Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE WYN WILLIAMS
Between:
THE QUEEN ON THE APPLICATION OF RIAD MOHAMMED SAID
Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
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Miss S Naik (instructed by Bindmans LLP) appeared on behalf of the Claimant
Miss J Anderson (instructed by Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE WYN WILLIAMS: The claimant is a Palestinian. He was born on 11th June 1974 in the Jenin refugee camp on the West Bank. Until the age of 15 he attended school in the West Bank. From the age of about 15 to October 1997 he worked as a carpenter and for much of the time he worked in Israel.
In October 1997 he decided to leave the Middle East and come to Europe. He went first to Germany and claimed asylum. Whilst that application was being processed, he left Germany and travelled to the UK. Since 1998 he has spent most of his time in this country.
On 22nd February 2007 the claimant was convicted at the Teesside Crown Court of the offence of wounding. He was also convicted of having with him in his possession a bladed article. He was given an extended sentence of imprisonment of 4 years. That means that there was a custodial period of 2 years and an extension period to his licence of 2 years. The judge recommended that the claimant should be deported after serving his sentence. On appeal the extended sentence was quashed. The Court of Appeal (Criminal Division) substituted a term of 2 years' imprisonment.
By October 2007 the claimant had served his sentence of imprisonment. However, on that date the defendant detained the claimant. The defendant did so in exercise of his powers under Schedule 3 of the Immigration Act 1971. The claimant has remained in detention since that date. According to the defendant that has been "pending deportation". Accordingly the claimant has now been in detention for 2 years and nearly 4 months. On any view that is a very significant period of time.
In these proceedings the claimant challenges the lawfulness of his detention. He does not assert that the detention under the Immigration Act was unlawful at its inception. He submits, however, that it has become unlawful essentially because it has now lasted for a period of time which should be categorised as unreasonable.
In order to reach a decision upon whether the period of detention should be so categorised it is necessary to consider and weigh up a large number of factors. Often the factors conflict. The judge's task however is to weigh up those factors and to reach conclusions.
One important factor is the claimant's immigration history. It is certainly important in this case and it is to this factor which I turn first. In the main the history is taken from the respective chronologies provided by the claimant and defendant. It is not entirely clear to me that each and every entry set out in these chronologies is actually supported by evidence in the bundle. However, in the absence of complaint by either side about any aspect of the chronologies and in particular their accuracy, I have proceeded on the basis that even if there is no evidence in the bundle which justifies a particular aspect of the chronology, nonetheless it is accurate.
The chronology begins when the claimant decided to leave Palestine. He did so on the 11th October 1997. He fled to Jordan using a cousin's passport. The claimant remained in Jordan for two weeks, then travelled to Cyprus using a false Greek passport. He remained in Cyprus for one day before travelling onto Germany where he claimed asylum.
The process of claiming asylum in Germany seems to have taken some time. It may have been because it is accepted by the claimant that he gave a false identity. He asserted to the German authorities that he was an Iraqi national.
On 18th June 1998, while the process of claiming asylum in Germany was still ongoing, the claimant travelled to Heathrow. He used a Greek passport, which he then destroyed on arrival. Upon his arrival in this country he claimed asylum. Again he claimed to be an Iraqi national and he gave a name which was false. It was not the same name as he had given when claiming asylum in Germany.
On 18th November 1998 the claimant was removed from this country to Germany. However, he returned to the UK on 4th July 1999, together with his then girlfriend. He entered this country illegally. Shortly afterwards he went to Croydon to claim asylum. On this occasion it is accepted that the claimant used his real name at a screening interview and gave an apparently real version of events surrounding his claim. However, I have used the words "apparently real" because it is common ground that the version of events given was incomplete. I should stress that it may be that there are contested issues surrounding the complete version of events put forward to support the asylum claim, but to repeat, it is common ground that as of 1999 the claimant gave an incomplete version of the events upon which he relied.
Apparently the claimant did not attend his asylum interview. He does not know whether an interview was ever rescheduled. At this stage we are still in 1999. By May or June 2003 the claimant's asylum application had not been determined.
Accordingly, he contacted the immigration authorities. He was told to report. Upon reporting he was detained and then he was taken to an immigration centre where he was held for about a month.
The upshot was that on or about 21st November 2003 the claimant's application for asylum was refused. As was his right, he appealed that decision. His appeal was lodged on 11th December 2003. On 16th April 2003 the appeal was dismissed.
Approximately 1 year went by and then, in about July 2004, the claimant took an overdose of tablets and was admitted to hospital. The period between approximately April 2003 October 2005 is not particularly significant in relation to immigration history, save that in the spring of 2005 the claimant was found to have a false passport when attempting to leave for Ireland. The period does however have a significance in relation to other events, namely the commission of criminal offences, and so I will return to that period later in this judgment.
As I have said, the claimant was convicted of a serious criminal offence in February 2007. He had served the custodial part of his sentence by October 2007 and to repeat, on 9th October 2007 administrative detention began. He had by then been served with a notice of an intention to make a deportation order. On 16th November 2007 the defendant served a decision to make a deportation order upon the claimant. The claimant promptly appealed. He did that on 26th November 2007. That appeal was considered by the tribunal but the appeal was unsuccessful. The appeal was dismissed on 29th February 2008. So it was that on 15th April 2008 the defendant signed a deportation order and served it upon the claimant.
There is a paucity of direct evidence before the court about what transpired between 15th April and the late spring/summer 2009. Counsel for the claimant, Miss Naik, was frank enough to acknowledge that during this period the probability was that the claimant was failing to co-operate with the defendant as to give effect to his deportation. Such evidence as there is certainly supports that view. This part of my judgment is taken essentially from the defendant's chronology.
On 23rd May 2008 the claimant was asked by the defendant for a Palestinian national identity number. He apparently refused to provide a number at that stage. On 23rd June 2008 the defendant offered the claimant FRS (Facility Returns Scheme). That is a scheme whereby persons are helped to return to their country of origin. They are given financial and other support in order to facilitate that process. Upon being offered the possibility of such a scheme, the claimant stated that he did not know his identity number and he did not wish to take up the scheme. On 30th June 2008 the claimant was seen in person by an immigration officer, who again offered to provide FRS to the claimant but again this suggestion was rejected by the claimant. In this same period, by which I mean the summer of 2008 to the summer of 2009, the claimant made at least two applications for bail but both were refused.
On 30th April 2009 the claimant began to adopt a more co-operative attitude towards the defendant. First, he spoke to an immigration officer on 30th April 2009 and indicated he would like to prove his Palestinian nationality. On 11th May 2009 the defendant received bio data and photos which were intended to assist in establishing the claimant's nationality. On 25th June 2009 the claimant permitted a language analysis of his language to take place. That strongly indicated that he was from Palestine.
During July the claimant received personal visits from a case worker employed by the defendant and it seems that in July 2009 the claimant made yet a further claim to asylum. The precise date of the actual claim is unimportant. It seems to me very likely that by about 8th July the claimant was indicating a wish to claim asylum for a third time. A screening interview was arranged for 13th July 2009 but that was cancelled at the request of the claimant's representatives. The summer went on and the claim for asylum was not progressed in any meaningful way. On 6th August 2009 the defendant made a formal request to the claimant to facilitate the completion of emergency travel document forms and he was asked to provide supporting evidence of his identity and also supporting evidence for his third asylum claim.
An interview was scheduled for 26th August 2009 but ultimately that was rescheduled to 11th September 2009. It was in early September 2009 that the third asylum claim crystallised in the sense that on 9th September 2009 the claimant's legal representatives sent a long detailed letter setting out the factors upon which the claimant relied in support of his claim. On 11th September, as I understand it, the claimant underwent both a screening interview and a substantive interview in relation to his claim.
I should to make this observation at this stage. It was obviously crucial to this third claim that the claimant was asserting, for the first time, that he had been subject to torture when he was last in the Middle East. That was not something he relied on in previous applications. Some information about that torture had apparently been provided by the claimant when he had undergone medical examination in 2004. In July 2009 there had been a debate (and I use that word completely neutrally) between the claimant's legal advisors and those acting on behalf of the defendant about whether a proper medical assessment of the claimant could take place, while he was in detention, because it was being suggested by the doctor appointed to both examine and advise the claimant in support of his asylum claim that it was not appropriate for the claimant to make disclosures about torture while he was in detention. That was so because it was being said that there would not be the appropriate backup for the claimant, should he make disclosures about torture, and should he react adversely. In any event, the defendant asked the claimant on 30th September 2009 to give permission for his 2004 hospital notes to be disclosed.
That did not meet with an immediate agreement on the part of the claimant. Some further time went by. On 2nd October 2009 the defendant contacted the claimant's representatives indicating that a 28 day period would be allowed for the submission of medical evidence prior to the defendant's consideration of the claimant's claim to asylum.
The last few steps in the immigration history are as follows. On 21st October 2009 the claimant received a personal visit from an immigration officer. FRS was again discussed but the claimant refused any participation in the scheme. On 19th November 2009 the defendant again requested the hospital notes from 2004. On this occasion the request was refused. Very shortly thereafter there was a change of heart on the part of the claimant and on 24th November 2009, the hospital notes were disclosed to the defendant. Yet further representations were made at that stage relating to the asylum claim.
On 11th December 2009 the defendant suggested that any further medical evidence should be submitted by 21st December 2009. On 17th December the claimant's advisers sent to the department a copy of the claimant's birth certificate and as I understand it they also disclosed his identity number on or about that date.
Within days of the provision of that information the claimant's advisors sent a pre-action protocol letter to the defendant in which they asserted that the claimant's detention was unlawful. That provoked a response to the effect that it was not and these proceedings followed shortly thereafter.
It seems to me that the following conclusions are justified on the basis of this immigration history. First, the claimant has made two claims for asylum, one in the UK and one in Germany in which he has given details about his identity which were false. Second, he has travelled between Germany and this country using a false passport. Third, he was proposing to use a false passport in 2005 when he was arrested at the port on his way to Ireland.
Fourth, there was a complete failure to co-operate with the defendant, in relation to the defendant's decision to deport the claimant, between April 2008 and May 2009. On the basis of the evidence available, the claimant was, throughout that period, expressing a settled intention not to return to the West Bank and further he was unwilling to provide any details which would assist the defendant to affect the deportation. Fifth, although co-operation with the defendant began in May 2009, it was not until December 2009 that the defendant produced his birth certificate and his identity number to the defendant. On any view the defendant's birth certificate was an important document in helping to facilitate the claimant's deportation as was the disclosure of his identity number. As is clear from the claimant's witness statement, he knew that the production of his birth certificate was important. Yet he failed to disclose it notwithstanding the fact that it had been in his possession since September 2009. That also appears from the claimant's statement.
The significance of those conclusions, in my judgment, are these. First, on any view the immigration history strongly suggests that there was here a real risk that the claimant would abscond if given his freedom. Second, for most of the period of his detention, he has failed to co-operate with the authorities in order to bring about his deportation and therefore the ending of his detention.
I turn to the issue of the claimant's previous convictions. The convictions themselves begin in 2005. In July 2001 the claimant had began a relationship with a woman called Jackie East. In late May 2001 he began to live with her. By May 2005, however, that relationship had broken down. Indeed, as I understand it, the claimant's desire to leave the UK to go to Ireland may have been connected with the breakdown of that relationship. In July 2005 the claimant was convicted of a number of offences committed against Miss East. They involved harassment and the offence of battery. He was sentenced to 84 days' imprisonment in respect of those offences and a restraining order was made against him. Unfortunately, the claimant persisted in offending against Miss East. On 4th January 2007 the claimant was sentenced to a further term of imprisonment, in respect of offences committed against her including the offence of breaking the terms of the restraining order. As I have said, the offence to which the claimant was sentenced at the Teesside Crown Court was an offence of wounding. It was committed in June 2006. In summary, it involved the claimant using a broken bottle to assault a man who had apparently attacked him in a nightclub. The use of the bottle caused a laceration to the victim's head. The victim had other superficial injuries to his face and mouth.
Although the history suggests that the claimant was the first victim of aggression, it seems clear from the circumstances that the claimant's response to that was completely disproportionate. It was he who was charged in relation to this incident. The offence, clearly, was a serious one and resulted in a reasonably substantial term of imprisonment.
A pre-sentence report was prepared in advance of the sentencing of the claimant. It apparently suggested that there was a clear risk that the claimant would commit further offences, but it stopped short of asserting that there was a risk that he would commit further serious offences.
In this case there has been some debate, certainly in the skeleton argument, about whether or not the defendant was correct to view seriously the prospect that if the claimant was allowed his freedom, there was a risk of the commission of further offences. In my judgment, there can be no doubt that there is a risk of the commission of further offences. In a short period of time in 2005 and 2006 the claimant resorted to violence on three separate occasions. It may be that the statutory criteria for categorising the claimant as a "dangerous offender" were not met, hence his successful appeal to the Court of Appeal (Criminal Division). Nonetheless, in my judgment, the offences committed by the claimant showed an escalating pattern of violence and it is a proper conclusion that there would be a risk of re-offending should the claimant be permitted his liberty.
The next discrete factor which needs to be considered is the claimant's third claim for asylum. I have mentioned many of the details in my review of the relevant immigration history. To recap in about July 2009 the claimant made a third claim for asylum, in which for the first time he raised the spectre that he had been tortured when last living in Palestine.
On the basis of the history which I have recounted, I am quite satisfied that it was not reasonably practicable for the defendant to properly consider that asylum claim until he had received all the information which is now before him. That information came to him piecemeal from about July onwards and ended with the disclosure of the birth certificate and the identity number in December 2009. An important part of the claimant's case, of course, relates to the alleged torture and the medical records relevant to that allegation were not themselves disclosed until November 2009. Accordingly to repeat, it seems to me to be clear that the defendant could not reasonably have been expected to determine this claim for asylum until all that information was before him.
About 7 weeks elapsed between the receipt of the last pieces of information and the oral communication of the defendant's decision upon this asylum claim. I say "oral communication" for this reason. On Monday of this week, that is 1st February 2010, the defendant served a written decision relating to the asylum claim. The decision, in substance was that the claim was rejected. Shortly after the decision had been served, however, it was withdrawn and, as of yesterday, when this hearing was taking place, a substitute decision had not been served. However, it was accepted that the substance of the decision would remain unchanged, namely that the asylum claim would be rejected and that the only purpose in withdrawing the first decision was so that certain parts of the language used might be changed. Certainly counsel proceeded on the basis that there has now been communicated a decision to the effect that the third asylum claim has been rejected.
In the light of the immigration history the conclusions that I have drawn about the risk of absconding, the significance of the claimant's offending and the fact of a claim for asylum made in July 2009 and properly determined as of about now can it be said that the claimant's continued detention has become unlawful? I do not propose to quote substantial extracts from the relevant authorities. I simply intend to identify them for the purposes of this judgment. They begin of course with the well-known passage of Woolf J (as he then was) in R v Governor Durham prison ex parte Hardial Singh [1984] 1 WLR 704. The next decision of significance is R (On the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888. Next, the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Kadir [2005] UKHL 39 and then two recent decisions by High Court judges, firstly the decision of Davis J in R (on the application of Abdi) v Secretary of State for the Home Department [2009] 1 EWHC 1324 and finally decision of Sales J in R (On the application of Hussein v Secretary of State for the Home Department [2009] EWHC 2506 (Admin). In reaching the conclusion which I am about to set out, I have faithfully applied the principles which are to be found in those judgments.
My task in this case in this case is hampered to some extent because the defendant has filed no witness statement. I appreciate that he has had but a short time in which to do so. Nonetheless, in my judgment, it would have been possible for witness evidence to have been served. This claim was threatened before Christmas. By using the word "threatened" I simply mean to convey that a pre-action protocol letter was sent before Christmas. The claim itself was issued on 5th January 2010, with detailed grounds in support. In my judgment, it would have been possible and indeed desirable if evidence had been filed on behalf of the defendant, in particular to explain the sort of procedure which is necessary to follow if one is attempting to deport someone to Palestine. Nonetheless it does seem to me that there is sufficient information before me upon which to reach a proper judgment in this case.
As I have said and I should make it clear again, counsel for the claimant does not submit that there has never been lawful detention in this case. Her grounds essentially are two-fold as appear from the closing paragraphs of her skeleton argument. She first submits that the court cannot be satisfied that there is a realistic prospect of removal of this claimant within a reasonable timescale. She accepts, especially when pressed by me, that the likelihood is that the court will find that most of the period of detention to date was probably justified. She submits, however, that there came a point in time and at the latest by the end of 2009, when it should have become clear to the defendant that there was no realistic prospect of removing the claimant within a reasonable time hence forth. She submits the defendant has yet to take any meaningful step so as to advance the deportation. Accordingly, she submits that there must be a proper inference to the effect that deportation is sufficiently long down the line, that detention, at this stage, is unlawful.
Miss Anderson, for the defendant, does not accept that any period of detention has to date been unlawful. Essentially she submits that but for the acts and omission and the claimant himself, the likelihood is that the claimant would have been deported at least many months ago; that his detention, pending deportation, is completely justified by the very significant risk of absconding and further offending which arises in this case.
Although there is a paucity of direct evidence about the prospect of effecting deportation, in my judgment a reasonable picture does emerge from such documents as have been put in by the claimant himself. For example, there is a detention review in October 2008. There is the correspondence which has been too-ing and fro-ing between the solicitors on behalf of the claimant and the relevant department of the immigration authorities since the summer of 2009. There are the documents relating to various bail applications which contain summaries of the stance taken by the defendant at those applications and there are two letters which the claimant produced at the hearing yesterday but which are dated March 2009, which touch upon the difficulties or otherwise of deporting or removing persons to Palestine.
Taking that information as a whole, it seems to me that it is a justifiable conclusion that once all the relevant information has been collated, there is a reasonable prospect of a removal within a reasonable time. The production of an identity number and a birth certificate are obviously important to this process. Throughout the whole of this period of detention, the defendant has been telling the claimant that if he co-operated, if he produced the relevant documentation, if he gave the relevant details, the defendant would be in a position to effect his deportation, or facilitate his voluntary removal. It seems to me that there is nothing in the information before me, which should lead me to the view that the defendant's assertions to the claimant were unfounded or unrealistic or unreasonable. To repeat, a consistent pattern emerges, namely that with the relevant information removal can be effected in the absence of evidence we suggest to the contrary I conclude that the defendant's assertions to that effect should be accepted.
Accordingly, in my judgment, it is not possible for me to conclude that there has yet been any period of unlawful detention. As I have made clear, a very long period of detention, which is what I am considering in this case, has, in very substantial measure, been brought about by the claimant's own unwillingness to co-operate to effect his removal/deportation. It seems to me that I can properly conclude that had he co-operated, as he should have done many months ago, the likelihood is that his deportation would have been effected.
It also seems to me that in judging the legality of the detention to date, it is proper to reflect upon the very serious risk, as I find it to be, of the claimant absconding if he should be afforded his liberty. I do not repeat myself. His whole immigration history suggests, in my judgment, that upon being granted his freedom the likelihood is that the claimant would abscond, absent of course any decision that he should lawfully remain within this country.
It is also not without significance in my judgment, that the claimant committed, as I have described escalating offences of violence in a comparatively short period and in my judgment that is a further factor which was and is properly taken into account in deciding to detain the claimant.
That is not the end of the story. Even if, as I have concluded, no period of detention has yet been unlawful, it is clear from the principles elucidated by Dyson LJ in I that I should have close regard a further point which is this: can it now be said that deportation can be effected within a reasonable time? If it cannot, then I should now say that any further detention would be unlawful.
This seems to me to involve an analysis of what is likely to occur in the following months. It is almost inevitable, in my judgment, that the claimant will appeal against the refusal to grant him asylum. Technically the refusal is to be treated as a refusal to revoke the deportation order. But, however one views it technically, it is clear that a right of appeal will arise and it is equally clear in my judgment that the claimant will exercise that right of appeal. Normally, one could predict with a degree of confidence that the claimant appeal would be dealt with expeditiously. One cannot be confident that that will occur at this juncture in time, mainly because the Asylum and Immigration Tribunal, the tribunal which would ordinary consider this appeal, is shortly to be swallowed up into the Tribunal system and become a differently constituted body.
Although of course many of the personnel will remain the same, there is the clear prospect that a change in the status of the tribunal will have an adverse impact upon the speed with which appeals are dealt with in the coming months. So I have to be cautious about that possibility.
I also have to be cautious about the speed with which the defendant will be able to arrange emergency travel documentation. In my judgment, there will be no bar to the defendant seeking to arrange such documentation once he has issued his decision that the fresh claim fails.
While it may have been justified for the defendant to hold off from seeking to arrange such documentation, while he was actively considering a fresh claim, in my judgment, there is no reason why he cannot take urgent steps to arrange travel documentation now that he has made his decision.
All that said, there now remains the prospect that some months will go by before the claimant's removal or deportation can be effected. As I am conscious, if that is the case, a detention period coming closer to 3 years will be the result if detention is maintained. That is a prospect which is not lightly to be justified and requires the most careful scrutiny. In my judgment, I am not in a position to offer a definitive view about what would be an unacceptable further length of time in custody. I simply do not have the relevant information before me. If it were to be measured in weeks or a few months, however, I have, after considerable thought, reached the conclusion that it would not become unreasonably long. If, however, it would be measured in a period much longer than that, then despite this immigration history, despite the risk of offending and despite the risk of absconding, there would be real concern that the length of detention in itself would simply be too long.
What that means in practical terms is this. I propose to dismiss this claim, first, because I am satisfied that no period of detention to date has been unlawful and I am not yet satisfied that it is inevitably the case that a further period of detention would be unlawful. However, I am sure that the claimant's advisors will keep the period of detention under very close scrutiny and should it become clear that detention is to be viewed in terms of many months, or certainly beyond the sort of period that I have indicated might be acceptable in the previous paragraph, I have no doubt that this matter will return to court. But for the reasons which I have given, I have reached the conclusion that the claim, as presently constituted, must fail.
MISS ANDERSON: My Lord I believe the claimants are legally aided. I would ask for the costs and the usual order.
MR JUSTICE WYN WILLIAMS: I take it you have no objection to order of costs in the common form for a legally assisted person?
MISS NAIK: My Lord, no.
MR JUSTICE WYN WILLIAMS: Very well, I make an order dismissing the claim and the order for costs will be in the form which is appropriate to a legally assisted person.
MISS ANDERSON: My Lord, can I ask one thing more, not necessarily in the form of order because I am not sure that you can necessary deal with this? But I wonder whether you can give an indication that this case is fit for expedition, so we could show that to the Asylum and Immigration Tribunal. I appreciate that the jurisdiction might be quite difficult to direct them.
MR JUSTICE WYN WILLIAMS: I will simply say this: as I hope is clear, I am concerned about the length of time which the claimant has spent in custody and even more concerned about any prospective period, so that any procedural step which can be taken, so as to minimise that likely length of time is very much to be encouraged.
MISS NAIK: One more thing while on my feet. I mentioned yesterday that Mr Abdi might have absconded. I had the wrong Mr Abdi and I am sorry about that. I was just going to update you on the position. That the foreign national prisoner appeals were heard in December, and they are waiting judgment and Mr Abdi has another appeal listed for April. So that is the situation. I believe my learned friend thinks that the judgment may be held up with the case of SK which is being heard by the Supreme Court today.
MISS ANDERSON: Before I come on to the cases, I wanted to support any comment in relation to expedition. How my solicitors and the claimant's solicitors conduct that asylum appeal is very much a matter for their expert view. We have not seen the letter, we cannot consider the contents of it until we have properly seen it and taken instructions on it and probably seek further expert evidence. That is all going to take a certain period of time, because that is the normal procedure. We cannot hasten that procedure. It will be improper for this court...
MR JUSTICE WYN WILLIAMS: Can I make this comment: while I have concerns about the length of the period of detention, ultimately the appeal against the defendant's most recent decision must be conducted in such a way so as to further the interests of justice. That is ultimately the object to be achieved.
MISS ANDERSON: Indeed my Lord.
MISS NAIK: My Lord, can I just indicate, all I was actually seeking was whether procedure side, the actual tribunal itself, whether sitting on judgment or something like that can be avoided rather than requesting the claimant to go faster than he wanted.
MISS ANDERSON: I think that was not clear. In the Abdi case -- I have spoken to the solicitor in respect of those and judgment is awaited in the Court of Appeal on the first application.
MR JUSTICE WYN WILLIAMS: All right. Thank you both very much.