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Cite as: [2015] EWHC 2079 (QB)

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Neutral Citation Number: [2015] EWHC 2079 (QB)
Case No: HQ14X04459

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
22/07/2015

B e f o r e :

THE HONOURABLE MR JUSTICE PICKEN
____________________

Between:
KIZA RAMATHAMI
Claimant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

____________________

Mr David Chirico (instructed by Fadiga & Co Solicitors) for the Claimant
Miss Lisa Busch (instructed by The Government Legal Department) for the Defendant
Hearing dates: 8-10 July 2015

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Honourable Mr Justice Picken:

    Introduction

  1. This is a claim by the Claimant, Mr Kiza Ramathami ('Mr Ramathami'), for damages for unlawful detention arising out of his administrative detention by the Defendant (the 'Secretary of State') between 14 August 2009 and 11 July 2011 (when Mr Ramathami was released on bail). The claim does not relate to the entirety of this period but only the period between 31 December 2010 and 11 July 2011. It is Mr Ramathami's case that in this approximately six month period it was or should have been apparent to the Secretary of State that there were insufficient prospects of his removal within a reasonable period. Accordingly, Mr Ramathami says, his continued detention was unlawful pursuant to the principles established in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704 and/or by virtue of Article 5 of the European Convention on Human Rights.
  2. The case began as a claim for judicial review which concerned the entire period of Mr Ramathami's detention, but was transferred out of the Administrative Court and into the general list by virtue of an order made by Cox J on 8 October 2013, Aikens LJ having granted permission to bring the judicial review claim on 24 October 2012.
  3. The Secretary of State resists Mr Ramathami's claim. Her position is that at all times she acted lawfully, reasonably and proportionately in continuing to detain Mr Ramathami, in view of (i) his obstruction of her attempts to 'document' him and/or his failure to cooperate with those attempts, (ii) the fact that she was still in the process of taking steps to document him and remove him throughout the period, and (iii) Mr Ramathami's background and the risk that he might abscond or re-offend.
  4. I am concerned at this stage only with the liability issue. The parties have agreed that quantum issues, should they arise, will be determined later.
  5. Factual background

    Preliminary

  6. The factual background is largely common ground. To the extent that there are any factual disputes at all, Mr Chirico, counsel for Mr Ramathami, suggested in his skeleton argument that it is unlikely that those disputes need to be resolved given that they are peripheral to what Mr Chirico labelled the "significant point", namely whether the Secretary of State was entitled to continue to detain Mr Ramathami.
  7. There are only a few exceptions to the factual common ground, as identified by Mr Chirico. The main point concerns a conversation between Mr Ramathami and an immigration officer on 16 September 2009, when the Secretary of State alleges that Mr Ramathami stated that he had been raised in Kenya rather than in Burundi. This is a matter which might potentially have more significance than other matters which Mr Chirico raised: a point concerning an interview which was arranged for Mr Ramathami on 30 November 2009, but which he did not attend; the nature of the instructions given to certain language analysts commissioned by the Secretary of State; and the circumstances in which an advertisement came to be placed in the Tanzanian press. These are matters which I shall address.
  8. In addition, as will appear when I come on later to address the parties' respective submissions, there are differences between Mr Chirico and the Secretary of State's counsel, Miss Lisa Busch, in relation to some of the inferences or conclusions which are to be drawn from certain events. However, it is more convenient to deal with these matters after first relating the narrative. As to that narrative, in what follows I have drawn on the useful summary set out in the skeleton argument submitted by Miss Busch. I nonetheless make it clear that I have myself looked in detail at the relevant underlying documentation in order to verify that this summary is accurate. What follows also takes account of various points made by Mr Chirico in his skeleton argument, although Mr Chirico confirmed at the hearing that he had no difficulty with the accuracy of Miss Busch's summary.
  9. I should, lastly by way of preliminary, record the fact that there were two witnesses in this case: Mr Ramathami himself, and Mr Jonathan Devereux, an Assistant Director in Criminal Casework, Immigration Enforcement at the Home Office. Mr Ramathami confirmed in examination-in-chief that he had made two witness statements (strictly he signed three but the third was the same as the second except that it had paragraph numbering). He was not cross-examined by Miss Busch. It was, however, agreed by Mr Chirico that it was accepted that it was open to Miss Busch to submit that, during the conversation on 16 September 2009, Mr Ramathami stated that he had been raised in Kenya rather than in Burundi, notwithstanding that this was not a matter which was explored with him in cross-examination. It was similarly accepted by Mr Chirico that no point would be taken on fairness grounds were I to find that Mr Ramathami made this statement despite the lack of cross-examination on the matter.
  10. As for Mr Devereux, he came across as a witness who was both honest and fair. He acknowledged, in particular, that he did not have personal involvement with Mr Ramathami, and that his evidence was based on having looked at the documentation rather than on anything else. He explained that it was the Home Office's policy, as he put it, "to escalate witness statements to HEOs or above". This was why he, rather than Deborah Schofield (the 'case owner' in respect of Mr Ramathami's case) had made a witness statement. He went on to explain that other people whose names feature in the relevant documents (Anna Pitt, Alan Shepherd and Emma Hardy) had either left the Home Office or (in the case of Emma Hardy) had been seconded away from the Home Office, and that another person mentioned in the documents (Angela Kyle) still worked for the Home Office but in another directorate. His evidence was helpful in explaining certain of the documents and in gaining an appreciation of the likely thinking at the Home Office in relation to Mr Ramathami at various times. However, it had its limitations, inevitably, by virtue of Mr Devereux's lack of direct personal involvement in relation to Mr Ramathami's case, and I bear this in mind in considering the parties' submissions on the substantive issues which arise and which need to be determined for the purposes of these proceedings.
  11. Narrative

  12. Mr Ramathami claims to have been born on 15 June 1965 in Burundi. That, as Mr Chirico pointed out, has been Mr Ramathami's consistent position. It is not, however, a position which the Secretary of State accepts. She does not believe that Mr Ramathami is from Burundi. Her position is that the evidence indicates that he is not from Burundi but from Kenya or Tanzania.
  13. Mr Ramathami claimed asylum in this country on 18 June 2001. This claim was refused by the Secretary of State on 2 November 2005 on the ground that Mr Ramathami was not from Burundi. He, therefore, appealed to the Asylum and Immigration Tribunal. His appeal was dismissed on 6 January 2006, the Immigration Judge (C. J. Deavin) not accepting that Mr Ramathami was from Burundi or that he had ever lived there and finding that Mr Ramathami had "not told the truth". The matter having been ordered to be reconsidered by Senior Immigration Judge D.K. Gill, the appeal was subsequently dismissed a second time, on 30 December 2006, Immigration Judge Shanahan concluding (in paragraph 50 of his reasons) that Mr Ramathami's "lack of any understanding of the Kirundi language" caused him to find hat he was not a national of Burundi.
  14. Mr Ramathami's appeal rights became exhausted on 28 February 2007, following a refusal by Senior Immigration Judge Goldstein of an application for permission to appeal to the Court of Appeal. Mr Ramathami was, however, granted temporary admission into the United Kingdom on 30 March 2007, on condition that he reported each month to an identified police station. It appears that Mr Ramathami might have missed his first reporting appointment, judging from the 'Bail Summary' record which has been produced, but there is no issue that he reported as required in subsequent months, and Miss Busch did not suggest that his conduct in this period gives rise to any concerns about absconding.
  15. Just under two years after being granted temporary admission, on 11 February 2009, Mr Ramathami was arrested whilst working illegally, using a false identity document, as a cleaner at a shopping centre in Stoke-on-Trent. He was subsequently convicted on 30 April 2009 of obtaining a pecuniary advantage by deception, fraud and failing to notify a change of circumstances, offences for which he was sentenced to 12 months' imprisonment, with a recommendation that he be deported at the conclusion of his sentence. In passing sentence, Mr Chirico pointed out, based on what is stated in Mr Ramathami's witness statement dated 12 March 2014 rather than on any transcript of the judge's sentencing remarks, the judge expressed sympathy with the "predicament he [Mr Ramathami] was in".
  16. Mr Ramathami having been released from prison, he was then taken into immigration detention on 14 August 2009. In the meantime, after giving his consent on 8 July 2009, a language analysis was performed on Mr Ramathami on 30 July 2009. The purpose of this language analysis was to assist the Secretary of State in establishing Mr Ramathami's nationality. It was carried out by Sprakab, a company based in Sweden.
  17. The report subsequently produced concluded that Mr Ramathami had a deficient knowledge of Burundi, noting that he used certain words typical of a variety of Swahili spoken in Kenya. Under the heading "General comments" the report stated that:
  18. "[Mr Ramathami] speaks Swahili on the recording. He speaks the language to the level of a mother tongue speaker. He says he comes from Burundi. He speaks a variety of Swahili with certainty not found in Burundi. He speaks a variety of Swahili with certainty found in Kenya."

    The report continued:

    "The person uses English loanwords when he speaks Swahili, which is typical of varieties of Swahili spoken in Tanzania, Kenya and Uganda. In varieties of Swahili spoken in Burundi, French loanwords are used."

    This last point was expanded upon later, the report stating how Mr Ramathami used words such as "because, brown, green, two thousand and maybe".

  19. Mr Chirico criticised the report as being "clearly deficient". He also pointed out that it does not appear that the report compiler, somebody who was born and raised in Burundi, was asked about any possible countries of origin other than Burundi, Kenya and possibly Somalia. He questioned why the Secretary of State did not also ask Sprakab to consider Tanzania as a place of origin for Mr Ramathami. He suggested that this was especially odd given that the report states that "The language analysts originate from: Burundi respectively Kenya and Tanzania", and even if that is not right, the profile of the analyst identified refers to that person having "conducted research and field studies in dialectology in Swahili in Kenya, Tanzania, Burundi, Somalia and Uganda".
  20. Mr Devereux was unable to assist on what instructions Sprakab was given in relation to Mr Ramathami's case. It cannot, therefore, be known what instructions were given. It is nonetheless to be noted that the report makes reference also to Tanzania and Uganda, as can be seen from the above-quoted passage. I am not clear, therefore, whether it can necessarily be inferred that Tanzania was not mentioned when instructions were given. Equally, it may be that no country was mentioned other than Burundi, that being the place where Mr Ramathami was claiming to have been born, and what Sprakab has done is address that question. It does not follow that just because Sprakab concluded that Mr Ramathami spoke "a variety of Swahili found with certainty in Kenya" (not in Burundi), so Sprakab must have been asked about Kenya. The reference to Kenya might simply have been the language analyst's own suggestion. In any event, it is not clear why this really matters since Mr Chirico accepted that what matters for present purposes is that the Secretary of State was entitled to treat the report as further evidence in support of her conclusion that Mr Ramathami was not from Burundi, and to proceed to attempt to document him as Kenyan.
  21. Thereafter, on 15 September 2009, the Secretary of State made a Deportation Order with respect to Mr Ramathami. The accompanying letter setting out the 'Reasons for Deportation' ran to some thirteen pages and started by stating, in underlined words, "Claims to be Burundian, believed to be Kenyan". The letter went on to explain in detail why the Secretary of State had reached this conclusion. This included a summary of why Mr Ramathami's original claim for asylum had been rejected, which is worth setting out because it serves as a useful prιcis of the Secretary of State's position as to why she did not (and does not) accept that Mr Ramathami is a Burundian national:
  22. …".

    The letter continued:

    "14. You have provided no evidence to support your claim to be a Burundian national and your claim in this respect has not been accepted to be accurate. Indeed, this view was supported by Immigration Judge's during the consideration of your past appeals (as outlined above) and also following your recent language analysis test in which it was concluded that you spoke a variety of Swahili with certainly not found in Burundi but with certainty found in Kenya.

    15. Given all of these findings, it is therefore considered that you are not a national of Burundi but instead are a Kenyan national."
  23. Mr Ramathami was served with the Deportation Order on 16 September 2009. It is on this occasion, at Brook House Immigration Removal Centre ('Brook House'), that Mr Ramathami is said by the Secretary of State to have told an immigration officer, an E. Farnes (I do not know whether this person is a man or a woman) that he had been born in Burundi but raised in Kenya rather than Burundi. Mr Ramathami disputes this. However, the 'GCID – Case Record Sheet' is very specific. It states:
  24. "Called up sub to serve DO docs, Out of Country Appeal papers, Reason for Detention Letter, Bio-Data, and Kenyan Travel Doc Application Form. Sub claims he was born in Burundi but raised in Kenya when I told him about the language analysis. He wants to read through the bio-data and other docs before completing them for submission."

    This is an entry which was filled in on 16 September 2009 itself, the day of the conversation between Mr Ramathami and the immigration officer.

  25. There is then a further entry, this time by Deborah Schofield, for 18 September 2009, which states as follows:
  26. "Contact with E Farnes at Brook House revealed that the subject attempted to account for the language analysis findings, which indicated he is probably Kenyan, by claiming to have been born in Burundi and raised in Kenya. …

    I have highlighted to staff at Brook House that the subject has never made any reference to being in Kenya and was specifically asked during the asylum interview whether he had lived in any other countries to which he replied no. All of his claims referred to alleged life and events in Burundi. It is clear that deception has been employed at some stage and it is still considered, in the absence of any evidence to the contrary, that the subject is Kenyan.

    Staff at Brook House have been asked to question the subject further about his time in Kenya in the hope that he provides some truthful information that we can conduct enquiries on. Once this information has been obtained, the staff are to highlight the discrepancies to the accounts he has previously provided and ask for comment."

  27. The next entry, on the following day (19 September 2009), is from E. Farnes again. It states:
  28. "Called up sub for interview yesterday afternoon but he did not show up. Will call him again today.

    Sub turned up for i/v. He was calm. I asked about his bio-data, he said it is with his solicitor and will submit it to his caseworker once it's completed. When I asked him about his life in Kenya, he said he's never been there. I thought you were raised there you told me I said to him, he said no. He said he did not say that. But I asked you twice I said and you said yes you were raised in Kenya. He said he never said he was raised there. He said one can not hate his own country, if I am from Kenya I will say I am from Kenya but I am from Burundi he said. I asked if he still got family ties in Burundi, he said none. He said all he's got left there are very remote relatives and he has got no contact with them."

  29. As I have indicated, this is an area where there is a factual dispute. Mr Ramathami disputes that he told the immigration officer that he was born in Burundi but had lived in Kenya. Mr Chirico submitted that it is more likely than not that Mr Ramathami did not say what he is recorded as having stated, observing that the entries (specifically the initial entry referring to the conversation) are very brief and not a very sound basis on which to base a finding that what is recorded as having been stated was actually stated. I do not agree. I do not see any reason to suppose that what is recorded in the first entry is anything other than accurate. It is difficult to see how the immigration officer could have been under any confusion as to what was being stated by Mr Ramathami. It is a very specific entry, however brief it was. I cannot see how the immigration officer can have misunderstood what was being said by Mr Ramathami. Further, it seems to me that the context described in the entry is important. There is absolutely no reason to doubt that the immigration officer told Mr Ramathami about what the language analysis report had determined. Given this, I can readily see that Mr Ramathami would have felt it necessary to offer an immediate explanation by way of rebuttal to the report. The fact that the immigration officer then relayed the conversation to Deborah Schofield seems to me to underline the likelihood that what Mr Ramathami is recorded as having stated was, indeed, what he stated.
  30. The fact that Deborah Schofield pointed out that Mr Ramathami had not previously said anything about having lived in Kenya does not undermine the fact that the immigration officer was reporting that Mr Ramathami had stated that he had lived in that country. On the contrary, as I see it, if anything, it strengthens the conclusion that the immigration officer's understanding of what Mr Ramathami was saying was accurate because it is likely that the immigration officer would have indicated if he or she was in any doubt about what Mr Ramathami had had to say, yet there is nothing to show that the immigration officer expressed any such reservations at all. Indeed, as demonstrated by the subsequent entry relating to the further meeting which took place between the immigration officer and Mr Ramathami, when what he had said was explored further, the immigration officer was very clear about what he or she had been told. I regard it as most probable that Mr Ramathami did say what he is alleged to have said when he was first told about the language analysis report's conclusion, and that what he then did a couple of days later was deny that that was what he had stated because by that stage he had worked out that it would be better not to confuse by maintaining the line that he had lived in Kenya for a time, but instead to stick to the simpler position that he was born and raised only in Burundi.
  31. The following month, on 7 October 2009 to be precise, Mr Ramathami was interviewed at Brook House. During the course of this interview, he gave incorrect answers to a number of the questions put to him about Burundi. Afterwards, he then refused to complete an Emergency Travel Document (an 'ETD') and also refused to permit his photograph to be taken. It is accepted on Mr Ramathami's behalf by Mr Chirico that, whilst there might be some disputes about Mr Ramathami's understanding of the processes being followed by the Secretary of State at this time and also as to the specific contents of some of the interviews taking place at about this time, these are not matters which need to be gone into in any detail at all because they are, as Mr Chirico put it in his skeleton argument, "peripheral to the core issues in this case".
  32. As Mr Chirico put it, what matters is that Mr Ramathami accepts that, between August 2009 and December 2010, a number of steps were taken by the Secretary of State to interview or arrange interviews with him, and also that, as will appear, steps were taken to contact and pursue his documentation with the Tanzanian and Kenyan authorities. More particularly, the "significant point", again as Mr Chirico put it in his skeleton argument, is that, throughout this period, the Secretary of State considered that Mr Ramathami was engaged, as it is put in the Defence served in these proceedings at paragraph 23, in an "on-going attempt […] to obstruct the process of his deportation".
  33. Returning to the chronology, the next thing which happened, or more accurately did not, in the event, happen, is that the Secretary of State arranged for Mr Ramathami to be interviewed by a visiting delegation from several East African countries. This interview was due to take place on 30 November 2009, but the interview did not happen. This was because Mr Ramathami refused to leave Brook House to attend the interview. This is an aspect which Mr Chirico explored with Mr Devereux, or at least tried to explore. He asked Mr Devereux to confirm that, whilst Brook House is the detention centre which is typically used when people are going to be deported via Gatwick Airport, the detention centre where the interview was due to take place, Colnbrook Immigration Removal Centre, was the Heathrow Airport equivalent. Mr Devereux was unable to confirm this, but it was, in any event, Mr Chirico's submission that it was because Mr Ramathami was concerned about being taken to this other detention centre that he was unwilling to attend to be interviewed, not because of anything else. I accept that this probably was the position. In fairness, Miss Busch did not place a great deal of reliance on this episode.
  34. Miss Busch did, however, point out how, throughout the whole period of his detention, Mr Ramathami refused to provide the Secretary of State with any information concerning his nationality beyond his assertion that he was Burundian. She did this when going on in the story to highlight how the following February the Secretary of State made a request that the Kenyan authorities interview Mr Ramathami. To this end, several months later, on 20 May 2010, Mr Ramathami was taken to the Kenyan High Commission. This was so that he could be interviewed for a travel document. The Kenyan authorities, however, declined to issue Mr Ramathami with such a document because of his insistence during the interview which took place that he was not from Kenya but was from Burundi.
  35. A month later, on 24 June 2010, Mr Ramathami was then interviewed by an official from Burundi. That official, however, did not accept that that was the case, taking the view that it was likely that he came instead from the East African coast, with Tanzania being mentioned. This interview was conducted in Swahili, as Mr Ramathami had stated that "he did not know any Kirundi word".
  36. This led the Secretary of State, on 7 July 2010, to make a request to the Foreign and Commonwealth Office (the 'FCO') to conduct inquiries with the Tanzanian authorities, asking those authorities, in particular, to check their passport archives for any trace of Mr Ramathami. That same day, Mr Ramathami was interviewed by an officer of the Secretary of State, who informed him of the conclusions reached by the Burundi officials. He nevertheless continued to maintain that he was from Burundi. He was again seen on 11 July 2010, but refused to answer the questions put to him by the officer. Some weeks after this, on 6 August 2010, the Secretary of State informed Mr Ramathami that he would no longer be permitted to undertake paid work at Brook House because of his lack of cooperation with the removal process.
  37. Then, in September and October 2010, the Secretary of State made further contact with officers in Tanzania and Kenya with respect to Mr Ramathami.
  38. In addition, in early October 2010, an East African countries seminar was held in Kigali. As part of this, Mr Ramathami's case was discussed as a 'real life' case study. The suggestion was made that Mr Ramathami should be interviewed by an organisation known as 'British Africans in Government', and that Mr Ramathami should also have his fingerprints compared against Kenyan records. I should explain that 'British Africans in Government' was apparently a collection of people within the British Government. It was not, as Mr Devereux suggested when asked in cross-examination what he knew about the group, some other type of organisation. In fairness to Mr Devereux, he clearly knew nothing about 'British Africans in Government'. Nothing turns on this. Nor does anything turn on the fact that, as I understand it, the group was subsequently disbanded.
  39. All that matters, it seems to me, is that, in line with what had been suggested in the Kigali seminar, wet fingerprints were obtained and submitted to the Kenyan authorities, and Mr Ramathami was interviewed by a representative of 'British Africans in Government' on 21 December 2010. The representative, Mr Robert Jones, slightly oddly referring to himself not as a representative of 'British Africans in Government' but as a representative of 'Black Africans in Government', concluded that it was unlikely that Mr Ramathami was a Burundian national. He explained that he "formed this conclusion due to the absence of any emotion when recounting the events that lead [sic] to his alleged exodus from Burundi", adding that he (Mr Jones) was "sure the scale of violence, and claimed genocide, would likely leave residual mental or emotional trauma". Mr Jones also observed that Mr Ramathami was "far more interested in not giving different answers to ones previously provided to the HO".
  40. I should mention that, in the meantime, on 12 October 2010, the Tanzanian authorities had notified the Secretary of State that they were agreeable to conducting checks with respect to Mr Ramathami, and the Secretary of State's officers chased the FCO for a response in this connection in November and December 2010.
  41. Throughout this period and, in fact, beyond Mr Ramathami had sought, but been refused, bail on numerous occasions. Bail was refused again on 27 January 2011, the Immigration Judge taking the view that the evidence demonstrating that Mr Ramathami was not from Burundi was clear, and that his ongoing detention was largely his own doing. It is the Secretary of State's position, which is essentially not disputed by Mr Ramathami (through Mr Chirico), that at the same time Mr Ramathami continued to refuse to co-operate with the removal process, and to maintain that he was from Burundi.
  42. In April 2011, the Secretary of State placed an advertisement concerning Mr Ramathami in the Tanzanian press. This was done because placing an advertisement had apparently achieved a successful result on a previous occasion. Mr Chirico made the point, both when cross-examining Mr Devereux and in submissions to me, that there is very little known about this advertisement. It is not known what the advertisement stated, nor is it known in what newspaper it appeared. It is also unclear what the contractual arrangements were in respect of its placement. Nothing but a few emails discussing the possibility of advertising has been disclosed. This, Mr Chirico submitted, is unsatisfactory. I have some sympathy with this submission. However, as Mr Chirico sensibly acknowledged, there is no reason to doubt that an advertisement was placed. It is equally clear that nothing came of the advertisement. This is really what matters, although Mr Chirico would probably go further and suggest that it was most unlikely that anything was ever going to come of the exercise. This, he submitted, demonstrates that by this juncture the Secretary of State had essentially run out of any more ideas as to how to resolve the problem of 'documenting' Mr Ramathami.
  43. This is a matter which I shall address later when dealing with the parties' respective submissions. However, the same submission is made by Mr Chirico as regards the fact that officers contacted the FCO in June 2011 to follow up the inquiries which had been made with the Kenyan and Tanzanian authorities. Mr Chirico submitted that these were inquiries which had long been outstanding and were, in effect, going nowhere by this stage.
  44. The same applies, in Mr Chirico's submission, to the fact that, on 14 June 2011, the Secretary of State obtained a copy of the list of his visitors whilst in detention with a view to examining it for evidence as to his nationality, only to find that the majority of his visitors were from welfare groups. It applies also, Mr Chirico suggested, to the fact that, in early July 2011, shortly before Mr Ramathami's release from detention, a police officer visited the address where a friend of his allegedly resided, only to be told by the person to whom he spoke claimed not to recognise Mr Ramathami either by name or photograph. This visit followed a further interview with Mr Ramathami, which took place on 4 July 2011. On this occasion, as on previous occasions, Mr Ramathami continued to claim that he was from Burundi and to refuse to assist in the documentation process with respect to any other country. He did, however, take down the contact details for the Tanzanian High Commission.
  45. In the meantime, as pointed out by Mr Chirico, in a detention review which appears to have been undertaken on about 3 June 2011, Deborah Schofield wrote this:
  46. "Proposal

    ? Release.

    I have assessed this case in accordance with current criteria (including the presumption in favour of release and length of detention to date) and conclude that the subject does present a risk of absconding given the extensive deception utilised to date. However, the subject has now reached 24 months in detention and it is unclear when removal will be effected as nationality is still unconfirmed and efforts to establish such have thus far failed. Initiatives requested are either on hold or not receiving a response and it is therefore unclear when/how removal may be effected.

    There is no evidence of any risk of harm to the public other than those inherent in the nature of the offences he has committed, he is not subject to MAPPA and his licence has expired."

    Mr Chirico submitted that this is significant because Deborah Schofield, as the 'case owner', was effectively in this detention review recognising, he suggested, that the time may have come for Mr Ramathami to be released.

  47. What followed this was that Deborah Schofield's superior, Emma Hardy (an HEO), referred the matter to her superior, Angela Kyle (Mr Devereux's predecessor as Assistant Director). The relevant exchanges took place on 3 June 2011, and entail Emma Hardy asking Angela Kyle the following question:
  48. "… With no prospect of removal within a reasonable timeframe do you agree to maintain detention whilst a release referral is submitted to the Strategic Director?"

    Angela Kyle responded:

    "I agree. The risk of absconding outweighs the presumption in favour of liberty pending referral to the Strategic Director to consider whether the risk can be mitigated through robust contact management."

  49. The Strategic Director's decision was to maintain Mr Ramathami's detention. This is reflected in the detention review for the following month in a passage coming after a reference to the fact that an advertisement had been placed in the Tanzanian press which raised the possibility that "a similar approach in the Kenyan press would be possible", albeit then saying this:
  50. "there was concern expressed about this type of approach and further input was sought from legal advisors. An update in this respect is awaited."

    This was followed by the following:

    "Progress since last review

    Continued detention was authorised by a Director on 03 June 2011 pending referral to the Strategic Director for consideration of contact management. A referral was submitted to the Strategic Director who responded on 06 June 2011 as follows:

    'If we were to release this individual deportation would not be possible given his compliance and there is a high risk of absconding. He would also re-offend given he presumably has no assets and no means of living. He should remain detained. The length of his detention is entirely associated by his lies and deceit re nationality and identity, matters for which he was convicted in the first place. Strenuous efforts have been made to establish the identity and nationality and the result of some of the checks is still awaited. We should continue to pursue those. We should also consider if there is evidence to prosecute him for obstructing under Section 35."

  51. The Strategic Director's decision was followed a few days later by Mr Ramathami being refused bail on 10 June 2011, the Judge remarking that he had been found to be lacking in credibility in his asylum claim and had a poor immigration history, including the use of deception. He added:
  52. "I am satisfied that the appellant has a long history of non-co-operation in respect of the process of obtaining a travel document. Although the appellant has, on occasion, attended interviews arranged by the UKBA or spoken to Embassy representatives on the telephone, he has failed to provide useful information in order to establish his identity and nationality. It is not credible that the appellant could have left Burundi at the age of 35, in 2001, but be unable to provide the names of any friends or family there … .

    Despite having been in the UK since 2001 he is unable to provide a private address or a surety which shows a lack of ties in the community or others who are prepared to come forward to support the appellant. I draw an adverse inference as a result. The only bar to removal is obtaining a travel document and I am not satisfied that any conditions I could impose would secure his co-operation".

  53. Mr Ramathami was, however, released from detention, on bail, on 11 July 2011, subject to electronic tagging and reporting requirements, hence the fact that the present claim does not relate to any later period. He has remained on bail ever since, recently, on 23 June 2015, being told by the Secretary of State that she has decided to refuse leave to remain (with an in-country right of appeal).
  54. The law

  55. Just as there was little between the parties in relation to the facts, so the parties were largely agreed as to the relevant legal principles. It emerged at the hearing, however, that there was not complete agreement, and both Mr Chirico and Miss Busch made fulsome reference to authority.
  56. The difference between Mr Chirico and Miss Busch is in relation to the topic of failure to co-operate. I was informed by both counsel that the point which divides them is novel. It is a point which, in the circumstances, I must obviously seek to resolve. Whether or not it is a point which matters on the facts of the present case is, however, a matter to which I shall have to return when discussing the parties' respective submissions.
  57. I begin by addressing matters which I understand remain uncontroversial.
  58. Statutory framework

  59. The starting point is the Immigration Act 1971, specifically section 3(5)(a) which provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his or her deportation to be conducive to the public good. Section 3(6) then goes on to provide that, without prejudice to the operation of section 3(5), a person who is not a British citizen shall also be liable to deportation from this country if, after he or she has attained the age of 17, he or she is convicted of an offence for which he or she is punishable with imprisonment and on his or her conviction is recommended for deportation by a court empowered by the 1971 Act to make such a recommendation.
  60. Section 5(1) then states that, where a person is under sections 3(5) or 3(6) liable to deportation, then, subject to the following provisions of that Act, the Secretary of State may make a deportation order against him:
  61. "that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given before the order is made or while it is in force".

    This is followed by section 5(2), which provides that a deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.

  62. Of particular significance in the present case is Schedule 3 to the 1971 Act, paragraph 2 of which provides, in part, as follows:
  63. "(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

    (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of subparagraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."

    Hardial Singh principles

  64. Both paragraphs 2(2) and 2(3) of Schedule 3 are concerned with what is sometimes called 'administrative' detention by the Secretary of State. It was the exercise of the Secretary of State's 'administrative' power to detain which was under consideration in Hardial Singh. In that case, Woolf J (as he then was) stated as follows at page 706D-G:
  65. "Although the power which is given to the Secretary of State in paragraph 2 [of Schedule 3 to the 1971 Act] to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable to machinery of deportation to be carried out, I regard the power of detention as being implicitly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

    In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

  66. As both Mr Chirico and Miss Busch pointed out, the Hardial Singh principles were approved by the Court of Appeal in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, in which Dyson LJ (as he then was) stated as follows at [46]:
  67. "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 [1984] 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 Le Tam v Tai A Chau Detention Centre [1997] AC 97, 111A-D … . In my judgment, [Counsel for the Secretary of State] correctly submitted that 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."

  68. I shall return shortly to what Dyson LJ went on to say immediately after identifying these principles. For the moment, I would merely observe that R (I) was approved by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245.
  69. The first Hardial Singh principle

  70. As to the first of the Hardial Singh principles (as summarised by Dyson LJ in R (I)), Mr Chirico emphasised that it is concerned, and only concerned, with a detention power which is exercised alongside an intention to deport the person concerned.
  71. This was made abundantly clear by Baroness Hale in R (Lumba) at [198]:
  72. "… The statutory power to detain under paragraph 2(2) and (3) of schedule 3 to the Immigration Act 1971 (quoted by Lord Dyson at paragraph 4 of his judgment) is, on its face, very broad. Provided that the detainee has been notified of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained pending the actual making of the order (para 2(2)). Once the deportation order is made, he may be detained pending his removal or departure from the United Kingdom (para 2(3)). However, since at least the case of R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, it has been recognised that there are limitations implicit in these powers: the detention must be for the statutory purpose of making or implementing a deportation order and for no other purpose; hence it cannot be continued once it becomes clear that it will not be possible to effect deportation within a reasonable period; the Secretary of State must act with reasonable diligence and expedition to bring this about; and in any event the detention cannot continue for longer than a period which is reasonable in all the circumstances."

  73. As Mr Chirico observed, the Secretary of State has a separate power to secure a person's detention for the purposes of punishing that person for non-compliance. This is to bring a prosecution pursuant to section 35 of the Asylum (Treatment of Claimants etc.) Act 2004, but that is not an administrative sanction and as such is not comparable with the powers contained in paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act.
  74. The second, third and fourth Hardial Singh principles: their interrelationship

  75. As to the second and third of the Hardial Singh principles, both Mr Chirico and Miss Busch referred to what Dyson LJ went on to say in R (I) after he had summarised the principles at [46].
  76. Dyson LJ continued in the next paragraph, [47], by giving the following explanation:
  77. "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."

    He then added at [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."

  78. Mr Chirico observed that it is commonsense that the "diligence, speed and effectiveness of the steps taken by the Secretary of State" to which Dyson LJ referred in the above-quoted passage are a material consideration, and that if there is a failing in this connection, then any period of detention lengthened by it will, or at least may, be unreasonable. That seems to me to be right, and was not disputed by Miss Busch.
  79. I agree also that it may result in a separate ability on the part of the person affected to complain that the Secretary of State has not abided by the fourth Hardial Singh principle – the requirement that the Secretary of State should act with reasonable diligence and expedition. Mr Chirico submitted in his skeleton argument that if the Secretary of State were to be shown to have acted without reasonable diligence and expedition at an earlier stage of detention, she may not be able to rely upon the possibility of belated action in justifying a further period of detention. That again seems to me to be right, and again was not disputed by Miss Busch. It is also in line with the approach which was adopted in R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin). In that case, Mr John Howell QC (sitting as a Deputy High Court Judge) said this at [69]:
  80. "On behalf of the Claimant Ms Harrison was minded to accept that the Secretary of State's failure to act with reasonable diligence and expedition to effect removal would not make detention unlawful unless that had had an effect on the length of an individual's detention. Unsurprisingly perhaps Mr Thomann on behalf of the Secretary of State agreed. In my judgment this may well be the case. But an earlier failure to act with reasonable diligence and expedition may well mean that it is reasonable to expect that the Secretary of State should act thereafter with greater diligence and expedition than she might otherwise reasonably be expected to do. Thus, even if that failure does not itself make detention unlawful subsequently, it may affect what a reasonable period in such a case would be."

    The third Hardial Singh principle

  81. In relation to the third of the Hardial Singh principles, Mr Chirico relied on an earlier passage in R (Sino), at [64], as follows:
  82. "In my judgment the third Hardial Singh principle is indeed important if individuals are to be protected against unjustifiable detention by the executive. Those responsible for detaining individuals need to give attention to it. It is never sufficient merely to consider whether the time for which an individual has been detained has ceased to be reasonable. It is also always necessary to consider what the prospects for removing an individual are and whether, given any period which that individual has already spent in detention, there is a realistic prospect that that individual will be deported within a reasonable time."

  83. Mr Chirico submitted that, although there is no mandatory requirement that the Secretary of State should identify a finite period within which removal will take place, the longer the detention goes on, the greater the degree of "certainty and proximity of removal" is required in order to justify continuation of the detention.
  84. As Richards LJ put it in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at [64]:
  85. "… the approach of Toulson LJ in A (Somalia) seems to me to be particularly helpful when considering the issues raised here about the prospect of securing the claimant's removal to Somaliland. As Toulson LJ said, there must be a 'sufficient prospect' of removal to warrant continued detention, having regard to all the other circumstances of the case … . What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case."

    Richards LJ continued at [65]:

    "I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to the established principles. In my view Mitting J was not purporting to do that but was simply asking himself the questions 'by when?' and 'on what basis?' for the purposes of his own consideration of the case before him. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. 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. Thus in A (Somalia) itself there was 'some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be' (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released."

    He then continued at [66] as follows:

    "Sales J committed no error by asking himself first whether there was 'some prospect' of removal: he referred in that connection to R (Khadir) v Secretary of State for the Home Department, where the focus was on the existence rather than the exercise of the power of detention, but the same language is to be found, as I have said, in A (Somalia). 'Some' prospect in this context plainly means a realistic prospect, and I do not read Sales J's judgment as proceeding on any other basis. Of course, A (Somalia) shows that the court needs to go on to consider the degree of certainty or uncertainty affecting the prospect of removal and to ask itself whether the prospect is sufficient to warrant detention in all the circumstances of the case; but it seems to me that Sales J had that point in mind as well. At para 86 of his judgment he set out the relevant passage in A (Somalia); and at para 98, citing the judgment of Simon Brown LJ in I (Afghanistan), he referred to the range of circumstances to be taken into account in determining the reasonableness of a period of detention, including '[t]he likelihood or otherwise that removal will in fact prove possible'. Reading his judgment as a whole I am satisfied that he carried out the requisite balancing exercise, taking the likelihood or otherwise of removal properly into account."

  86. In short, what is required is a prospect which is realistic or sufficient, descriptions which are meant, in this context at least, to amount to the same thing. Mr Chirico and Miss Busch were ultimately agreed about this. As Miss Busch put it in her closing submissions, by reference to certain evidence which Mr Devereux had given, what would not be appropriate would be for the Secretary of State to "operate on the basis of hope"; there must instead be a "legitimate" basis for considering that removal is feasible. I emphasise that the quotation marks reflect the evidence given by Mr Devereux and, as such, should not be regarded as further muddying the waters as to what is required. Mr Devereux's evidence does nonetheless seem to me to be consistent with the need that there be a realistic or sufficient prospect of removal. I certainly did not understand him to have been suggesting that the Secretary of State purports to operate by reference to some lesser standard of removal prospects.
  87. Absconding, commission of offences and lack of co-operation

  88. As made clear by Dyson LJ in R (I) at [48], it is neither possible nor desirable to produce an exhaustive list of all the circumstances which are relevant to the question of how long it is reasonable to detain pending deportation, the risk of absconding and the risk that criminal offences will be committed if the person is released from detention are circumstances which it is legitimate for the Secretary of State to take into account.
  89. I was referred in this context by Miss Busch to Toulson LJ's judgment in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [54]:
  90. "I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, these are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is a product of his own making."

    I was also referred to the next paragraph, [55]:

    "A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."

  91. In the same case, Keene LJ said this at [79]:
  92. "I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so is some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding, how could detention be justified in order to achieve deportation, just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."

  93. In addition, Mr Chirico highlighted Mr Howell QC's observations on the question of offending in R (Sino), specifically the following passage at [61]:
  94. "Obviously the type of period after which it is increasingly difficult to justify any continuing detention will depend not merely on the risk of an individual absconding and the likelihood of his re-offending. It will also depend, for example, on the nature of any likely future offences and their consequences and how imminently any removal can confidently be predicted. It is unlikely, therefore, that there is a single period which is applicable in all cases with only certain specific exceptions. It is not for me to lay down any general guidelines. In approaching the application of the second Hardial Singh principle in this case, therefore, I have accordingly borne in mind what has been said in such other cases. But I have also borne in mind that the facts of the Claimant's case are not identical to the facts of any other case and what may (or may not) constitute a reasonable period of detention pending deportation needs to be considered carefully by reference to the specific facts of his case."

  95. As I understood it, there was actually no issue about the risk of absconding nor about the risk of re-offending, specifically in the case of the latter the need to consider the nature of any previous offending to include the seriousness of that offending. As I shall come on to show when I address the parties' respective submissions, although Miss Busch does not suggest that Mr Ramathami's previous offences as such make him a risk to the public, her position and the position of the Secretary of State is nonetheless that the fact that Mr Ramathami previously chose to work illegally with a false identity demonstrates that there is a risk of absconding and, along with that risk, the associated risk that he might again work illegally with a false identity.
  96. There was, however, an issue between Mr Chirico and Miss Busch in relation to other aspects of the passages in the judgments of Toulson LJ and Keene LJ in R (A). I refer here to what in certain of the authorities has been described as a 'failure to co-operate'. What became clear during the course of Mr Chirico's opening submissions was that he seeks to distinguish between what may be described as two different types of 'passive' failure to co-operate, on the one hand, and what may be described as 'active' failure to co-operate, on the other. As it developed during his opening submissions and then in the course of his closing submissions, Mr Chirico's submission became that there is, as he put it, a conceptual difference between various types of 'passive' behaviour which obstruct the Secretary of State in her efforts to remove a person, and 'active' behaviour which causes the Secretary of State to have to do things which result in delay and elongation of the person's detention. Mr Chirico submitted that, whereas 'active' behaviour which itself causes delay is a matter to which it is appropriate that weight be given, indeed substantial weight depending on the facts of a given case, 'passive' behaviour of all types should only ever be afforded limited weight.
  97. In support of this submission, Mr Chirico relied heavily on a section of Lord Dyson's judgment in R (Lumba) headed "Non-co-operation with return". I need, in the circumstances, to make fairly extensive reference to this section. It starts with the following at [122]:
  98. "The most common examples of non-cooperation are (i) a refusal by a person who does not have a valid passport to cooperate with the obtaining of travel documents to enable him to return and (ii) a person's refusal to avail himself of one of the Home Office schemes by which he may leave the United Kingdom voluntarily. Most of the discussion in the cases has centred on (ii)."

    It is apparent, therefore, that Lord Dyson was here dealing with what Mr Chirico described as 'passive' behaviour, and not with 'active' behaviour of the type to which Mr Chirico was referring in the submission which he ultimately came to make. Indeed, in his closing submissions, Mr Chirico expressly acknowledged that this was the case.

  99. I interject to observe that Mr Chirico explained that he felt constrained to make this acknowledgment, despite initial efforts to the contrary, by virtue of the fact that in R (Sino) Mr Howell QC quite clearly, and correctly in my view, approached matters on the basis that in the section headed "Non-co-operation with return" in R (Lumba) Lord Dyson was not dealing with 'active' behaviour. Mr Howell QC stated this at [50]:
  100. "The Supreme Court also considered in Lumba the significance of an individual's own conduct in contributing to the length of his detention in two respects: (i) delays occasioned by any legal proceedings that an individual brings; and (ii) delays occasioned by his refusal to return to his country of origin voluntarily. The Supreme Court did not specifically address other ways in which an individual's own conduct may contribute to the length of his detention. Specifically it did not consider how a refusal by an individual without a valid passport to co-operate in obtaining travel documents to enable him to return should be treated when assessing compliance with the second Hardial Singh principle. Nor did it consider what significance should be given in that connection to efforts an individual may make actively to obstruct the process of obtaining an ETD by supplying false or misleading information."

  101. The first of the types of conduct to which Mr Howell QC was referring in this passage (at (i)) was what was addressed by Lord Dyson in an earlier section of his judgment in R (Lumba), starting at [111]. It is immaterial for present purposes. As to the second type of conduct, in Mr Howell QC's category (ii), this equates to Lord Dyson's own category (ii) in R (Lumba). I leave aside for present purposes the sentence which begins with "Specifically it did not consider" since this concerns whether different weight should be afforded to different types of 'passive' behaviour. This is a matter to which I shall return in a moment. What matters for present purposes, and which is evident from the sentence beginning "Nor did it consider" with its reference to a person "actively" obstructing, is that Mr Howell QC was making the point that Lord Dyson had only been dealing with 'passive' behaviour, as Mr Chirico would characterise it.
  102. The fact that Mr Howell QC did not regard 'active' behaviour as having been addressed by Lord Dyson in R (Lumba) is further underlined by the fact that Mr Howell QC then went on to address the situation identified by him as (ii) in [50] by saying this at [53]:
  103. "In relation to delays occasioned by an individual's refusal to return to his country of origin voluntarily where that is possible, the Supreme Court accepted that such a refusal may be relevant if a risk of absconding can properly be inferred from that refusal. The significance of such a refusal may also vary depending on whether there are any outstanding legal challenges to his deportation. Where there are not, however, as Lord Dyson put it at [128], 'the fact that the detained person has refused voluntary return should not be regarded as a "trump card" which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be...if the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited."

    He then referred, at [54], to there being an "apparent tension" between the Supreme Court's approach in relation to the two categories ((i) and (ii)) which he had identified in [50], observing that, whereas "a period of detention is largely to be disregarded in the case of a hopeless appeal", "it should not be similarly disregarded merely because it could have been brought to an end by a detainee agreeing to leave voluntarily", before, critically as I see it, continuing:

    "How then should a refusal by an individual without valid passport to co-operate in obtaining travel documents to enable him to return be treated when assessing compliance with the second Hardial Singh principle and what significance should be given to efforts that he may make to frustrate their acquisition by supplying false or misleading information?"

  104. Again leaving aside the distinction for the moment between the two different types of 'passive' behaviour which Mr Chirico's submission also makes, what seems to me to be abundantly clear is that Mr Howell QC, again quite rightly in my view, is here saying that Lord Dyson in R (Lumba) was not dealing with 'active' behaviour. This conclusion is further reinforced by what Mr Howell QC went on to say at [56]:
  105. "In my judgment the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may be well be longer than it will be in the case of individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). 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. …".

  106. I respectfully agree with everything which Mr Howell QC had to say in this passage. As I shall now endeavour to explain as briefly as I can, my agreement extends also to Mr Howell QC's approach of distinguishing not only as between 'passive' and 'active' behaviour but also as between the two types of 'passive' behaviour which Mr Chirico suggested were both dealt with by Lord Dyson in R (Lumba) in the section headed "Non-co-operation with return". I am referring here to the two types of conduct identified by Lord Dyson at [122] as categories (i) and (ii) respectively. I am quite clear, as was Mr Howell QC, that what Lord Dyson was dealing with at [123] to [128] was not conduct falling within (i) but was only conduct falling within (ii). It seems to me that this is made clear by the last sentence of [122] itself, and that Mr Chirico's suggestion to the contrary makes little sense. It is evident also, however, from the fact that Lord Dyson went on in the next paragraph, [123], to track the language used in his description of (ii). Thus, he said this:
  107. "It is common ground that a refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal. But I would warn against the danger of drawing an inference of risk of absconding in every case. It is always necessary to have regard to the history and particular circumstances of the detained person. What is, however, in issue is whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful."

    There is no mention of type (i) conduct here. Nor is there any such mention in the various passages from Lord Dyson's judgment (when in the Court of Appeal) in R (I) which follow.

  108. Lord Dyson then went on, at [125] and [126], to set out the passages from the judgments of Toulson LJ and Keene LJ in R (A) which I have myself set out above. He next explained, at [127], that:
  109. "It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect."

  110. This is consistent, as it seems to me, with the approach taken by the European Court of Human Rights in Massoud v Malta (24340/08 of 27 July 2010), a case cited by Mr Chirico, specifically at [67] where this was stated:
  111. "The Government blamed the applicant for his unwillingness to cooperate. However, assuming the Government were right in their allegation, the Court considers that it must have become clear quite early on that the attempts to repatriate him were bound to fail as the applicant had refused to cooperate and/or the Algerian authorities had not been prepared to issue him documents. Detention cannot be said to have been effected with a view to his deportation if this was no longer feasible (see Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009). Indeed, the Court notes that to date, a year and a half after his release, the applicant is still in Malta."

  112. It is consistent also with Ibrahim & Anor v Secretary of State for the Home Department [2010] EWHC 764, in which Burnett J (as he then was) stated as follows at [52]:
  113. "Removals to most countries present few logistical difficulties. It is always necessary to secure the cooperation of an individual, at least if he has no valid passport. That is because biographical data are required to obtain a temporary travel document and to ensure that the receiving country will accept the deportee. No return, enforced or voluntary, can be achieved without a travel document of some sort. A person liable to removal will have little to complain about if he is detained for some months whilst he refuses to provide the data necessary as a first step to effect his removal. Thereafter, removal to most countries will follow very quickly. There are nonetheless destinations which present more difficulty. The Secretary of State must be allowed a reasonable period to make the necessary arrangements. In a case where the impediment arises from disorder in the receiving country, the task of predicting when conditions will improve and stabilise sufficiently to allow forced returns is an imprecise exercise. It may sometimes be possible to identify a trend which enables a timescale to be predicted. In other circumstances the disorder or conflict can end relatively suddenly, not least for political reasons. Yet there must be a limit to the period during which someone can be detained, albeit judged by reference to the facts of an individual case, when the grounds for believing that enforced removal will be possible rest on a hope, and little more, that the security situation in the receiving country will improve. Otherwise for practical purposes the detention becomes indefinite and assumes the almost exclusive purpose of applying pressure on the detainee to leave voluntarily. That is not the purpose for which the power to detain was conferred."

  114. The situation described by Lord Dyson at [127] and in Massoud and Ibrahim is not, however, relevant in Mr Ramathami's case.
  115. Lord Dyson then went on to deal with the situation where a person refuses to return voluntarily and has issued proceedings challenging his or her deportation. In that situation, as Lord Dyson explained at [127], "then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse)" and "his refusal to accept an offer of voluntary return is irrelevant".
  116. This is to be contrasted, however, as explained at [128], with the case where there is no legal challenge (Mr Ramathami's case at the relevant time). As to this, Lord Dyson stated as follows:
  117. "Here, the fact that the detained person has refused voluntary return should not be regarded as a 'trump card' which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), 'the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.' If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them."

  118. I am confident that nothing which Lord Dyson was here stating had as its focus the type (i) situation, where a person who does not have a valid passport has refused to co-operate with the obtaining of travel documents to enable him or her to return. I do not, therefore, accept Mr Chirico's submission that the category (i) type of case has necessarily to be given the same limited weight as the category (ii) type of case. I do not consider that Lord Dyson was saying in R (Lumba) that that is the position as, in my view and as I have explained at some length, Lord Dyson was not addressing the type (i) type of case. As can be seen from the passage at [56] set out above, specifically the sentence beginning "Thus in my judgment it is likely", that was the view taken by Mr Howell QC in R (Sino), and it seems to me that it was also the view which was taken by Irwin J in R (Amougou-Mbarga) v Secretary of State for the Home Department [2012] EWHC 1081 (Admin).
  119. In that case, as Miss Busch explained, the claimant, a Cameroonian, argued that his detention from October 2010 to March 2012, when he was finally deported to Cameroon, had been unlawful. The context in which his claim was brought was that he had entered this country in 1999 using a forged document and he had subsequently been convicted of a number of offences, including using a false instrument and blackmail. It was, indeed, as in Mr Ramathami's case, at the end of a sentence of imprisonment that the claimant was taken into immigration detention, having been served with a deportation order. That was in 2008 and for the next two years or so, until October 2010, when he finally admitted that he was from Cameroon, he repeatedly tried to frustrate removal by denying his identity and nationality. His damages claim related to the period after that, when he conceded that he was from Cameroon, his contention being that from that point the Secretary of State should have immediately either deported him or released him.
  120. Irwin J dismissed the claim and, in setting out the law, referred, at [40], to R (Lumba), before going on to say this at [41]:
  121. "In my judgment a failure to co-operate falls to be distinguished from a deliberate campaign of misinformation and deception. It seems to me the two are to be regarded differently. I note that this was the view taken by John Howell QC sitting as a deputy High Court Judge in R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin). It was his view that the decision of the Supreme Court in Lumba does not go so far as to exclude regard to the contribution 'that a detainee's conduct may make to the length of his own detention'. Further the learned deputy judge went on:

    'It is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of an individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain [a travel document] by supplying false or misleading information'."

  122. Mr Chirico suggested that Irwin J was wrong in apparently not appreciating that the first sentence of the passage quoted from Mr Howell QC's judgment in R (Sino) at [56] was dealing with a type (i) case. Mr Chirico, therefore, submitted that Irwin J ought to have regarded the first sentence situation as being one in which only limited weight could be attributed to the conduct described. I do not agree. Irwin J was right, as I see it, not only to recognise the distinction drawn by Mr Howell QC between 'passive' and 'active' behaviour, as demonstrated by the first sentence of [41], but also to recognise that the type of 'passive' behaviour described by Mr Howell QC in the passage which Irwin J quoted was type (i) conduct and, as such, not the conduct which Lord Dyson in R (Lumba) was addressing at [123] to [128].
  123. I acknowledge, of course, that the facts of R (Amougou-Mbarga) were somewhat extreme. This is made clear from [43]:
  124. "It is clear that consideration of a claim for wrongful detention must closely reflect the facts and circumstances of the individual case. The facts here are striking. This is not merely a case of refusal to co-operate with removal. Against a backdrop of repeated criminal offending involving deception, this is story of gross repeated deception perpetrated by the Claimant to avoid removal. That deception has been successful in the past in confusing the authorities and in defeating his deportation, as outlined above. In my judgment, this casts a shadow not merely over the period before he relented and acknowledged his Cameroonian nationality. This history of deception had an important effect, as it was bound to do, on events after October 2010. The Claimant had lied so long and so successfully that the authorities were entitled to feel that he might be attempting to deceive them again. There was an obvious risk that they might attempt once more to deport him to the Cameroon, only to find that he went through another volte face, denied he was Cameroonian and achieved another humiliating and expensive return to the UK."

    Mr Chirico highlighted, in particular, the facts that the claimant in that case was convicted of three separate dishonesty offences, together with bail offences, that he had entered this country unlawfully on at least two occasions, that he had sought to resist his removal on repeated occasions by the adoption of at least four identities (two French, one Cameroonian-Gabonese, and one Cameroonian), and that he had successfully resisted removal repeatedly, including by causing himself to be 'bounced back' both from Gabon and from Cameroon, the factor which Irwin J described as being "humiliating" to the United Kingdom. It was, therefore, perhaps not surprising that Irwin J concluded as follows at [44]:

    "In that context it seems to me, it was not merely reasonable but necessary to continue the detention of the Claimant until the authorities were clear they had documentation, evidence and arrangements in place which would ensure his effective removal. It seems to me that was what they were doing, using reasonable application and intelligence, from October 2010 until the date when the Claimant was successfully removed. Both before October 2010 and after, there were some period of administrative delay, but in the context of a complex and difficult case such as this, they did not in my judgment cross the line between administrative delay and unreasonable delay amounting to illegality … ."

  125. It does not follow, however, from the fact that R (Amougou-Mbarga) involved somewhat extreme facts that I should disregard the decision, particularly given that I have regard to it, in any event, only because of what is stated by Irwin J, correctly in my assessment, in relation to the applicable legal principles. I obviously acknowledge that every case will depend ultimately on its own facts. Different cases will fall in different places along what is clearly a spectrum. Every case will entail obstruction since it will only be where somebody is refusing to do what the Secretary of State would like that person to do, which is leave the country, that the 'administrative' detention powers need to be used at all. However, there is a qualitative difference between merely refusing to leave, on the one hand, and 'active' behaviour entailing the kind of behaviour seen in R (Amougou-Mbarga), on the other. These are cases at some distance apart from each other on the spectrum, and it is obviously right that there should be a different amount of weight attributed to them in view of their differences. It does not follow, however, that the same weight should be given to the range of different cases which are likely to fall in different places along the spectrum. As Lord Dyson demonstrated in R (Lumba) itself, there is, for example, a difference between a 'passive' case of a person refusing to leave voluntarily who makes a legal challenge and a 'passive' case where there is no such legal challenge. In the former scenario, the refusal to leave voluntarily is unlikely to be relevant, whereas in the latter case it will have more weight, albeit still only limited weight. Similarly, as I see it, if the case is a 'passive' case of the sort identified by Lord Dyson at (i) in R (Lumba) at [122], it is likely that more weight will be afforded to the behaviour concerned than if it is a 'passive' case of the sort identified by him in his category (ii). Again, however, it will depend on the facts of the particular case because not all cases will be the same even within the various categories. There may be aggravating features and there might, equally, be mitigating aspects. Some conduct may also be a mixture of the 'passive' and the 'active', perhaps depending on over what period of time a person's behaviour is being considered. I do not accept that Mr Chirico can be right when he submitted that, as he put it, the "only conceptual difference" is as between the 'passive' and the 'active'. It seems to me that this represents far too sweeping an approach, and that any assessment has to be rather more subtle and nuanced. It follows that I cannot accept Mr Chirico's submission that only limited weight should ever be given to 'passive' behaviour of whatever type, and specifically that limited weight should be attributed to the conduct identified by Lord Dyson in both (i) and (ii) at [122] in R (Lumba).
  126. Mr Chirico similarly suggested that R (Sino) was a more extreme case than the present case. He pointed out this was a case in which Mr Howell QC decided that the detention had been unlawful from the very outset and that this had remained the case for its five year duration. It was a case in which, as Mr Chirico also stressed, serious findings were made that there was a "high risk of [Mr Sino] committing further criminal offences if released from detention and there always has been" ([114]), and that there was a "basis for real concern that, if continued, his offending may become more serious in its impact on others" ([115]). It was also found that Mr Sino "has also been, and remains, very likely to try to abscond" ([118]). Further, it was decided that Mr Sino had "provided the Secretary of State with inconsistent and false information about himself. [… he] deliberately supplied information about himself to the Secretary of state which he must have known to be untrue and […] he did so in order to frustrate attempts to remove him from this country" ([174]). Mr Chirico relied, in particular, on the fact that Mr Howell QC's decision was that "the Secretary of State ha[d] not shown that there was ever any realistic prospect that the Claimant would co-operate in facilitating his deportation" ([199]), and that, absent any realistic prospect of other means of obtaining "sufficient information and evidence in sufficient time to enable the Claimant to be deported within a reasonable period", his detention was unlawful. This was despite the fact that the possibility of such information coming to light at some point could not be excluded ([200]). Mr Chirico's submission, which I shall come on to address later, was that the same result should be reached in the case of Mr Ramathami.
  127. Hardial Singh: a recap

  128. Lastly on this topic and really by way of recap, Miss Busch referred to a very recent decision, which she suggested was particularly useful in drawing together the appropriate principles, namely R (Chuck) v Secretary of State for the Home Department [2015] EWHC 1103 (Admin). This case involved a claimant who had been convicted of making a false VAT statement in 2007 and who was subsequently also convicted of theft in 2010. In March 2012, after his release from prison, he was detained in immigration detention. This is where he has remained for now over three years, consistently claiming to be a British citizen but equally consistently failing to provide any evidence in support of that claim, and with the Secretary of State believing him to be Nigerian. In late 2014, the claimant was interviewed by the Nigerian authorities, who said that they knew who he was, but who failed to provide the Secretary of State with any further information concerning him.
  129. HHJ Walden-Smith (sitting as a Deputy High Court Judge), in rejecting his application for permission to bring judicial review proceedings, summarised the principles which she considered "can be gleaned from the various authorities", in particular R (Lumba) and R (MH). I gratefully adopt her summary at [25], as follows:
  130. "(i) there can be a realistic prospect of removal without it being possible to specify or predict the date by which removal can reasonably be expected to occur and without any certainty that removal will occur at all; there is no 'outer' limit on the reasonable period (MH);

    (ii) the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors (MH);

    (iii) the risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it would become a trump card (Lumba);

    (iv) the weight to be given to time taken up by an appeal depends on the facts but much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one (Lumba);

    (v) a detainee who will not comply with the process of obtaining emergency travel documents or other requirements of detention and is doing everything he can to hinder the deportation process may reasonably be regarded as likely to abscond (Lumba; MH);

    (vi) refusal of voluntary return does not necessarily permit an inference of risk of absconding (Lumba);

    (vii) where return is not possible (for reasons that are extraneous to the person detained), the fact that the detained person is not willing to return voluntarily cannot be held against him, because his refusal has no causal effect (Lumba); however, where the detainee has failed to bring his own detention to an end when he could, then that is a relevant matter. …

    (viii) even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the Secretary of State's wish to detain (Lumba);

    (ix) there is no maximum period after which detention becomes unlawful (Lumba; MH);

    (x) it is not enough to found a claim for damages for unlawful detention to demonstrate in retrospect that some part of the statutory process had taken longer than it should have done;

    (xi) the risk of re-offending is a relevant factor as it goes to both the risk of absconding and evading prosecution as well as public protection (Lumba); however, the detainee cannot be detained simply to avoid the risk of further offending, as such detention would not be for the purpose of deportation. …".

  131. I observe, only really in passing, that HHJ Walden-Smith cited in (vii), with apparent approval, R (Kajuga) v Secretary of State for the Home Department [2014] EWHC 426, in which HHJ Blackett (sitting as a Deputy High Court Judge) observed, at [18], that it is "a matter of common sense that if a person obstructs the deportation process and fails to cooperate with the Secretary of State then the 'reasonable period' will be longer and probably much longer". In the light of the authorities considered earlier, it may be that this is slightly too sweeping an observation.
  132. Published policy

  133. Mr Chirico pointed out that a failure by the Secretary of State to follow her own published policy constitutes an error of law which entitles the court to quash the decision or grant some other appropriate remedy.
  134. Miss Busch did not take any issue about this and, consistent with what was decided by the Supreme Court in R (Kambadzi) (see, for example, Lord Hope in the majority at [36]), I proceed on this basis.
  135. Accordingly, it is relevant, as Mr Chirico submitted, to have regard to the Secretary of State's policy on detention when assessing (i) whether detention is for a reasonable period in all the circumstances; and (ii) whether the Secretary of State has acted with due diligence.
  136. The relevant policy is set out in Chapter 55 of the Enforcement Instructions and Guidance ('EIG'), in a section headed "Detention and Temporary Release". I need not set out everything, not least because Miss Busch confirmed during the course of the hearing that the Secretary of State's position was not that Mr Ramathami had committed what the policy describes as "more serious offences".
  137. Relevant provisions include, however, the following:
  138. (1) 55.1.1 (General):

    "In the 1998 White Paper "Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum" it was made clear that the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention (see 55.20 and chapter 57). …".

    (2) 55.1.3 (Use of Detention):

    "Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. …".

    (3) 55.3.A (Decision to detain-CCD cases):

    "Less serious offences
    To help caseworkers to determine the point where it is no longer lawful to detain, a set of criteria are applied which seek to identify, in broad terms, the types of cases where continued detention is likely to become lawful sooner rather than later by identifying those who pose the lowest risk to the public and the lowest risk of absconding. These provide guidance, but all the specific facts of each individual case still need to be assessed carefully by the caseworker. As explained above, where the person has been convicted of a serious offence, the risk of harm to the public through re-offending and risk of absconding are given substantial emphasis and weight. While these factors remain important in assessing whether detention is reasonably necessary where a person has been convicted of a less serious offence, they are given less emphasis than where the offence is more serious, when balanced against other relevant factors. Again, the types of other relevant factors include those normally considered in non-FNP detention cases, for example, whether the detainee is mentally ill or whether their release is vital to the welfare of child dependants.

    (4) 55.3.2.11:

    "Those assessed as low or medium risk should generally be considered for management by rigorous contact management under the instructions in 55.20.5. Any particular individual factors related to the profile of the offence or the individual concerned must also be taken into consideration and may indicate that maintaining management by rigorous contact management may not be appropriate in an individual case. In cases involving serious offences on the list at 55.3.2.1 above, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences."

    Mr Ramathami's position (in summary)

  139. Mr Ramathami's case is that it was or should have been apparent to the Secretary of State that there were insufficient prospects of his removal within a reasonable period, having regard to all relevant factors, and so his continued detention after 31 December 2010 was unlawful by reference to the third of the Hardial Singh principles as summarised by Dyson LJ in R (I). Mr Chirico acknowledged that no separate issues arise in relation to Article 5, and in these circumstances I do not propose in this judgment to deal with Article 5 separately. His submission was that Article 5, however, "informs the lawful approach to the third Hardial Singh principle", and "that a breach of that principle would lead inevitably to a breach of Article 5".
  140. Mr Chirico clarified that, in advancing his claim, whilst Mr Ramathami maintains that he comes from Burundi, it is nevertheless accepted by him that the Secretary of State was entitled throughout the period of his detention to rely upon the fact that the Asylum and Immigration Tribunal had determined that Mr Ramathami is not Burundian, as well as to conclude that Mr Ramathami had not provided any proper evidential or legal basis to require that those findings be displaced.
  141. Mr Chirico went on to explain that, on the facts of the present case, the second of the Hardial Singh principles does not add to the third principle on which Mr Ramathami primarily relies. He made it clear, however, that, in addition to the third principle, Mr Ramathami also alleges that, in detaining him, the Secretary of State acted contrary to the fourth Hardial Singh principle in failing to act with reasonable diligence and expedition to effect Mr Ramathami's removal.
  142. Mr Ramathami's case, in summary, is that by 31 December 2010 the Secretary of State had, as Mr Chirico put it in his skeleton argument, "exhausted her realistic options for documenting" Mr Ramathami. She had, again as Mr Chirico put it, "done all that she could to pressurise [Mr Ramathami] into complying further with the attempt to document him", and she either did realise or should have realised that Mr Ramathami "would not provide her with the further information she wished within a reasonable time". Mr Chirico added that "those processes of enquiry which were still ongoing carried little or no prospects of success", and "that any 'fresh ideas' which [the Secretary of State] might come up with carried insufficient prospects of leading to successful documentation (and were, in any event, far too late to justify an extension to the reasonable period of detention)". Lastly, Mr Chirico submitted that Mr Ramathami was not at risk of re-offending and absconding, and as such he ought to have been made the subject of rigorous contact management in line with the Secretary of State's own stated policy, rather than kept in continued detention.
  143. The Secretary of State's position (in summary)

  144. The Secretary of State's case entails three main propositions, as set out in Miss Busch's skeleton argument.
  145. First, Miss Busch submitted that it needs to be borne very much in mind that Mr Ramathami is somebody who entered this country illegally, claiming asylum on the basis that he came from Burundi when he did not, and then adopting a false identity and working unlawfully before being convicted and sent to prison. This is a case, therefore, Miss Busch submitted, where the Secretary of State was entitled to conclude that, if Mr Ramathami were released from detention, there was a risk that he would abscond and/or re-offend. In this context, Miss Busch submitted that the fact that Mr Ramathami has not absconded or offended since being released on bail on 11 July 2011 is immaterial since the Secretary of State had to make an assessment at a time when Mr Ramathami was in detention and, therefore, looking to what in the event happened does not assist.
  146. Secondly, it is the Secretary of State's position that it was Mr Ramathami's obstructive behaviour that was "the sole barrier" to her obtaining the documentation required for his deportation, and that it was the difficulties encountered in obtaining such documentation which, therefore, meant that Mr Ramathami continued to be detained. Miss Busch submitted that, in these circumstances, the Secretary of State was justified in detaining Mr Ramathami for longer period than might otherwise have been the case. In support of this submission, Miss Busch relied on Toulson LJ's observation in R (A) at [54], in a passage which I have previously set out, that "there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once". She submitted that the present case falls into the latter category and so involves loss of liberty which was of Mr Ramathami's "own making".
  147. Miss Busch relied also on Sino, Amougou-Mbarga, Chuck and Kajuga in support of this submission, contending that irrespective of whether the present case is to be regarded as a 'non-co-operation' case or as one involving a 'deliberate campaign of misinformation and deception', the relevant "reasonable period" has necessarily to be extended.
  148. Thirdly, Miss Busch submitted that the evidence demonstrates that the Secretary of State "made real, consistent and vigorous efforts" to identify Mr Ramathami's country of origin and to obtain the documentation required to enable him to be deported. Those efforts, she submitted, persisted right up until 11 July 2011. There was, in short, Miss Busch submitted, a realistic prospect of removal throughout the relevant period. Accordingly, in Miss Busch's submission, there is no question of the Secretary of State being in breach of the Hardial Singh principles or of Article 5.
  149. Discussion

    Preliminary

  150. I turn now to address the parties' respective submissions in more detail and by reference to the evidence as well the appropriate legal principles.
  151. In doing so, I have in mind that my task in this case is not limited to reviewing the Secretary of State's decision to detain Mr Ramathami and to continue to detain him, but to decide for myself whether or not Mr Ramathami's detention is lawful. This point was made by Toulson LJ (as he then was) in R (A) at [62]:
  152. "…Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. 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)."

    The same point was made by Keene LJ in the same case at [71]:

    "It is to my mind a remarkable proposition that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the courts of this country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the court itself to determine whether such a reasonable period has been exceeded. That has been the approach adopted in practice in the domestic cases to which we have been referred: Hardial Singh, R (I) v. Secretary of State for the Home Department and, to my mind, Khadir …. ."

    Keene LJ added this at [75]:

    "…Of course, the court will in most cases attach considerable weight to any assessment emanating from a government department about the progress of negotiations with foreign governments or with airlines about securing the return of deportees. But the ultimate decision is, in my judgment, for the court. I therefore would reject the Secretary of State's submission as to the limited role of the court in cases such as this."

  153. As Richards LJ made clear in R (LE) v Secretary of State for the Home Department [2012] EWCA Civ 597, at [29] (specifically, i), ii), iii) and viii)), the position is different where what is being considered by the court is not the reasonableness of the period of detention and the application of the Hardial Singh principles, but whether the detention was in accordance with a Home Office policy. In the latter case, the Secretary of State's decision is subject to review under normal Wednesbury principles.
  154. It is with these considerations in mind that I come on to consider: first, the factors which are relevant to the reasonable period of Mr Ramathami's detention; and, secondly, the prospects of Mr Ramathami's removal.
  155. Reasonable period

  156. Mr Chirico's and Miss Busch's submissions covered essentially similar ground. Unsurprisingly, however, Mr Chirico and Miss Busch took rather different stances in relation to that ground.
  157. Mr Chirico began by making the point that by 31 December 2010 Mr Ramathami had already spent over sixteen months in immigration detention, and that this was three times as long as he had spent in custody owing to his criminal conviction. He suggested that any assessment of the reasonable period for which he could be detained must deal with the likely future period cumulatively with the long period already spent in immigration detention.
  158. Miss Busch agreed with this. As she put it, the period of time for which a detainee has been detained as a whole needs to be looked at. She made the point that nonetheless in the present case it is accepted on Mr Ramathami's behalf that the Secretary of State acted lawfully in detaining him for the period between 14 August 2009 (after his release from prison and when he was taken into immigration detention) and 31 December 2010 (or thereabouts). She submitted that it follows also that Mr Ramathami accepts that the Secretary of State made appropriate efforts to 'document' and remove Mr Ramathami during that period.
  159. Mr Chirico did not disagree with this, and nor could he. It is clear, in the circumstances, that the relevant question for present purposes is whether the Secretary of State was justified in detaining Mr Ramathami for the seven-month period ending with Mr Ramathami's release from detention on 11 July 2011. As Miss Busch pointed out, this is not a particularly long period. However, it was still a period when Mr Ramathami was deprived of his liberty. It is, therefore, in truth, a not insignificant length of time. It is also a period which needs to be viewed in its proper context, coming as it did after Mr Ramathami had already spent sixteen months in immigration detention.
  160. The key controversy between Mr Chirico and Miss Busch concerned the Secretary of State's concern that, were Mr Ramathami to be released from detention, he would abscond or re-offend, together with what Miss Busch described as Mr Ramathami's lack of co-operation which, she suggested, went beyond merely his refusal to leave the United Kingdom voluntarily and, as such, is a factor to which more than just limited weight should be attributed.
  161. Focusing in the first place on the risk of absconding or re-offending, as previously mentioned, Miss Busch's essential submission was that the Secretary of State was wholly justified in taking account of the fact that Mr Ramathami, having entered this country illegally, had claimed asylum on the basis that he came from Burundi when the indications were that this was a lie, and had then gone on to adopt a false identity and work unlawfully. This, Miss Busch submitted, formed what in her closing submissions she termed "part of a pattern".
  162. Against this, Mr Chirico submitted that there was no real risk that Mr Ramathami would re-offend if he were to have been released after 31 December 2010. Mr Chirico highlighted, in particular, how Mr Ramathami's only offending was his illegal working for which he was convicted on 30 April 2009. Therefore, Mr Ramathami did not, Mr Chirico submitted, have a substantial offending history. Mr Chirico also pointed out that, without, as he put it, minimising the seriousness of Mr Ramathami's offending, it was not at the higher end of seriousness, as recognised apparently by certain remarks made by the sentencing judge. Nor, Mr Chirico submitted and Miss Busch accepted, did Mr Ramathami's offending carry a high, or even a moderate, risk of harm to any individual. In any event, Mr Chirico suggested, there was no significant risk of Mr Ramathami repeating his offending, not least because the Secretary of State had granted him provisional accommodation and so-called 'section 4' support, and Mr Ramathami was hardly likely to want to jeopardise his receipt of that assistance.
  163. It was similarly Mr Chirico's submission that there was insufficient risk that Mr Ramathami would abscond to justify a lengthy period of detention, and still less a lengthy further period of detention. Mr Chirico suggested that Mr Ramathami should instead have been dealt with through close 'contact management' such as tagging, which would have been in line with the Secretary of State's Chapter 55 policy. There was no justification, Mr Chirico submitted, in the Secretary of State maintaining Mr Ramathami's detention, bearing in mind that he had not absconded during the eight years between his arrival in the United Kingdom and his arrest in early 2009. In particular, Mr Chirico highlighted how Mr Ramathami kept to his reporting obligations for almost two years after his appeal rights had became exhausted, and so at a time when he was removable or detainable. Mr Chirico contrasted Mr Ramathami's position with many other people who, as he put it, either "vanish or lie low". Aside from apparently missing a solitary reporting requirement in May 2007, Mr Chirico stressed how Mr Ramathami had unfailingly complied with requirements that he report. This was despite not being subject to any 'contact management' during this period, indicating, Mr Chirico submitted, that if he were to have been released from detention and made the subject of 'contact management', there would have been even less prospect or risk that Mr Ramathami would have complied with future reporting requirements. Mr Chirico also made what he described as a "jury point", namely that Mr Ramathami has not absconded since his release from detention on 11 July 2011, so indicating that he was not the absconding type.
  164. In response to these various submissions, Miss Busch submitted that the Secretary of State was nonetheless entitled to take the view that there was a real risk that Mr Ramathami would re-offend if released from detention. She made the point, in particular, that the fact that Mr Ramathami had been granted 'section 4' support was somewhat beside the point since, if he were to have absconded on his release from detention, Mr Ramathami would not have actually received the support. Miss Busch submitted that, for this reason if no other, the risk of re-offending has (and had) to be considered together with the risk that Mr Ramathami might abscond. As Miss Busch pithily put it, if Mr Ramathami "did abscond, he would have no lawful means of support". This is why, Miss Busch submitted, the Secretary of State was justified in taking the view that there was, accordingly, a risk that Mr Ramathami would repeat his previous offending behaviour by adopting a false identity and working illegally.
  165. I agree with Miss Busch about this. It seems to me that it is unrealistic to have expected that the Secretary of State should have taken any more sanguine a view on this aspect. On the contrary, in my assessment, given Mr Ramathami's previous offending, the risk that he would re-offend and abscond was not easily discounted. I agree also with Miss Busch when she submitted in her closing submissions that the "pattern" to which she referred included also Mr Ramathami's conduct in lying about coming from Burundi (including the lie about coming from Burundi but having lived in Kenya during his conversation with E. Farnes on 16 September 2009) and in failing to co-operate (the matter which I will address in a moment). In my view, Miss Busch is correct as well to remind me that, although Mr Ramathami's offending did not pose a direct risk of harm to the public, it was nonetheless offending of a type which undermines the system of immigration control, a system which the Secretary of State is under a duty to maintain and which she is obviously entitled to regard as being particularly important.
  166. It is also right to bear in mind that, whilst Mr Ramathami did not abscond between his arrival in this country in 2001 and his being sentenced to imprisonment in 2009, the fact is that at some point after being granted temporary admission in March 2007 he adopted a false identity and commenced working illegally. I agree with Miss Busch that this is a significant feature of Mr Ramathami's case and that the Secretary of State was justified in giving it due regard in assessing the risk that he would abscond if released.
  167. As to Mr Chirico's "jury point", the fact that Mr Ramathami has not absconded since his release from detention on 11 July 2011 really goes nowhere. First, the Secretary of State could only act on the basis of the information which was available to her at the time. She could not, therefore, have known, at least without a crystal ball, that Mr Ramathami would, in the event, not choose to abscond. Secondly, I agree with Miss Busch that it is hardly surprising that Mr Ramathami has not absconded since he has what Miss Busch called "a motive" not to abscond, namely the present proceedings and the possibility that he might recover damages from the Secretary of State. As Mr Chirico essentially recognised, there is no weight to be placed on his "jury point".
  168. Mr Chirico went on to submit in his closing submissions that cases such as R (Sino) involved people who have committed serious offences. He suggested that, in the circumstances, the risk of re-offending, in the context of the risk of absconding presented by Mr Ramathami, was "not a significant factor". Although I agree that obviously more serious offending presents a higher risk of re-offending, and of doing so in a serious way, I nonetheless cannot agree with Mr Chirico that Mr Ramathami's offending should, in effect, be disregarded, and what I consider to be the associated risk of absconding effectively discounted accordingly.
  169. Nor do I consider it right for Mr Chirico to suggest that the Secretary of State is to be criticised for not releasing Mr Ramathami and not making him subject to 'contact management'. I acknowledge that this was something which the Secretary of State had to consider, not least because her own (Chapter 55) policy required her to do so. It is clear, however, that the Secretary of State did just this when carrying out regular detention reviews. The view reached on each of these occasions was that Mr Ramathami was not suitable for 'contact management' because of the risk that he would abscond. That this was an aspect which was given proper consideration is, as Miss Busch submitted, illustrated by the fact that in the detention review carried out in early June 2011 Deborah Schofield raised the possibility that Mr Ramathami might be released and there was, in consequence, a referral to the Strategic Director, whose decision was that there should not be a release subject to 'contact management'. I remind myself that I am not presently engaged in a judicial review of the Secretary of State's decision on that occasion, nor on the occasions of the previous detention reviews, since my task is to decide for myself whether Mr Ramathami's detention was lawful. However, in my judgment, for the reasons which I have set out above, the Secretary of State was justified in reaching the view which she did concerning Mr Ramathami's risk of re-offending and the connected risk that he might abscond in the event that he were released from detention.
  170. This leaves three other matters which, in line with Mr Chirico's and Miss Busch's submissions, I need to consider: Mr Ramathami's lack of co-operation; Mr Ramathami's medical condition; and the significance or otherwise of the various bail applications which Mr Ramathami made but which (save for the last one) failed. I shall deal with the second and third before then going on to address the first.
  171. As to Mr Ramathami's medical condition, Mr Chirico highlighted how Mr Ramathami had a series of medical problems whilst he was in detention, suffering in June 2010 with a stomach illness and the following month being diagnosed with a "very congested larynx and pharynx" thought to have been caused by acid reflux and long-term use of asthma inhalers. Mr Chirico also referred to how Mr Ramathami had been diagnosed in late 2010 as suffering from labyrinthitis, causing dizziness and nausea and recurring approximately twice a month. Mr Chirico did not suggest that these illnesses were necessarily caused by Mr Ramathami's detention alone. He did, however, submit that the fact that Mr Ramathami was suffering from these various conditions aggravated the impact of his confinement in a detention centre. This, he suggested, together with Mr Ramathami's reduced control over his food, was another factor which, as he put it, tended to reduce the 'reasonable period' for which he could be detained. I have to say that I do not regard this as a very compelling factor, and, in fairness, in his closing submissions, it was apparent that Mr Chirico did not either. As Miss Busch pointed out, it is the Secretary of State's (Chapter 55) policy that only those persons suffering from a medical condition which cannot be satisfactorily managed in detention are unsuitable to be detained by reason of that condition. That makes perfect sense to me. Mr Ramathami's case is a very long way from being such a case. There is nothing which I have seen to show that his conditions could not be, and were not, satisfactorily managed in detention.
  172. As to the bail applications, Mr Chirico cautioned against reliance on the findings made by judges at the various bail hearings which involved Mr Ramathami. He pointed out, correctly, that immigration judges at bail hearings heavily depend on the Secretary of State to set out fully and frankly the circumstances of a person's case. Mr Chirico added that Immigration Judges have no jurisdiction to consider the Hardial Singh principles, save insofar as they bear directly upon risks of absconding or offending. This was made clear by the Supreme Court in R (Lumba), where Lord Dyson said this at [118]:
  173. "… I accept the submission of Mr Husain that bail is not a sufficient answer to the fundamental objection that the exclusionary rule constitutes an impermissible restriction on judicial oversight of the legality of administrative detention. Paragraph 29 of Schedule 2 to the 1971 Act gives the First Tier Tribunal power to grant bail pending an appeal, but this is subject to the restrictions stated in paragraph 30. Paragraph 30(1) provides that an appellant shall not be released under paragraph 29 without the consent of the Secretary of State if removal directions are currently in force. There is nothing in the schedule which requires the tribunal to apply the Hardial Singh principles in deciding whether or not to grant bail and, in particular, to have regard to the past and likely future length of a detention. Bail is not a determination of the legality of detention, whether at common law or for article 5(4) purposes."

    Miss Busch did not quibble with any of this, and nor realistically could she. She did suggest that it was appropriate for a certain amount of weight to be given to the views of experienced immigration judges concerning the risk of absconding. Mr Devereux also explained that he thought that this was appropriate, making the point that in Mr Ramathami's case it was, he thought, "salient that Mr Ramathami was refused bail" as many times as he was "in the space of 12 months", and expressing the opinion that the Secretary of State was entitled, in such circumstances, to "have a degree of confidence" in her officials' decision making. I see some force in this. However, I do not consider that the point goes particularly far for the reasons given by Mr Chirico.

  174. I come on now to deal with the lack of co-operation point. Consistent with the submissions which he made in relation to the relevant authorities, addressed by me above at some considerable length, Mr Chirico's submission in his skeleton argument was that, as "a matter of law, a person's non-compliance with attempts to document him/her cannot in itself justify continued administrative detention". In the alternative Mr Chirico submitted that the present case is so unlike the kind of extensive "campaign of misinformation and deception" seen in R (Amougou-Mbarga) as to mean that only limited weight should be afforded to Mr Ramathami's behaviour. Miss Busch submitted that, on the contrary, this is a case in which significant weight should be given to Mr Ramathami's behaviour, which she described as being "the sole barrier" preventing the Secretary of State from obtaining the documentation required for his removal. She submitted that this justified Mr Ramathami's detention for a longer period than might otherwise have been warranted.
  175. I agree with Miss Busch about this. I agree specifically that Mr Ramathami's conduct, even if it was 'passive', adopting Mr Chirico's nomenclature, nonetheless falls, at a minimum, into the category described as (i) by Lord Dyson in R (Lumba) at [122] and probably entailed rather more than this. As such, for reasons which I have explained, it seems to me that Mr Ramathami's conduct is not conduct to which only limited weight should be attached. Equally, I agree with Mr Chirico that Mr Ramathami's case is not as extreme as the conduct in either R (Sino) or R (Amougou-Mbarga). Where precisely in the spectrum to which I have referred the present case comes is not especially easy to say. I have concluded, however, that Mr Ramathami's overall pattern of behaviour merits not insignificant weight. This behaviour entailed not merely lack of co-operation in the obtaining of travel documentation. It involved a lie that he came from Burundi, repeated consistently and despite a complete lack of evidence in support of his claim. It involved a lie being told to an immigration officer on 16 September 2009 when Mr Ramathami found himself confronted with the results of the Sprakab language analysis. It involved a further lie a couple of days after that, when Mr Ramathami must have appreciated that it was better if he maintained the simpler line that he was from Burundi and had not lived anywhere else. I do not consider that it matters whether, as Mr Chirico submitted, this was an episode which led the Secretary of State to act differently since what matters is that it shows that Mr Ramathami was practising deception. This is also, of course, demonstrated by the deception which led to Mr Ramathami serving a prison sentence. This is, in short, rather more than somebody refusing to leave voluntarily ((ii) in [122] in R (Lumba)), and somebody refusing to co-operate in terms of travel documentation ((i) in [122]). It is entirely legitimate, in my assessment, for the view to be taken by the Secretary of state that to a not inconsiderable extent the period spent in immigration detention by Mr Ramathami was his own doing and, as such, not something about which it is open to him to complain.
  176. Mr Chirico submitted that only 'active' conduct which can be shown to have caused the Secretary of State to have done something which she would not otherwise have done, with consequential delay, is relevant. Any other conduct, whether 'active' or 'passive', should, Mr Chirico submitted, be regarded as having only limited weight. As I have previously explained, I do not agree with Mr Chirico about this. In any event, in Mr Ramathami's case it seems to me that, in view of the deception in which he has engaged since arriving in this country some fourteen years ago, his behaviour (whether 'passive' or 'active' or, as I suspect, a combination of the two things) was such as to mean that the reasonable period as far as he was concerned had not come to an end by the time of his release on 11 July 2011.
  177. Prospects of removal

  178. Mr Chirico and Miss Busch were agreed that, as Mr Chirico put it in his skeleton argument, even if there was a real absconding risk or risk of re-offending in Mr Ramathami's case, and taken with the other factors also operating (including any failure to co-operate), this means that the relevant reasonable period had still to expire, the detention would nonetheless still be unlawful if there was an insufficient prospect of removal within that reasonable time. Mr Chirico, in fact, suggested in his closing submissions, that "the case hinges" on this issue.
  179. Mr Chirico's submission, in essence, was that, having regard to the steps which the Secretary of State had already taken by the end of 2010 and looking at the steps which apparently remained outstanding, the conclusion which should be reached is that there was no longer a realistic or sufficient prospect that she would be able to effect Mr Ramathami's removal within a reasonable time: R (MH) per Richards LJ at [64]-[66].
  180. Mr Chirico highlighted various features in this respect, beginning with the Secretary of State's attempts to have Mr Ramathami 'documented' by the Kenyan authorities. He made the point that it was only after Mr Ramathami had already been detained for six months that the Secretary of State referred his case to the Kenyan authorities on or around 18 February 2010. He went on to highlight how nothing came of the Secretary of State arranging for Mr Ramathami to be taken to the Kenyan High Commission on 20 May 2010 for a 'travel document interview'. Mr Chirico acknowledged, as he had to, that this was because Mr Ramathami refused to co-operate. His point was, however, that what matters is that the Secretary of State's efforts as regards the Kenyan authorities met with singular lack of success. He went on, in this context, to refer to how the Secretary of State subsequently wrote to the Kenyan High Commission again, on 11 June 2010, setting out why she considered that Mr Ramathami was Kenyan, yet this elicited no response.
  181. Similarly, Mr Chirico explained, there was no response to a further attempt to contact the Kenyan High Commission in a letter sent on 3 September 2010. As Mr Chirico pointed out, in a computerised file note that same day an immigration officer wrote that "there is not a lot more we can do with the Kenyan authorities until we are given further information to submit to the Kenyan authorities", something which the Secretary of State was going to struggle to provide as long as Mr Ramathami continued to refuse to co-operate with her. In similar vein, Mr Chirico referred to a Home Office file note on 25 October 2010 indicating that the Secretary of State was aware of difficulties in obtaining verification of Kenyan nationality by fingerprint checks. Mr Chirico then pointed out that, after the Secretary of State had obtained a copy of Mr Ramathami's fingerprints on 16 November 2010 and had sent that copy to Kenyan officials, no response was ever received. This was despite the Secretary of State chasing the Kenyan authorities on 26 November 2010.
  182. There was, as Mr Chirico pointed out, no further attempt made by the Secretary of State to contact the Kenyan authorities directly during the period when Mr Ramathami was detained. Mr Chirico submitted that the Secretary of State clearly was not expecting to hear back from the Kenyan authorities, at least certainly not any time very soon. This explains, he suggested, why she made no further attempts to chase the Kenyan authorities after November 2010. Indeed, Mr Chirico emphasised, it remains the position even now that the Secretary of State has still not had a response from the Kenyan authorities.
  183. Mr Chirico submitted that similar considerations apply to the Secretary of State's efforts to have Mr Ramathami 'documented' by direct application to, or contact with, the Tanzanian authorities. As he pointed out, the first contact between the Secretary of State and the Tanzanian authorities was in the summer of 2010. As far as I can see, this was in July, rather than the previous month, as suggested in Mr Chirico's skeleton argument, although nothing turns on this. Mr Chirico suggested that this was too late. However, I do not consider that this is a criticism which is warranted, it being clear enough why the Secretary of State considered that Mr Ramathami was from Kenya (in part, based on the Sprakab language analysis) and equally clear that it was only after the interview on 24 June 2010 that Tanzania was considered, the official from Burundi who met Mr Ramathami on that occasion suggesting Tanzania as Mr Ramathami's possible country of origin.
  184. Be that as it may, Mr Chirico then highlighted how, after an initial meeting between an FCO official and a Tanzanian official on 9 August 2010 and further contact during October 2010, nothing further appears to have been heard. This was despite the Secretary of State sending the FCO chasers on 30 November 2010 and again on 8 December 2010. There was, in particular, no further attempt to chase up either the FCO or the Tanzanian authorities during the time when Mr Ramathami was detained. He noted, in passing, that that appears also to have been the case since Mr Ramathami's release from detention.
  185. Mr Chirico made the point that these efforts as regards the Kenyan and Tanzanian authorities need to be seen in the context also of a continuing refusal by Mr Ramathami to co-operate. He submitted, specifically, that by 31 December 2010, the Secretary of State was, or should have been, aware that there was no or foreseeable prospect that, within a reasonable period of time, Mr Ramathami would give information to the Kenyan or Tanzanian (or, for that matter, the Burundian) authorities so as to enable the Secretary of State to 'document' him. Mr Chirico submitted that, as he put it, an "outside chance" that Mr Ramathami might change his approach did not justify a conclusion on the part of the Secretary of State that there was a realistic or sufficient prospect of removal within a reasonable time, bearing in mind that Mr Ramathami had already been in detention for almost sixteen months by this stage. Mr Chirico emphasised, in this context, that the Secretary of State needed to have in mind that Mr Ramathami had maintained his unco-operative stance despite his unsuccessful asylum appeals, his lengthy period of immigration detention, the removal from him of working privileges in August 2010, the various interviews with people from various countries. Mr Chirico suggested that the Secretary of State could not have thought that Mr Ramathami was about to change his stance and suddenly start co-operating.
  186. As to the various interviews in particular, Mr Chirico submitted that these had resulted in no progress. Accordingly, he suggested, the Secretary of State cannot have considered that they would lead to Mr Ramathami's removal. In relation to the visiting delegation of people from some East African countries which was intended to interview him in late 2009, Mr Chirico made the point that Mr Ramathami was not told where he was going and why he was to go there, and this is a matter which I have already addressed. What matters for present purposes is not why the interview did not take place, but simply that it did not take place and, as a result, nothing came of this initiative. Similarly, Mr Chirico submitted, the interview with Mr Jones, the 'British Africans in Government' representative, which took place on 21 December 2010, did not progress things and, significantly, was not repeated.
  187. Mr Chirico submitted that, in short, by the end of December 2010, nothing which the Secretary of State had done justified an assessment by her that removal was a realistic or sufficient prospect within a reasonable time. On the contrary, Mr Chirico submitted, the steps which had been taken and the lack of progress which had been achieved in relation to those steps must have indicated to the Secretary of State that there was no prospect at all that Mr Ramathami would be released in a timescale which was reasonable.
  188. Mr Chirico went on to submit that what followed, in the first half of 2011 leading up to Mr Ramathami's release, represented merely, as he put it in his skeleton argument, "last-ditch attempts to justify continued detention in response to the prospect that [Mr Ramathami] would mount a challenge to that detention". Mr Chirico was referring here to two things: the placing of advertisements in the Tanzanian and Kenyan press; and the making of contact with visitors to Mr Ramathami at Brook House.
  189. As to the Tanzanian advertisement, I have previously made it clear that I have some sympathy with Mr Chirico's submission that the evidence concerning this advertisement is not as good as it might have been. However, Mr Chirico accepted, quite rightly, that there is no reason to suppose that the advertisement was not placed. That is not really the issue. The issue is, rather, whether Mr Chirico is right to submit that it must have been appreciated by the Secretary of State that nothing was likely to come of placing the advertisement, and that, therefore, this was a step which demonstrates that the Secretary of State had essentially 'run out of ideas'. In my judgment, this was not the case. I accept Miss Busch's submission that the placing of the advertisement in the Tanzanian press was something which was done in the genuine expectation, based on success (albeit isolated) in the past in relation to another case. I am confident that the Secretary of State would not have gone to the expense of placing an advertisement simply so as to bolster her defence to a claim brought by Mr Ramathami for damages for unlawful detention. I consider that this conclusion is bolstered by the fact that, as Mr Chirico himself pointed out, as late as June 2011, consideration was being given to placing a similar advertisement in the Kenyan press. This did not, ultimately, happen, but the fact that the Secretary of State was considering placing a further advertisement suggests to me that she was under the impression that an advertisement might result in progress, even though by this stage there had not been a response in relation to the advertisement placed in the Tanzanian press a month or so earlier, in April 2011.
  190. This leaves Mr Chirico's reference to the Secretary of State's attempts to contact people who had visited Mr Ramathami whilst he was in detention. Mr Chirico pointed out, correctly, that these were attempts which were made only after the Secretary of State had received a letter before claim sent to her on 10 June 2011, in which reference was made to Mr Ramathami's intention to challenge the lawfulness of his detention. Mr Chirico submitted that the Secretary of State's attempts, which apparently ranged over some three weeks or so, culminated in a single, and wholly unsuccessful, visit to one person's house. Mr Chirico suggested that there was only ever, and at best, a minimal prospect that the Secretary of State's attempts would give rise to a successful release. It was not, as such, Mr Chirico submitted, a prospect which was sufficient to justify Mr Ramathami's further detention.
  191. Although I tend to agree with Mr Chirico in relation to this last submission concerning the Secretary of State's attempts to contact Mr Ramathami's visitors, I do not agree with his overall submission that there was little or no prospect by 31 December 2010 or at any point in the period from then until 11 July 2011, when he was released, that Mr Ramathami would be released in a reasonable period. On he contrary, I agree with Miss Busch that, as she put it in her closing submissions, the Secretary of State was continuing to treat Mr Ramathami's case as a "live case" which had not yet "reached the end of the road". I agree with her, in particular, that the fact that an advertisement had only recently been placed in the Tanzanian press and that consideration was being given to doing the same thing in the Kenyan press demonstrates that this was being treated as a "live case". I accept also that, although Mr Chirico might seek to characterise the Secretary of State's dealings with the Kenyan and Tanzanian authorities as having come to an end, the reality is that the Secretary of State had not yet given up on those dealings, with the Strategic Director referring specifically to "the result of some of the checks" being "still awaited" when deciding on 6 June 2011 that Mr Ramathami should remain in detention. This was a reference to the Tanzanian authorities probably rather than the Kenyan authorities, but either way the Strategic Director's approach shows that the case was not regarded as one in which the Secretary of State had, in effect, given up and taken the view that there was no longer a realistic or sufficient prospect of removal, still less that she was merely trying to bolster a defence to a threatened unlawful detention claim by Mr Ramathami.
  192. I agree, in sum, with Miss Busch's submission, in her skeleton argument and essentially repeated in her closing submissions, that from the start of Mr Ramathami's detention in August 2009 to the time when he was released, and critically in the period to which the present claim relates (31 December 2010 to 11 July 2011), the Secretary of State made concerted efforts to bring about Mr Ramathami's removal. Those efforts were thwarted by Mr Ramathami's attitude, but they were meaningful and it does not seem to me that there ever came a stage where the Secretary of State had, in effect, given up on effecting removal.
  193. I agree, in particular, with Miss Busch's submission that care needs to be taken, when considering a claim such as this, not to approach the case with the benefit of hindsight which the passage of time necessarily brings with it. This was the point made by Carnwath LJ in R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549, at [12]:
  194. "… 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. …".

    As I have previously explained, the Secretary of State could only act on the basis of the information which was available to her at the time. Similarly, she could only make an assessment on the prospects of Mr Ramathami being removed on the basis of the information which was available to her at the time.

  195. Therefore, although in retrospect it is not in dispute that the Secretary of State's attempts to 'document' Mr Ramathami were unsuccessful, and indeed even now the efforts directed towards the Tanzanian and Kenyan authorities have still to lead to anything, this cannot mean that, without more, the conclusion to be reached is that there were removal prospects which were not realistic or sufficient. I consider that this is the position even though there were contemporaneous indications that the Secretary of State was unclear where her inquiries of those authorities might lead. It might be different if it could be shown that the Secretary of State had no expectation that the inquiries would lead anywhere, but that does not seem to me to have been demonstrated in the documents which I have seen, and I see no reason to disbelieve what is stated in the various detention reviews about the Secretary of State still awaiting responses and so, implicitly, expecting that something might come of the inquiries which had been made.
  196. Accordingly, I agree with Miss Busch that, although Mr Chirico can make the various points which he did concerning the various steps taken by the Secretary of State, in each case highlighting that those steps failed to yield results, it would be wrong to conclude that, in the period with which Mr Ramathami's claim is concerned, the stage had ever been reached where there the prospects of his removal had ceased to be realistic or sufficient. I am satisfied that the Secretary of State had not reached that conclusion. More pertinently, perhaps, given that, as Keene LJ put it in R (A) at [75], "the ultimate decision" is mine, I am myself satisfied that there remained at all material times a realistic or sufficient prospect that Mr Ramathami would be removed. I make it clear that this is a conclusion which I have reached in relation to the entirety of the period from 31 December 2010 to 11 July 2011, and so to the period after 1 June 2011, when Mr Ramathami's legal representatives wrote the letter before claim to which I have referred, or the period after 6 June 2011 (not 14 June 2011, as referred to in Mr Chirico's skeleton argument), the date of the Strategic Director's decision to maintain Mr Ramathami's detention.
  197. Conclusion

  198. In all the circumstances, I conclude that the Secretary of State acted lawfully in maintaining Mr Ramathami's detention from 31 December 2010 to 11 July 2011. It follows that Mr Ramathami's claim must be dismissed.


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