H, R (on the application of) v Secretary of State for the Home Department

J U D G M E N T

1. MR JUSTICE CALVERT SMITH: The claimant, H, arrived in the United Kingdom in January of 1993. He sought asylum here. Although he was carrying a Kenyan passport he claimed that he was a Somali national and that he had bought the passport in order to travel to the UK. He was in possession, also, of some Somali documentation. No doubt in connection with his application for asylum, the Kenyan authorities were consulted and in October of 1993 a letter was written by the Kenyan Department of Immigration stating that the passport was genuine and had been issued in 1989 against documentation showing that the passport holder, his mother and grandmother had all been born in Mombasa, Kenya. The passport was in a different name to the one which, ever since, this claimant has claimed is his real name.

2. It seems to have been accepted by the Secretary of State that although Kenyan by reason of his passport, this claimant was of Somali origin. There is a note of 11th January 1994 on the Home Office case file indicating as much. Another note in the file at an early stage suggested that his application could be refused on the ground that, being a national of another country than the one in which he alleges a fear of persecution, his application might be refused on that ground. In fact, the application was put on hold. By 1996 it was still on hold and in April that year there is a note on this claimant's case note file that the Department were taking a "pragmatic line with the old Kenyan/Somali cases and accepting that they are Somali". The note includes "please grant 12 months' exceptional leave".

3. This pragmatic line obviated the need which had been suggested from the notes to conduct an in-depth interview with this claimant in order to try and get to the bottom of his possession of a Kenyan passport issued in 1989 and the details of how he had managed to flee from Somalia to Kenya. So far as the claimant was concerned, the result was that in July 1996 he was informed by letter that his application for refugee status had been carefully considered but refused, but that it would be right because of the particular circumstances of his case to give him exceptional leave to enter the United Kingdom until 1st July 1997.

4. This exceptional leave was renewed on 1st July 1997 for a further three years. However, by that date, on 10th June 1997, the claimant had anally raped a boy of 17. On 7th March 1998 whilst on bail for that offence, no doubt, he was also charged with an offence of theft by shoplifting. It appears that he was bailed again because when later in March 1998 those cases were listed for trial respectively at the Central Criminal Court and the Magistrates' Court, he failed to appear and a warrant was issued for his arrest; at least so far as the Central Criminal Court case was concerned.

5. Between that date and September of the same year (the papers do not reveal) he either surrendered or was arrested on the warrant. He was tried at the Central Criminal Court. He pleaded not guilty but was convicted, and on 14th September 1998 he was sentenced to seven years' imprisonment, together with the automatic condition of registration as a sex offender under the Sex Offenders Act 1997. There was no recommendation for deportation and there is nothing in the sentencing remarks which, with the indictment, are the only documents available to this court to indicate whether the question of deportation was even raised as an issue before the learned trial judge.

6. In the year 2000 a probation officer noted that the applicant was still contesting his guilt and therefore, in that officer's opinion, represented a high risk of re-offending. A month before his date of release on 28th January 2003, the Secretary of State issued a notice of his intention to deport this claimant. As the result in 1996 of the "pragmatic line", between 1996 and January 2003 all the documents which this court has seen have referred to this claimant as a Somali, which was what he claimed to be. The case work note for 28th January, the date of the notice, reads in part:

"Case was passed to me by case worker. She has agreed there is enough evidence on file to treat this person as a Kenyan (see letter from Department of Immigration dated 29/10/93) and not Somali."

There is a similar note to the effect that "there is weighty evidence to suggest that he is Kenyan" on 3rd February of that year.

7. The deportation order is dated 20th February 2003. It refers to the claimant by the name that the allegedly bought passport contains and on 28th February he was released from prison but continued to be detained in pursuance of the order for detention. There is a note in the case note file of the same date which records a case worker as saying:

"Prison informed me that [Mr S] does not wish to appeal against destination."

This is the first of a number of examples of what appear to be unlikely suggestions because on the very same day the claimant filled in and signed a notice of appeal. He describes himself as Somalian in the notice and he wrote:

"I am appealing for decision as being taken against me. I run torture in Somalia and killing. My life was in danger back home. I think I come this country my life will be fine. The decision to deporting me to Kenya which is not my country. How can deport me to Kenya? I don't know no-one over there. I left my mother over there since 1993. I have no contact with my mother. I don't know she still alive or no. I will be in big trouble if you send me to Kenya or Somalia. I know my crime is serious but I am human being. Please forgive me for what I have done."

8. It is perfectly clear from that document that, so far as this claimant was concerned, he was claiming that he feared torture or worse in Somalia on the one hand and that Kenya was not his country on the other, albeit that he had been there to escape the troubles in Somalia and obtained a false travel document in order to come to the UK. This appeal document was clearly filled in by the claimant rather than on his behalf by any representative. In April 2003 he had found legal assistance and there is a letter in the papers from UK Immigration Advisors indicating that they were now acting for him.

9. In July 2003 his application for asylum was rejected by the Secretary of State on the basis, in particular, "the Secretary of State does not accept that you are Somalian and does not accept that you have ever lived in Somalia." He appealed against that decision -- by now, it seems, unrepresented again -- to an Adjudicator who on 9th January 2004 upheld the decision of the Secretary of State. It appears that the appeal was confined to the question of the destination imposed by the order of 20th February 2003. The judgment is short, refers to the history of the matter, and at paragraph 4 reads:

"It had been decided to deport the appellant to Kenya since he travelled to the UK with a Kenyan passport which had been validated by the Kenyan authorities in a letter dated 29/10/93 to belong to the appellant. The appellant had claimed the passport was a forgery necessary to help him travel from Kenya where he had taken a plane after fleeing from his native Somalia. The appellant said he did not wish to travel either to Kenya or Somalia and he wished to go to Canada. I explained to him that travel to Canada was not an option and he had to choose from either Somalia or Kenya and to give me good reasons for his choice. The appellant did not wish to travel to either country, stating he would prefer to stay in prison in the UK. I pointed out to him that there seemed to be good evidence that the passport issued in his name was valid and that all the evidence pointed to him being Kenyan. Failing any representation to convince me otherwise, I have no alternative but to order that the destination should be Kenya."

He therefore made that order.

10. By 27th January 2004 the claimant's appeal rights were exhausted. Between 4th May 2004 and 17th August 2004 a number of attempts were made to remove him to Kenya. All failed for logistical reasons; one on 22nd July solely because the plane was full. The situation regarding the removal of people to Kenya has been a constantly shifting one. While it seems that during the summer of 2004 it was possible to remove people under cover of an EU travel document issued for the purpose, from 17th August that option ceased to be available. A decision was taken, therefore, to see whether a Kenyan travel document could be obtained for the claimant. It should perhaps be said that throughout this period, and indeed throughout the period of his detention, it is clear that the department was keeping a close eye on the need for further detention as the months wore on. As early as July 2003 concerns were being expressed at the delay. By October 2004, following the realisation that the Kenyan authorities had suspended removal on EU letters, a person who from the notes appears to have been at Director level said that detention should be maintained but: "The recent history of this case is unfortunate. By the time of the next review we must have a concrete idea of timescale for resolution."

11. On 28th February 2005, exactly two years after the end of his prison sentence, the Kenyan High Commission wrote to the UK Immigration Service:

"The above named was brought to this office for the purpose of interview with a view to issuing him with an emergency certificate to enable you to deport him to Kenya. The subject states that he is [he gives the name that he has always said was his true name] born in Kismayo, Somalia and that he is not a Kenyan. He says that he travelled on a Kenyan passport which was bought in Mombasa. He stated that if he has to be deported then he does not mind being sent to Kismayo rather than Kenya. In view of his statement and explanation we cannot issue him with a Kenyan travel document. We can only issue one if we are certain the subject is a Kenyan citizen."

12. From 2nd March when that letter was received it became clear, therefore, to the Secretary of State that Kenya was not an viable option. There is a note of 2nd March 2005 to the effect that the original passport, presumably the Somali documents which he had also had, had been lost and it was said that it would be hard to get the Kenyans to accept him without such a document.

13. On 7th April solicitors acting for the claimant wrote a letter before action complaining at the continued detention of their client. The Secretary of State then decided that he would pursue the possibility of removal to Somalia. To that end on 22nd April they compiled a biodata form with the claimant in which he gave his details as Somali and his employment as a fisherman. The note on the case file, apparently dated 25th April, reads:

"This will require the approval of the Director. The subject was interviewed by the Kenyan High Commission and was deemed not to be Kenyan. In fact he is now declaring he is a Somali and wishes to return home. I therefore intend to carry out a biodata interview and ask him to sign a disclaimer as removals to Somalia are on a voluntary basis only. In these circumstances, I propose to maintain detention to effect possible removal."

Assuming that that entry was based upon the letter from the Kenyan authorities to which I have just referred, the statement that he wishes to return home overstates the position considerably and may be another example, like the one I referred to in respect of 28th February 2003, of wishful thinking.

14. The next note on the file reads:

"Immigration officer telephoned from Campsfield stating [the claimant] told her he wishes to return to Somalia. Disclaimer faxed to subject. He refused to sign the disclaimer."

The latter is undoubtedly the case because there is a copy of the disclaimer with an endorsement indicating that the claimant had refused to sign it. The question of this claimant wishing to return to Somalia is one about which the court entertains the gravest doubts. It is certainly not borne out by most of the documentation and the claimant's general attitude as witnessed by his own handwriting on his original appeal form.

15. On 10th May, the following day of the attempt to have the disclaimer signed, judicial review proceedings were started. On 24th May Stanley Burnton J listed the application for interim relief and permission. On 7th June there was an adjudication by a Chief Asylum Support Adjudicator indicating that the claimant would be at least entitled to support. The following day, 8th June, Richards J refused interim relief but gave permission and ordered expedition. That same day Mr Armstrong, a solicitor employed by the Treasury Solicitor, made a statement on behalf of the defendant which contains the following:

"There is currently no policy that precludes removals to any part of Somalia. The enforcement of returns is hindered only by temporary practical obstacles relating to the unwillingness of carriers to transport enforced removals. These concerns are in the process of being resolved through negotiations. As such, any Somali failed asylum seeker or person with no legal basis of stay in the UK is liable for removal. Voluntary returns are possible to any region and these can be implemented immediately.

There is currently agreement with carriers in terms of returns to Somaliland of failed asylum seekers from that region, and these are taking place.

In terms of return to other areas of Somalia the profile for the first of those to be returned are --

(1) Single males [this claimant is a single male].

(2) Those with criminal convictions [likewise].

(3) Failed asylum seekers from the region of Mogadishu.

This was the strategy that was adopted when removals were carried out between March and June 2004, and it proved successful. However, this was subsequently stopped not because it was unsafe to return failed asylum seekers fitting the above profile but due to issues with carriers.

Consequently, the claimant in the current case would be one of the first returned once the practical arrangements with the relevant carrier can be put in place. The issues with the carriers are in the process of being resolved through ongoing negotiations."

16. The claimant asks this court for a declaration that his detention is now unlawful and for his release subject to conditions which can be decided by the Secretary of State for the Home Department but include, as is agreed, electronic tagging.

17. I turn now to the law in brief. Section 5(1) of the Immigration Act 1971 enables the Secretary of State to make a deportation order against a person liable to deportation. Schedule 3 of the 1971 Act paragraph 1(1) reads:

"Where a deportation order is in force against any person, the Secretary of State may give directions for his removal to a country or territory specified in the directions being either --

(a) a country of which he is a national or citizen; or

(b) a country or territory to which there is reason to believe that he will be admitted."

Paragraph 2 deals with detention or control pending deportation. Subparagraph (2) reads:

"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 neither detained in pursuance of the sentence or order of a court nor for the time being released on bail by a court having power so to release him, 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)."

18. Subparagraphs (5) and (6) deal with the ability of the Secretary of State to subject such persons (ie, people who are liable to be detained) to restrictions falling short of detention, in particular as to employment, occupation and reporting to the police or an immigration officer. Those restrictions have been extended by section 36 of the Asylum and Immigration Act 2004 to the condition of electronic monitoring. By a commencement order, The Asylum and Immigration (Treatment of Complainants etc) Act 2004 (Commencement No. 1) Order 2004, section 36 has been brought into force. It is not available yet to courts to set as a bail condition, as I understand it, but is available to the Secretary of State through the Immigration Service.

19. Lastly, on the law, statute or similar, I was referred by Miss Harrison who represents the claimant to a quotation from the Home Office policy, which I have taken to be the current policy in the absence of any suggestion to the contrary, quoted in the case of Nadarajah v Secretary of State for the Home Department [2004] INLR 139. At page 147 the current policy on detention/temporary release contained in chapter 38 of the Operations Enforcement Manual is set out. The particular part which I quote is headed "38(3) Factors influencing a decision to detain":

"(1) There is a presumption in favour of temporary admission or temporary release.

(2) There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.

(3) All reasonable alternatives to detention must be considered before detention is authorised.

(4) Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.

(5) There are no statutory criteria for detention, and each case must be considered on its individual merits.

(6) The following factors must be taken into account when considering the need for initial or continued detention."

The factors include:

"What is the likelihood of the person being removed and if so after what timescale?

Is there any evidence of previous absconding?

Is there any evidence of a previous failure to comply with conditions of temporary release or bail?

Has the subject taken part in a determined attempt to breach the immigration laws?

Is there a previous history of complying with the requirements of immigration control?

What are the person's ties with the United Kingdom?

What are the individual's expectations about the outcome of the case?

Are there factors such as an outstanding appeal, application for judicial review or representations which afford incentive to keep in touch?"

20. I was then taken by Miss Harrison through the relevant authorities. In particular R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 , Re Wasfi Suleman Mahmod [1995] Imm.App.R 311, Tan Te Lam v Superintendent of Tai A Chau Detention Centre and Another [1997] AC 97, R (I) v Secretary of State for the Home Department [2003] INLR 196, the case of Nadarajah to which I have already made reference, and finally the case of R v Secretary of State for the Home Department ex parte Khadir [2005] UKHL 39.

21. Having considered all the authorities, I go straight to the judgment of Dyson LJ in I v Secretary of State for the Home Department . 'I' was an Afghani asylum seeker granted exceptional leave to remain who was convicted of, as it happens, offences of indecency, and sent to prison for three years. The Secretary of State signed a deportation order and ordered his detention. In due course he applied for a judicial review of his detention on the basis that removal within a reasonable time was impossible owing to the then difficulty of removing people to Afghanistan. The appeal was allowed. The court went through all the authorities to which I was referred and in his judgment at page 207 paragraph 46, Dyson LJ said:

"There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J [as he then was] in R v Durham Prison ex parte Singh [1984] 1 WLR 704, at 706D, in the passage quoted by Simon Brown LJ, at para [9] above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, at 111A-D, in the passage quoted by Simon Brown LJ, at para [12] above. In my judgment, Mr Robb corrected 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 reasonable diligence and expedition to effect removal."

He went on to explain that principles (ii) and (iii) are conceptually distinct. In this case Miss Harrison relied on both. At paragraph 48 he went on:

"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 para 2(3) of Sch 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.

(49) Simon Brown LJ has identified the three main points of principle which were in issue in the present appeal, namely, the risk of absconding and reoffending, the appellant's refusal to accept voluntary repatriation, and the asylum claim and appeal. As I have already stated, the risk of absconding and offending or reoffending is relevant to the reasonableness of the length of a detention pending deportation. It is, as Simon Brown LJ says, 'an obviously relevant circumstance' . . . "

(50) As regards the significance of the appellant's refusal of voluntary repatriation, there appears to be agreement between Simon Brown LJ and Mummery LJ that this is a relevant circumstance, but Mummery LJ considers that it is decisively adverse to the appellant whereas Simon Brown LJ considers that it is of relatively limited relevance on the facts of the present case. I too consider that it is a relevant circumstance, but in my judgment it is of little weight."

He deals with why, in that particular case, he felt that a refusal of the voluntary was of little weight. For reasons which I will come to, I have come to the same conclusion in this case. He continues:

"(52) I turn to Mr Robb's second reason. I accept that if it is right to infer from the refusal of an offer of voluntary repatriation that a detained person is likely to abscond when released from detention, then the refusal of voluntary repatriation is relevant to the reasonableness of the duration of a detention. In that event, the refusal of voluntary repatriation is no more than evidence of a relevant circumstance, namely the likelihood that a detained person will abscond if released.

(53) But there are two important points to be made. First, the relevance of the likelihood of absconding, if proved, should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake.

(54) Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal of a detained person of an offer of voluntary repatriation that, if released, he will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case. It is not at all surprising that this appellant has refused voluntary repatriation. He has not yet exhausted the asylum process, which, if successful, would permit him to remain in the UK. In these circumstances, why should one infer from the refusal of voluntary repatriation that, if released, he would abscond? In my judgment, the most that can be said is that there is a risk that if he is released the appellant will abscond. But that can be said of most cases."

22. It is against the background of that judge, which has a number of close similarities, or no significant differences, to the facts that I have recited in this case, that I look at the arguments submitted for the claimant and the respondent. For the claimant Miss Harrison submitted, in summary, that all four of Dyson LJ's four principles are in issue here.

23. As to (i), the intention of the Secretary of State to deport the person and the use of the power to detain for that purpose, she submits that it is currently impossible to deport this claimant because of the terms of the statement of Miss McLaren who says that without a Kenyan travel document or admission by the person to be deported that he or she is a Kenyan national, there is currently no possibility of deportation. Secondly, she submits that there is no realistic prospect in the near future of that situation changing so far as Kenya is concerned. This submission relies upon the words of Lord Brown of Eaton-under-Heywood who gave the principal speech in the case of Khadir to which I have referred, at paragraph 32:

"The true position in my judgment is this. 'Pending' in paragraph 16 means no more than 'until'. The word is being used as a preposition not as an adjective. Paragraph 16 does not say that the removal must be 'pending', still less that it must be 'impending'. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (ie, throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains 'liable to detention' and the ameliorating possibility of his temporary admission in lieu of detention arises under para 21."

24. I need say no more than that I reject this ground. Having rehearsed the history, it is perfectly clear that every effort has been made to achieve the removal of this applicant and that the detention has been authorised and used solely for that purpose. It is not impossible that removal will become possible at some time.

25. As to (ii), she submits that the period of detention -- two years and four months in total and one year and five months since the last time at which an appeal could be lodged and since when efforts had been made to remove him -- is not reasonable in all the circumstances. Kenya, she submits, has been impossible now as a destination since August 2004. In some of the cases cited -- Hardial Singh and others is one example -- the court was persuaded to act when the claimant had been in detention for far less long a time than this claimant. The fear, she submits of absconsion is exaggerated and can, in any event, be dealt with by suitable conditions on release. There is no evidence that has been supplied -- and fairly Mr Waite for the respondent conceded that he was not, in spite of the remark in the Probation Officer's report in the year 2000, going to try to rely on evidence of the commission of further offences directly.

26. Finally, on this ground she attempted to deal with the respondent's claim that the period was made reasonable by the non-co-operation of the claimant, which falls into two parts: the refusal, it is said, to cooperate with the Kenyan authorities and admit that he is in fact a Kenyan national and thereby obtain a Kenyan travel document which would enable his immediate removal; and secondly, if he is, as he claims, a Somali, his refusal to accept voluntary removal to his own country.

27. In reply, Miss Harrison submits as to the first non-co-operation issue that it is wrong to blame him for refusing to accept a nationality which he has always refused to accept ever since January 1993, and one which even the Kenyans themselves earlier this year did not accept. As to the second, she submits that it is wrong to criticise him for refusing to accept voluntary removal because ever since he has been in this country he has claimed that he left Somalia because of fears for his well-being, as expressed most graphically in his own application to appeal in February 2003. In general, she submits that it is in any event wrong effectively to delegate the powers which rest with the Secretary of State, and the responsibilities likewise, to the claimant.

28. As to (iii), she submits that even if the detention is thus far reasonable, there is no possibility of his being deported within a reasonable time. As with the second principle, she invokes the effective difficulty on removal to Kenya since August 2004 and argues that the possibility raised in the most recent statement of Miss McLaren that at some time in the future it may be possible to remove to Kenya even those persons who deny that they are of Kenyan nationality, is not sufficient to indicate that deportation can in fact be carried out within a reasonable time.

29. Finally, as to (iv), she complains that the Secretary of State has not exercised reasonable diligence and expedition. She relies on the late service (that is to say a month before his sentence ran out) of the original notice and the consequential order. The failure to use the fast track procedure, a failure to make arrangements for removal for some three to four months following the exhaustion of rights of appeal in 2004, the loss of the Kenyan passport, the shifts of "tactic" by the Secretary of State from Kenya to Somalia and back again as the country to which removal should be affected, and finally the failure of the Secretary of State to make any reply at all, let alone a constructive reply, to letters from her instructing solicitors of April and May 2005 asking the Home Secretary to reconsider detention and possibly replace it with release on conditions.

30. As with the first ground, I reject this ground. Although it is clearly possible in almost every case in hindsight to have done things more quickly, there is no evidence whatever of this case getting lost. Indeed, it has clearly been under close supervision throughout its life and it is impossible to ignore the fact that there is enormous pressure on the Department.

31. As to ground two, Mr Payne for the respondent submitted in three ways. First, that the detention even for this long time was reasonable because of the overwhelming public interest in securing the removal of persons like this claimant who are not only illegally in the country, but have committed very serious offences. Also, as a sub-ground to this, that the offence that this claimant committed of rape is in fact arguably a more serious offence than any of those in the cases to which attention has been drawn.

32. Second, that there was a clear risk of absconsion: first, because the crime itself was serious; second, perhaps more importantly, because, as has been recited, this appellant failed to answer his bail on two occasions in March of 1998 when on trial respectively for rape and theft; thirdly, that the only bar to his speedy removal is his own lack of co-operation and therefore that makes reasonable what might otherwise be an unreasonable period of detention.

33. As to the alleged failure to co-operate with the Kenyan authorities, it seems to me unfair to criticise the claimant over his refusal to accept Kenyan nationality, and on this matter I accept the arguments of Miss Harrison on the claimant's behalf. Likewise, the question of voluntary removal to Somalia and the apparent 24 hours over which he is said to have consented to such removal, bearing in mind the reasons that he has always put forward for coming here in the first place and his repetition of such sentiments to the asylum Adjudicator and others that he effectively does not want to go back to either country. I once again accept the arguments of Miss Harrison.

34. A third important point is raised in this context. That is that to allow persons liable to removal to thwart the removal process by the simple expedient of claiming another nationality is against public policy and might encourage others to make such spurious claims simply in order to evade, or at least put off, their ultimate deportation. That is a sound public policy point. But in this case, and each case has to be looked at on its own merits, there is no question that this claimant has suddenly "played a card" that he has not played before. He has stoutly maintained since January 1993 that he is a Somali national. He has said that if he has to be deported at all he would rather be sent back to Somalia than Kenya. At one stage, as in the narrative of events makes clear, earlier this year he may have been removed to Somalia against his will if there had been carriers willing to take unwilling deportees to that country. And as Mr Armstrong's statement also makes clear, efforts are still in train to effect such removals.

35. Accordingly, although I accept that this is a valid point to make, and clearly one which would have to be scrutinised carefully, in this particular case and on these particular facts it does not alter my decision that in fact the detention in this case is unreasonably long and that, as I indicated yesterday, this claimant should be released.

36. Finally Mr Payne on this ground submitted that although as Miss Harrison pointed out, others had been ordered to be released who had spent less time in detention than this accused -- in particular in the case of Chen and perhaps others to which he referred me -- in fact detentions have been authorised which have lasted considerably longer. Two reports in the case of Chen were referred to. The first is Wai Ling Chen v Secretary of State for the Home Department [2002] EWHC 2797 before Goldring J, and the second is simply in transcript form, and is the same claimant and same defendant. Its court number is 5178/2002 in the transcript before me. In fact, that case was cited to me for two reasons and I will deal with them both.

37. The first is that as a matter of fact the claimant in that case had been in detention from 12th November 1999 until the date of the hearing on, I believe, 5th December 2002. At the second hearing which was on 7th February 2003, Newman J ordered his continued detention at least until the time that the claimant unconditionally agreed in writing to attend the Chinese Embassy for an interview. The second reason that Mr Payne relied on this case was that it was indeed an example of this court relying upon the applicant's non-co-operation with the authorities as a justification for continued detention. In that case there was, however, no dispute whatever that the claimant was a Chinese national and the only non-co-operation was that he was insisting, when he attended the Chinese Embassy, that he should do so with a solicitor. Whereas the learned judge indicated that that was not a requirement, and in any event he would be accompanied when he attended the Embassy so that there would be somebody there who could testify as to what had gone on.

38. The non-co-operation in this case, as I have found, is of a completely different nature and, for the reasons I have already given, cannot reasonably be categorised as non-cooperation, certainly not non-co-operation sufficient to justify further detention.

39. Finally as to the third ground, Mr Payne, perhaps realising the way the wind was blowing, for the first time (since it had not been mentioned in skeleton argument or up to that time in argument) asked the court to consider adjourning the proceedings against the hope that the possibility adverted to by Miss MacLaren in her witness statement of the ability to deport unwilling deportees to Kenya might improve. He was unable, when first asked, to assist the court with how long he was asking for but eventually asked for a month. It is perfectly plain that this hope remains just a hope and, in my judgment, there was nothing before me sufficient to indicate that, were a month to be allowed, the situation would likely have changed. The course suggested was tempting, since I find that the grounds advanced are valid grounds, in that there is a real fear of absconsion in a case such as this where a claimant has already absconded whilst on bail.

40. As I indicated yesterday, I grant the order sought, in particular since less stringent measures than detention, but nonetheless very stringent measures, should reduce the risk of absconsion very considerably. I stress, as I hope has been clear throughout, that all the decisions that I have seen recorded have, in my judgment, been taken in good faith and with reasonable diligence and expedition. I reject, in particular, the criticism of the Department for shifting its ground as it was suggested. It seems to me that the Department is entitled to do anything within the law to ensure the removal of a person who is not legally here and who has committed a very serious crime. I have simply come to the conclusion, as Laws J in the case of Mahmod , that although it is impossible to say what in any given case is a reasonable period for detention, it has, on the one hand, now been exceeded hand and, on the other, that there is no reasonable prospect of the detention, were it to continue, coming to an end within a reasonable time. So under principles (ii) and (iii), I have come to the conclusion that the orders sought must be granted.

41. We discussed the terms of the orders yesterday. I was minded, subject to the two of you -- I will just turn up page 6 to make the order in the terms of paragraph 1 of section 6 of the claim form, and to make the order at paragraph 2 deleting the word "forthwith" and substituting the words "subject to such conditions as the Secretary of State thinks fit".

42. MISS HARRISON: Yes, my Lord.

43. MR JUSTICE CALVERT SMITH: Such conditions to be in place and then a period by which they must be in place.

44. MISS HARRISON: My Lord, it is something about which, while your Lordship was giving judgment, I have had an opportunity to speak to my learned friend. He has suggested seven days. Ordinarily, that would be a period I would agree to but, because I understand the particular difficulties with tagging, there may be an extra difficulty with the organising of the accommodation. I am prepared exceptionally not to object but would be very unhappy on behalf of my client, in light of your Lordship's judgment, if there was to be a situation where we would come back in seven days and that has not happened. I hope those seven days means seven days. That is all I can say. Obviously, we would need liberty to apply if it became apparent that there was any overwhelming difficulty.

45. MR JUSTICE CALVERT SMITH: Do I need to put that in the order? The liberty to apply?

46. MISS HARRISON: My Lord, I think so. It may mean that the case does not become a dead case.

47. MR PAYNE: My Lord, I have no objection.

48. MR JUSTICE CALVERT SMITH: In that case, subject to such conditions as the Secretary of State thinks fit, such conditions to be in place within seven days. Liberty to apply.

49. MISS HARRISON: My Lord, there are two other matters and only really first by way of confirmation. Your Lordship has referred to the claimant as H. We would request that the anonymity order continues.

50. MR JUSTICE CALVERT SMITH: As a matter of interest, why was that order made? It does not seem to be made in the other cases. What are the particular circumstances?

51. MISS HARRISON: My Lord, it was on the basis that, given the nature of the events and obviously any publicity that there may be, the reporting of the case, that it be may be of adverse interest to the claimant. I think it is a matter of public record that cases such as this are at risk of getting adverse publicity in certain newspapers.

52. MR JUSTICE CALVERT SMITH: Very well. I am sure it was argued at the time. I will leave it in place. If there was a good reason then, there is certainly a good reason now.

53. MISS HARRISON: Thank you, my Lord. The only other question is that there is a claim for damages and it may be, in light of your Lordship's judgment, something that we can reconsider. Obviously, we would have to identify a point at which it became unlawful in order to obtain damages. On the basis of your Lordship's judgment, how it stands at the moment --

54. MR JUSTICE CALVERT SMITH: I did ask you this yesterday and you said you were not pursuing the claim for damages so I struck it out.

55. MISS HARRISON: My Lord, possibly that is my misunderstanding of what your Lordship intended. What the normal course of action is in this jurisdiction is that where there is a claim for damages, the Administrative Court judge makes a judgment on the legality of the detention and the Master assesses damages. I apologise. What I meant was that your Lordship does not need to make a judgment about it now. In other cases I have been involved in there is a split hearing, and if it is not resolved between the parties then a separate second hearing takes place. It was with that practice in mind. My intention today, which is the application I was going to make, was for your Lordship to transfer the case to a Master for an assessment of damages. That is the usual course. But I think it is a matter that we need to consider.

56. MR JUSTICE CALVERT SMITH: I think you ought to. I have not attempted in my judgment to say: As at the X day of whatever. Taking my cue from Laws J and some of the other judgments, all one has to look at is on the day in question, balancing the various matters his detention is now justified. My judgment was that it is not.

57. MISS HARRISON: Perhaps it is an oversight on my part. It should have been raised yesterday. In this particular category of case there would have two points where potentially one can accept it became unreasonable. In August 2004 or February 2005.

58. MR JUSTICE CALVERT SMITH: I can see how you put it.

59. MISS HARRISON: So all that I could suggest is that, given clearly a failure of me understanding what your Lordship meant by saying: "Is there any claim for damages", or whether we were pursuing a claim for damages, the only proposal I can make is that if the damages claim is not struck out but it is put over to another date and on that date we have an opportunity to argue realistically only that the detention was unlawful on 25th February when the Kenyan authorities decided they would not give him a travel document. It is not an insubstantial period of time, so there is some merit in asking your Lordship to address that question specifically, if we could not resolve it between ourselves in the interim. It would really take no more than an hour to argue that. My Lord, I would suggest --

60. MR JUSTICE CALVERT SMITH: Well, Miss Harrison, I think I have made it clear that even the last move to try for Somalia, which is post February 2005, was open to the Secretary of State. He clearly was faced with a difficult problem and was trying to solve it. The situation we now have today, as I have ruled, that Somalia seems to be out, Kenya is out for reasons (c) and (d) for the foreseeable future. Therefore, as of today I am not sure you are going to have much luck with me even if we come back on a future occasion.

61. MISS HARRISON: Yes, my Lord. Well, my Lord, if could I make a submission. If it could be left open -- and I do not have my solicitor with me today otherwise I might be in a better position to make a submission to your Lordship because there is no representative here. If your Lordship could adjourn the damages issue generally and we can be required to come back within a seven day period.

62. MR JUSTICE CALVERT SMITH: Yes.

63. MISS HARRISON: In order to tell your Lordship what we intend to do with that.

64. MR JUSTICE CALVERT SMITH: Alright.

65. MISS HARRISON: That, I hope, will resolve that matter. My Lord, I think you dealt with question of costs yesterday. You indicated that you would make an order for costs against the defendant and the claimant's costs would be subject to detailed assessment.

66. MR JUSTICE CALVERT SMITH: Yes.

67. MISS HARRISON: My Lord, I am grateful.

68. MR JUSTICE CALVERT SMITH: Thank you very much. Thank you very much for standing in, Mr Payne.

69. MR PAYNE: My Lord, I want to understand the position on damages because I spoke to my learned friend, Mr Waite. His clear understanding was that it was not going to be pursued. Having taken a note of your Lordship's judgment, the final paragraph actually was that the Secretary of State acted with all reasonable diligence.

70. MR JUSTICE CALVERT SMITH: I think I made it clear if we have to come back it is most unlikely I will be amenable. I would not want to shut Miss Harrison out because it may have been my misunderstanding rather than hers. Liberty to come back in seven days, but do not hold your breath.

71. MR PAYNE: Thank you, my Lord.