant gave as his permanent address in India "39, 8 Anjala Road, Kennedy Avenue, Amritsar, Punjab 143001". On 7 December 2020, the Indian High Commission notified that the address provided on the form was "not correct" and that the identity of the claimant had not been verified. Faced with this, the claimant gave a different "permanent address in India", namely, "Raja Sansi Road, Amritsar, Punjab 143001". The postcode or ZIP code, 143001, remains the same, but the name of the road appears to be quite different. This new address is the address contained in the further application form finally signed by the claimant on 22 January 2021, as I will describe below. I appreciate that it may be as long as about 17 years since the claimant was last in India. At that time, roads and addresses may have been imprecisely defined; and/or the memory of the claimant may have become genuinely confused with the long passage of time. So I do not conclude that the claimant has deliberately supplied a false address or addresses. But the fact remains that he has now provided two, and it appears unlikely that both are right. There may or may not be fault or non-cooperation by the claimant in relation to the address, but it is certainly not the responsibility of the SSHD if a wrong address has been given.
15 On 16 December 2020 the claimant was provided with, and asked to sign, a yet further ETD application form . . . giving the Raja Sansi Road address. He signed in three places with specimen signatures, but declined to sign the obviously critical "self declaration" at the end of the form. He maintained his refusal on 4 January 2021 . . . NB I read the entries on this page as evidencing a single occasion of refusal on 4 January, not refusals on 4 and 6 January 2021). Through the first and second witness statements, dated 19 November 2020 and 13 January 2021, of his solicitor, Mr Adam Hundt, the claimant variously explains these refusals to sign as being due to his being fed up with being asked to sign forms, and/or not having an interpreter present, and/or on one unspecified occasion, the prison officer being rude and making an (unspecified) racist remark.
16 . . . I have been informed that the claimant has now, on 22 January 2021, duly signed the form in the required space. The form will, in turn, be sent to the Indian authorities as soon as practicable. The way is now open for the Indian High Commission to consider whether to grant an ETD, although (as to which I can have no view) that may depend upon a correct address having been given."
"Given the current circumstances, provided the Claimant provides accurate and complete information required of him, it would take a minimum of three months for the Indian authorities to complete their nationality and identity checks and communicate the outcome as the usual timescales do not apply in light of the pandemic. Once a positive verification outcome is received, we can request removal directions and remove the Claimant to India within 10 working days, subject to airline company flight availability, re scheduling and changes".
Ms. Comer confirmed that these timescales applied even to the current situation with Covid-19 in India.
Legal Framework
(i) The Hardial Singh principles
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.
"It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation… But in my view, they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. 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 is deliberately seeking to sabotage any efforts to deport him."
"If the detainee refuses to cooperate with the process to enable his deportation then such resistance can properly be taken into account as demonstrating a heightened risk of absconding justifying a prolongation, perhaps for years, of the reasonable period of detention. Of course, throughout that extended period it remains incumbent on the Secretary of State to act with reasonable diligence to try to implement the removal. Provided that she does so, then a lengthy extension of the detention of a recalcitrant detainee may well be justified."
"39. The authorities are in a difficult position in relation to people such as this claimant, who refuse to take steps which would enable them to be deported voluntarily. The combination of the limitation of powers granted to the Secretary of State under the 1971 Act, and the operation of Article 5 of the European Convention on Human Rights imported into our law by theHuman Rights Act 1998 , means that they cannot indefinitely detain someone who is the subject of attempts to deport. They can only detain such a person while there is a realistic and active prospect of deportation, since the root of the power is to detain for the purpose of deportation and nothing else.
40. If someone is recalcitrant, then there are limited steps legally open to the Secretary of State. The public might find that surprising, but nevertheless it is the law. It is familiar law. It is based on a decision by Parliament, not the courts.
41. Faced with a recalcitrant person whom it is proposed to deport, the authorities can and should be free to make strenuous efforts to obtain the assent of the individual concerned. They can and should seek any way around his consent, for example by persuading his country of origin to issue travel documents without a disclaimer or any other indication of willingness on the part of the subject. But if no such action produces results, then, depending upon the facts of the case, it may be necessary for the authorities to face up to the fact that all of the shots in their locker, if I may use that expression, have been expended."
(ii) The Adults at Risk Policy Guidance
"professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm – for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk - should be afforded significant weight. Individuals in these circumstances will be regarded as being at evidence level 3."
"Where on the basis of professional and/or official documentary evidence, detention likely to lead to a risk of harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies:
- removal has been set for a date in the immediate future, there are no barriers to removal, and escorts and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual's return and the individual has not complied with voluntary or ensured return
- the individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern
It is very unlikely that compliance issues, on their own, would warrant detention of individuals falling into this category. Non-compliance should be taken into account if there are also public protection issues or if the individual can be removed quickly.
The above is intended as a guide rather than a prescriptive template for dealing with cases. Each case must be decided on its own merits, taking into account the full range of factors, on the basis of the available evidence.
In each case the length of likely detention will be a key factor in determining whether an individual should be detained.
As part of the determination of whether an individual should be detained, consideration must be given to whether there are alternative measures, such as residence or reporting restrictions, which could be taken to ensure an individual's compliance whilst removal is being planned or arranged and to reduce to the minimum any period of detention that may be necessary to support that removal – for example, by detaining much closer to the time of removal."
Grounds of Challenge
"39 Viewing all the above factors in the round, and performing the necessary balance, I am persuaded by the SSHD and do myself consider that, as of today, the continued detention of the claimant remains lawful. Although the risk of absconding is not a trump card, the risk in the present case is high or very high. It does not trump, but in my view it does, in this case, outweigh the many other factors which all favour release. Echoing Lord Dyson in Lumba at paragraph 121, if the claimant is now released he will be highly likely to frustrate the deportation for which purpose he was detained in the first place. The SSHD has, for good and justifiable reasons, been trying to deport the claimant since 2016. He has a significant criminal record, and he does not have, and never has had, any right to remain here. There is, in my view, a sufficient prospect of removal within the next six months that it is currently reasonable to continue to detain him during that period, even when aggregated with the previous 13 months, and giving full weight to the category B prison conditions in which he is being detained.
40 I thus dismiss the present claim for judicial review. In doing so, I wish to stress, however, that my decision is based squarely on the facts and circumstances as they currently are or appear to be. The SSHD must continue to keep this case under very frequent review, applying anxious scrutiny. The assessment of the risk of absconding may not change, but the Indian High Commission may again refuse the application for an ETD. The psychological state of the claimant may deteriorate. The threat and risk from COVID in the prison may increase. The impact of any of these, or other, changes will require to be carefully considered by the SSHD with an open mind, and may require and impel that the claimant is later released, subject to whatever conditions the Secretary of State may then lawfully impose to attempt to minimise the risk of absconding. But for now, the present claim is dismissed."
Test for interim relief
Discussion
Conclusion
Note 1 I appreciate that there are a range of factors that the Secretary of State would wish to take into account when transferring a detainee from the prison estate to an IRC, and that the normal presumption operated by the Secretary of State is that those convicted of criminal offences against a minor will remain in prison accommodation and will only be transferred to an IRC in very exceptional circumstances. [Back]