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||Neutral Citation Number:  EWHC 4327 (Admin)
||Case No: CO/6528/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||19th December 2014
B e f o r e :
RHODRI PRICE LEWIS QC
(Sitting as a Deputy High Court Judge)
|| THE QUEEN
(on the application of Astrit KURTAJ)
||- and -
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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The Claimant was not represented and appeared in person
Mr. William Hansen (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 4 November 2014
HTML VERSION OF JUDGMENT
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Rhodri Price Lewis QC :
- These proceedings began as a challenge to the decision of the Defendant made on the 18th June 2012 to set directions for the Claimant who is an Albanian citizen to be removed from the United Kingdom. Permission to apply for judicial review was refused on the papers by His Honour Roger Kaye QC sitting as a Deputy High Court Judge on the 31st October 2012. However, following the submission of amended grounds of claim referring to family court proceedings, Cranston J granted interim relief on the 9th November 2012 observing that "the extant family proceedings justify relief". The Claimant had initiated contact proceedings in August 2012 in Scotland with a view to gaining access to his two children. The Claimant's ex-wife and their two sons live in Scotland. The older is now 18 years old and the younger son is now 14 years old. Both the sons are British citizens. On the 15th March 2013 Philip Mott QC sitting as a Deputy High Court Judge granted permission to apply for judicial review and granted permission to amend the claim to include a challenge to the Defendant's decision dated the 21st June 2012 to certify the Claimant's human rights claim as clearly unfounded (referred to by Mr Hansen for the Defendant as "the Certification Challenge") and to include a challenge to the legality of his detention by the Defendant after the 6th July 2012 (referred to as "the Detention Challenge").
- The Claimant is a 41 year old Albanian citizen who arrived illegally in the United Kingdom in 2000. He made a claim for asylum that was rejected. In March 2004 he was removed to Albania. By June 2004 he was back in the United Kingdom illegally. He was removed again in March 2008. The Claimant claims to have re-entered the United Kingdom - again illegally - on the 28th December 2011. He was detained on the 7th June 2012. Directions were set for his removal on the 22nd June 2012. On the 21st June 2012 his solicitors submitted representations claiming that his removal would breach his right to respect for his private and family life under Article 8 of the European Convention on Human Rights. By letter of the same date the Defendant certified his human rights claim as clearly unfounded. The judicial review claim form was filed on the 22nd June 2012 and the removal directions were deferred. By the 3rd August 2012 the Claimant had initiated family proceedings in Scotland seeking contact with his children. An interim contact order was made on the 19th February 2013 but by an order of the Glasgow Sheriff Court on the 29th October 2013 the proceedings were stayed.
- The Claimant's solicitors' letter of the 21st June 2012 stressed the importance of his relationship with his two sons despite the breakdown of his marriage and the poor relationship with his ex-wife. They asked for him to have sufficient time to make an application to remain in the United Kingdom on the basis of his relationship with his sons because he has wanted "to come back to the United Kingdom by whatever means to be united with his children."
- The letter in response from the UK Border Agency written on behalf of the Defendant and dated the 21st June 2012 read as follows, where material:
"3. You have not explained why, if your client arrived in May 2004 and December 2011, he is only now voicing his claim to remain because of his relationship with his sons…The timing of your representations is therefore of some significance, and it is considered that your client's purpose of raising the issue of his relationship with (his sons) so late in the removal process was simply to frustrate the removal process and prolong his stay in the United Kingdom.
5. Your client is said to have 2 sons who are settled in the United Kingdom. It is claimed that your client has established a family life in the United Kingdom with his sons, has regular contact with them, and that if he is removed to Albania he will not be able to see his children. There is no reason to believe contact cannot be maintained with his sons by letter and telephone, or by computerized technology. Moreover, it is open to your client to apply for entry clearance under paragraph 246 of the Immigration Rules as a person seeking leave to enter the United Kingdom to exercise access rights to a child resident here. You claim that given your client's immigration history '…it is unlikely that the British Embassy in Albania would grant our client a visitor's visa to come to the UK and visit his sons.' I must point out that when making his application for entry clearance your client will be able to raise any human rights issues at that time, and at any subsequent appeal if his application is not successful. Any decision on whether to grant your client entry clearance will take into consideration all the factors presented by your client at that time.
6. Following the Supreme Court's judgment in ZH (Tanzania)  UKSC 4 and taking into account the UK Border Agency's obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009, the position in relation to your client's sons has now been further considered as you requested. Your client's sons are now 15 years old and 12 years old, and I should point out that the UK Border Agency is not seeking to remove them from the United Kingdom. While considering whether it is proportionate to remove your client from the United Kingdom the best interests of the children have been fully considered. While you claim that, prior to your client's arrest, he was in contact with his sons and that since being placed in the detention centre he speaks to his children several times a day, you have failed to provide sufficient evidence to support this assertion. In addition, you have submitted no evidence to demonstrate that your client has established a relationship sufficient to engage Article 8 with his children and you have failed to adequately substantiate how his proposed removal would adversely impact upon the children's wellbeing and development."
- The letter went on to explain that it was not accepted that the Claimant had established a family and private life in the United Kingdom and that therefore it was not considered that his removal would interfere with any such family and private life. It took the view that even if there were such interference it would be in accordance with the law as there was no basis for the Claimant to remain in the country under the Immigration Rules or under any published policy nor could he remain on a discretionary basis outside of the Immigration Rules. Any interference would also be considered proportionate to the permissible aim of maintaining an effective immigration control. The letter maintained that the Claimant had shown disregard for the Immigration Rules and had failed to show that any significant disruption to family life would be caused by the decision to remove him or that the decision to remove him would have an adverse impact on his sons. The letter concluded:
"In the light of the above, we are satisfied that your client's human rights claim is one to which Section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. After consideration of all the evidence available, we have decided that your client's claim is clearly unfounded, that is 'the allegation is so clearly without substance that the appeal would be bound to fail' (Thangarasa and Yogathas  UKHL 36). Therefore, a certificate is issued under Section 94(2) of the NIA Act 2002 certifying that your client's claim is clearly unfounded. Accordingly, your client's removal on the 22 June 2012 will be deferred for the prescribed 5 days from the date of service of this letter."
- The papers prepared in August 2012 by the Claimant's solicitors for the Scottish family court proceedings explained that the Claimant was unaware of the younger child's current address other than that it was somewhere within the City of Glasgow. The record of the review of his detention after 6 months on the 28th November 2012 recorded that "The subject does not have contact with his ex partner and children and does not know their whereabouts." The nine-month review recorded:
"The subject attended a court hearing on 17/12/12 in regards to access to his son and a further hearing is set for 19/02/13. However, it is not considered that any future removal will breach Article 8 as the subject does not know his wife and child's whereabouts and there is no current contact between them."
- In a witness statement dated the 3rd November 2014 Yvonne Roberts, a Senior Executive Officer employed by the Home Office who has had direct involvement with this case, says that the Claimant has an appalling immigration history, he has openly stated on many occasions that he will re-enter the United Kingdom if removed and he "is a high absconder risk". He has been refused bail on seven occasions with the judge on each occasion being satisfied that there were substantial grounds for believing that the Claimant would abscond if granted bail. He has made threats to staff.
- The Claimant told me that he came to the United Kingdom most recently because of his children. His relationship with his ex-wife is very bad but his relationship with his sons is good. His older son is now 18 and working as a mechanic in Glasgow and lives with his mother. His younger son is at school and he last saw him two weeks ago and although his ex-wife is not happy about it she has given permission for their son to see him. He told me that the court in Glasgow is no longer involved because it is not needed. He told me he is being supported by his new fiancée with whom he has lived for the last 18 months. He told me that his mother, sister and brother still live in Albania. He told me he has no criminal convictions.
The Grounds of Claim
- The original challenge to the removal directions has become academic because the directions were cancelled following the initiation of these proceedings. The Claimant was released from detention on the 19th March 2013 following the grant of permission by Mr Philip Mott QC sitting as a deputy High Court Judge on the 15th March 2013. The remaining issues are therefore as described by Mr Hansen for the Defendant "the Certification Challenge" and "the Detention Challenge."
(1) The Certification Challenge:
The legal framework:
- When a person makes an asylum or human rights claim the Defendant may certify the claim as "clearly unfounded" under Section 94 of the Nationality, Immigration and Asylum Act 2002. The states in respect of which certification is possible are listed in Section 94(4). The Republic of Albania is such a state. The section provides, so far as is relevant:
"(1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both).
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.
(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied it is not clearly unfounded.
(4) Those states are
(k) The Republic of Albania
(9) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82 (1) whilst outside the United Kingdom, the appeal shall be considered as if he had not been removed from the United Kingdom."
- So the effect of a certificate under Section 94 is that a person may not appeal a decision to remove him from the country under section 82(1) of the 2002 Act while he is in the United Kingdom.
- "Clearly" and "manifestly" unfounded mean the same and it was held in Thangarasa and Yogathas  UKHL 36 that "No matter what the volume of material submitted or the sophistication of the arguments deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegations must clearly fail."
- On an application for judicial review of the Secretary of State's decision to certify, the court is exercising a supervisory jurisdiction, although one involving such careful scrutiny as is called for where an irrevocable step, potentially involving a breach of fundamental human rights, is in contemplation: see R (Razgar) v Secretary of State for the Home Department  2 AC 368 .
- In that case Lord Bingham of Cornhill went on to explain:
"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on Article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
18 If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom  19 EHRR 112. If the reviewing court is satisfied that the answer to the question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit an affirmative answer only.
19 Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah  2 AC 323,339, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to image an adjudicator answering this question other than affirmatively.
20 The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213,228, para 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockleton and Mr J Freeman) observed that: 'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.' In the present case, the Court of Appeal had no doubt  Imm AR 529, 539, para 26 that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of cases, identifiable only on a case by case basis."
- In ZT (Kosovo) v Secretary of State for the Home Department  UKHL 6 Lord Phillips of Worth Matravers explained:
"Where, as here, there is no dispute as to primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."
- Guidance has been given as to the relevance of family proceedings to such questions and their answers in Mohan v Secretary of State for the Home Department  EWCA Civ 1383 at , the Court of Appeal there endorsing the guidance given in RS v Secretary of State for the Home Department  UKUT 00218 (IAC) in the following terms:
"43. In our judgment, when a judge sitting in an immigration appeal has to consider whether a person with a criminal record or adverse immigration history should be removed or deported when there are family proceedings contemplated the judge should consider the following questions:
(i) is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
(ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interests of the child?
(iii) In the context of immigration proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child's welfare?
(vi) In assessing the above questions, the judge will normally want to consider: the degree of the claimant's previous interest in and contact with the child, the timing of the contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child's welfare lies?"
- In RS the Upper Tribunal had already explained that there is no universal obligation that a period of discretionary leave must be granted where family proceedings remain unresolved: see  ibid.
- The Claimant was not represented but he addressed me clearly and articulately. He did not dispute any of the relevant history set out above. He stressed the importance of his relationship with his sons and particularly with his younger son. He explained that contact with that son was continuing satisfactorily and that a court order for contact was no longer needed.
- Mr Hansen on behalf of the Defendant submitted that the fact that the Claimant is the biological father of his son does not mean that family life had been established. He relied on the facts that the Claimant appeared to have no knowledge of the address of his ex-wife and sons and there was no evidence of contact since 2011. He submitted that the court should hold that it would be inconceivable for an adjudicator to find that removal from the country would be disproportionate to the aim of firm immigration control in this case given the claimant's history. As at the time of certification, there was at most the suggestion of potential contact proceedings by a claimant with an adverse immigration history on his third illegal entry into the United Kingdom and at the 11th hour with removal imminent.
- He submitted that the court should ask itself the questions posed in RS and answer that the outcome of the family proceedings was not material to the immigration decision, that there are compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings and that there is reason to believe that the family proceedings were instituted to delay or frustrate removal and not to promote the child's welfare.
- In those circumstances he submits that as at the time of certification the Claimant's human rights claim was clearly unfounded as it was unsupported by any evidence, there were then no pending family proceedings and there were compelling reasons which rendered the Claimant's removal proportionate regardless of any such proceedings and the best interests of the child. He submitted that the Defendant was entitled to conclude that the Claimant had raised the issue only in an attempt to defeat his removal.
Discussion and Conclusions:
- I accept those submissions on behalf of the Defendant. In answering the five questions posed in Razgar, I consider that whilst there would be an interference with the Claimant's family life to the extent that he would not have the same opportunities for contact with his son if he were removed to Albania, I do not consider that the consequences would be of such gravity as to engage the operation of Article 8. His younger son is now 14 years of age. The older son is an adult. The Claimant was out of the United Kingdom from 2008 when his younger son was 8 years old until December 2011 when his son was 11. He appears to have been able to maintain a relationship with his son during those years of absence. But even if the consequences are such as to engage Article 8 the interference would be in accordance with law, in pursuance of a lawful immigration policy and legitimate immigration control means that any derogation from his rights that there might be will be proper and will not be disproportionate. Given the Claimant's history and all the circumstances, this is not one of the small minority of exceptional cases where the decision is disproportionate.
- In the circumstances, in my judgment the Defendant's decision to certify that the Claimant's human rights claim was clearly unfounded was rational and lawful. This ground therefore fails.
(2) The Detention Challenge:
The legal framework
- The well-known principles enunciated by Woolf J. in R v. Governor of Durham Prison ex p Hardial Singh  1 WLR 704, which explain the constraints on the Secretary of State's powers of detention, were summarised in R (I) v. SSHD  INLR 196 by Dyson L.J. (as he then was):
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment ... the following four principles emerge:
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 the reasonable diligence and expedition to effect removal.
47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.
48. 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 pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. 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."
- This formulation of the law was approved by the majority of the Supreme Court in R (Lumba) v. Secretary of State for the Home Department (JUSTICE and another intervening)  2 WLR 671, per Lord Dyson JSC at paragraphs  to . He held with regard to the first two principles derived from Hardial Singh:
"23 ... As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips PSC includes, at para 262, the following: "as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose " (emphasis added). The first principle is plainly derived from what Woolf J said.
24 As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."
- In R (MH) v Secretary of State for the Home Department  EWCA Civ 1112 at  Lord Justice Richards observed:
"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."
- In Lumba Lord Dyson JSC held at  that:
"The risks of absconding and reoffending are always of paramount importance since, if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place."
- In considering the principles set out above, the Court should reach its own judgment as to whether administrative detention is lawful and should not simply adopt a review approach to the Defendant's decision: R (A) v. Secretary of State for the Home Department  EWCA Civ 804 per Toulson LJ at  and Keene LJ at . Toulson LJ held:
"It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)."
- In relation to the relevance of family proceedings to detention, in R(AA Sudan) v Secretary of State for the Home Department  EWHC 2118 (Admin) Mr Justice Dingemans observed:
"It is well known that Claimants can continue to take a proper part in court proceedings from detention. The existence of the Family Court proceedings did not require the Claimant's release. In my judgment it would be wrong to suggest that a person who is detained pending deportation should immediately be released the moment that he starts Family Court proceedings regardless of other relevant matters. The decision must depend on relevant matters."
- The principles enunciated in these cases apply to the detention of an illegal entrant pending his removal.
- Again the Claimant stressed how he had wished to be released from detention in order to maintain contact with his son and had initiated contact proceedings to achieve that objective as soon as he was able. In the hearing before Mr Philip Mott QC, sitting as a deputy High Court Judge, it was submitted by counsel then appearing on behalf of the Claimant that the question of the lawfulness of the detention is intrinsically linked to the question of certification and the implications for family life.
- Mr Hansen on behalf of the Defendant stressed that what the court has to be satisfied of in order to find the continued detention to be lawful is that there was at all times a sufficient prospect of removal within a reasonable period taking into account all relevant factors including the adverse immigration history with repeated illegal entries involving deception and most particularly the risk of absconding. He submitted that up until the grant of permission to bring these judicial review proceedings on the 15th March 2013 there was a reasonable prospect of removing the Claimant within a reasonable period.
Discussion and Conclusions:
- The Claimant is a person in respect of whom removal directions may be given in accordance with paragraphs 8 to 10A of Schedule 2 to the Immigration Act 1971 as an illegal entrant as defined in section 33(1) of the 1971 Act. He entered the United Kingdom for the third time in 2011 without leave thereby breaching Section 3(1)(a) of the 1971 Act and committing an offence under Section 24 (1)(a) of the Act. He was therefore liable to be detained under paragraph 16(2) of Schedule 2 to the Act. He was so detained from the 13th June 2012 until the 19th March 2013, some 279 days. It was explained to him at the time of detention that detention is only used when there is no reasonable alternative but it was decided he should remain in detention because he was likely to abscond if given temporary admission or release taking into account that he did not have enough close ties to make it likely that he would stay in one place, he had previously absconded, he had used deception in a way that led the Defendant's officers to consider that he might continue to deceive, he had failed to give reliable answers to officers and he had not produced satisfactory evidence of any lawful basis to be in the United Kingdom. None of this history is challenged. He is a citizen of the Republic of Albania and there was no obvious barrier to him being returned there and directions for his removal to Albania were set.
- The issues here are whether it was lawful for the Defendant to maintain detention once it was known that family proceedings were contemplated and if so whether there was at all times a reasonable prospect of removing the Claimant from the country in a reasonable time frame up until his release.
- In my judgment the Defendant through her officers was entitled to take the view that the fact that the Claimant had wished to start family proceedings in the Scottish court - and in August 2012 did so - did not mean he had to be released. She was entitled to take into account that the Claimant had illegally entered the United Kingdom on three occasions and there was a high risk of him absconding. The judges who considered his bail applications all took the view that there was a serious risk of absconding. I am not bound by their views but given his history I do agree with them. Lumba supports the proposition that a person's propensity to abscond is a material consideration of paramount importance since if the person has absconded he cannot be removed: see paragraphs 104 and 121. As Mr Justice Dingemans observed in AA, it is well known that claimants can continue to take a proper part in court proceedings from detention and it is wrong to suggest that a person who is detained pending removal should immediately be released the moment he gives an indication that he plans to start or does start family court proceedings regardless of other relevant matters. Those relevant matters in this case included the adverse immigration history and risk of absconding.
- I do not consider that the family court proceedings meant that "it became apparent that the Defendant will not be able to effect removal within a reasonable period", see paragraph 24 above, such that the Claimant ought to have been released. His detention was kept under regular review and as Ms Robbie put it in her witness statement: "Having reviewed the information available at the time, it is clear that the Home Office was closely monitoring the case and was aware of the Claimant's ongoing litigation but was confident that the litigation could be resolved within a speedy time frame. It was not considered that the Claimant's family proceedings had any prospect of success." That latter judgment was a reasonable one at the time given that contact was being opposed by the Claimant's ex-wife, the Claimant appeared not to know his ex-wife's and sons' address and the suggestion of family court proceedings was made by a Claimant with an adverse immigration history when directions for his removal had been set. The application for permission for judicial review was refused on the papers on the 31st October 2012 with the judge considering the case to be totally without merit. It was reasonable to conclude that any renewal of that application would be dealt with within a reasonable period and when Cranston J granted interim relief on the 9th November 2012 he observed that the Defendant's Acknowledgement of Service "should be dealt with on an urgent basis when it is received." So again it was reasonable to conclude that the judicial review proceedings would be concluded in a reasonable time scale with removal proceeding shortly thereafter if permission was again refused. Release followed reasonably promptly after the grant of permission.
- So in my judgment it was lawful for detention to be maintained when family proceedings were contemplated and at no time did it become apparent that the Defendant would not be able to effect removal within a reasonable period until permission for judicial review was granted and then release followed reasonably promptly.
- This ground also therefore fails.
- This application for judicial review is therefore dismissed. I will accept any submission on costs in writing.
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