ML (Morocco) v Secretary of State for the Home Department

LADY JUSTICE KING:This is an application for permission to appeal a refusal to grant permission for judicial review proceedings on 3 March 2015 by Nicholas Padfield QC sitting as a Deputy High Court Judge. The issue the subject of the judicial review is whether or not the detention of Mr L was unlawful as, as was argued on his behalf, there was never any reasonable prospect of his removal from the UK.

The brief facts are that the Appellant was born on 14 April 1985, it would appear, in Western Sahara. He entered this country in May 2003 on a forged French passport and was quickly arrested as a suspected illegal immigrant. He claimed asylum in June 2003, this application was dismissed the following year as he was non-compliant.

It is not necessary for the purposes of this short ruling to go into the detailed history of what ensued between 2005 and 2012, but it was marked by frequent convictions for criminal offences, it would appear at least 14 separate convictions for various offences including serious offences of robbery, criminal damage and drugs.

The applicant was also routinely an absconder and non-compliant with the terms of his being in this country. He was finally apprehended when he was arrested on 21 August 2013 for criminal damage and pleaded guilty to that offence at the Lavender Hill magistrates where was fined on 22 August 2013. After that, he was detained under the immigration powers.

One of the difficulties throughout the ensuing 29 months of his detention was the Appellant's frank non-compliance. He had a serious history of offending and a serious history of non-compliance. In addition he was diagnosed as being a schizophrenic, although fortunately he received proper and appropriate treatment for his mental illness whilst he was detained.

One of the problems, therefore, was the difficulty in relying on any of the information provided by the Appellant in relation to his history. Given the political situation in Western Sahara (whereby on the one hand there was the Polisario government in exile and on the other hand Morocco staking a claim to Western Sahara) considerable difficulties faced the Secretary of State in determining to which country he should be returned.

On 17 January 2014 an application was made for an emergency travel documents to Western Sahara. That application was refused on 11 March 2014.

Twice in the whole of the history the Applicant has indicated that he would voluntarily return "home", once in 2008 and then more recently in May/June 2014. He did not, however, specify where “home” was.

The stalemate effectively broke in November 2014 when the detention centre officers found amongst the Applicant’s possessions a certificate which appeared to relate to his father as coming from Western Sahara. This seemed to suggest or it was thought that what this meant, that if one of the parents was born in Western Sahara, their child may be accepted as a Moroccan national. This in turn meant that if the certificate proved to be either the father's birth certificate or an important document indicating that to be the case, the Secretary of State might be able to get emergency documents from Morocco.

Unsurprisingly it was noted in the reviews at the time that matters would have been able to be progressed much further and more speedily had the Applicant volunteered the certificate which had been available to him and in his possession at all times.

On 28 November 2014, that is to say at about the same time the certificate was found, judicial review proceedings were launched on behalf of the Applicant saying that his detention was unlawful as he was stateless and therefore there was no prospect of him being removed.

On 23 January 2015, notwithstanding the discovery of the certificate that I have already referred to, a fresh application was submitted with the certificate as new supporting evidence to support the provision of emergency documents from Western Sahara rather than Morocco.

On 3 March 2015 permission to apply for judicial review was refused by Mr Padfield QC. It is this application that the Applicant seeks permission to appeal today. In his judgment, Mr Padfield relied heavily on what was suggested to have been inquiries that were being made at that time to the Moroccan authorities. Nothing in the judgment tells me where that information comes from. It may be that at a full review the sources will be revealed, but certainly having read or certainly dipped into three very substantial lever arch files, I myself have been unable to find it. Mr Adams on behalf of the Secretary of State, who has been most helpful to the court, has not been able to direct me to any evidence that enquiries were being made to Morocco at this time. Accordingly, Mr Padfield refused permission.

On 10 March 2015 there was an appellant's notice. Meanwhile, on 1 April 2015 the Secretary of State followed up the application to Western Sahara. The reviews continued month by month.

It would appear that in May 2015 it was appreciated that an application would more properly have been made to the Moroccan consulate for emergency documents and that the reality was that there was never any prospect of emergency travel documents being provided from Western Sahara. It was now recognised that the January 2015 application was pointless as Western Sahara was not a state recognised by the UK government and the UK government would not be able to accept any documents issued by them.

It was in those circumstances that at the review hearing of 28 April 2015 a renewed consideration of either Algeria or Morocco was instigated, notwithstanding that they had by then had the document, the certificate, since November 2014. Finally, it would appear in either May or early June an application was made for emergency travel documents this time to the Moroccan consulate.

On 21 July 2015 Elias LJ refused permission on paper. He did not have the benefit of the very substantial disclosure bundle from the Respondents and to much of the material to which I have had the benefit in order to prepare for this hearing.

On 22 October 2015 the Applicant was interviewed by the Moroccan consul. He appears to have followed his pattern of being difficult and non-compliant, as the only note we have of that interview suggests that he told the Moroccan consul in no uncertain terms that he “did not like Morocco”, which clearly was not going to advance his case with them.

The present position is that the matter came on before Tomlinson LJ on 5 November 2015 when it was adjourned in part to allow further inquiries to be made with the Morocco consul as to what steps had been taken to see what their ultimate view would be. But I understand from Mr Adams today that so far as he is aware, no such inquiries have been made. For my part, whilst it is disappointing that the Secretary of State did not comply with the request of Tomlinson LJ, it does not have any direct effect on the decision I have to make today.

For completeness, I should say that on 17 November 2015 the Appellant was released from detention and he has been in the community since that time. I am assured by Mr Berry of Counsel on his behalf that The Applicant is complying with the terms of his release at the present, although one, given the history, feels slightly apprehensive as fresh avenues are apparently now being pursued with Algeria and the Applicant failed to attend an arranged interview with the Algerian consul on 9 March of this year, 2016.

Having considered the case with considerable care, particularly against the background of the simply appalling history of this Applicant in regard to his absconding and criminal offending. I am nevertheless persuaded that the permission to appeal should be granted to this limited extent. The application can be pursued, but only from 23 January 2015, which was the date when the emergency travel document application was resubmitted to Western Sahara.

Mr Adams seeks to persuade me that I should grant permission only for the period between January 2015 and the date which can be clarified in May when the proper application was made to the Moroccan consulate. Mr Berry submits that once the permission is given and given the history up until that date, it must be a matter for the judge hearing the judicial review proceedings to determine whether or not the detention was unreasonable on the Hardial Singh principles between the whole period from January through until his discharge from detention on 17 November 2015.

Whilst I have found the submissions by Mr Adams on this attractive, at the end of the day I have come to the conclusion that it is not for me hearing this application for permission only to seek to analyse the period of detention in such a way as would be necessary by a first instance judge in order to determine whether or not that detention became unreasonable at that stage.

In all the circumstances, I grant permission to that limited extent only.