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

The Claimant is an Algerian who is the subject of a deportation order. In this claim he sought a declaration that he had been unlawfully detained; that any further detention would be unlawful, and damages for false imprisonment and for breach of his rights under article 5 of the European Convention on Human Rights.

When the hearing of his claim for judicial review began on June 8^th 2011, the Claimant had been in immigration detention for 4 years and 11 months.

The Claimant was initially detained, at the end of the custodial part of a six month sentence of imprisonment, on July 8^th 2006. He had been served on the day before with notice of a decision by the Secretary of State to deport him. This notice also contained an authorisation for his detention until a deportation order was made against him or until any appeal against the decision to make one was determined in his favour. That authorisation was given by the Secretary of State under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”). The Claimant’s appeal against the decision to deport him was dismissed on October 27^th 2006.

A deportation order against him was signed on November 24^th 2006. He was served with it on November 28^th 2006. The Deportation Order also stated that the Secretary of State authorised the Claimant’s detention under paragraph 2(3) of Schedule 3 to the 1971 Act until he was removed from the United Kingdom.

Since then the Secretary of State has sought without success (as the Secretary of State had previously done) to obtain an emergency travel document (“ETD”) from the Algerian authorities which would enable the Claimant to be deported to Algeria.

On July 21^st 2010 the Claimant in person lodged a claim for judicial review mainly seeking to impugn the decision to deport him, although it also sought to impugn his detention. Permission to make the claim was refused on the papers by Stuart Catchpole QC sitting as a Deputy High Court Judge on September 21^st 2010. A renewed application for permission was made on behalf of the Claimant by his current solicitors.

On March 17^th 2011 Neil Garnham QC sitting as a Deputy High Court Judge gave the Claimant permission to amend his claim for judicial review to focus solely on his detention. On May 11^th 2011 Kenneth Parker J gave the Claimant permission to claim judicial review on his amended grounds.

The Claimant contends that throughout there has been no lawful authority to detain him as there has never been a realistic prospect of the Secretary of State obtaining an ETD for him at all and that, accordingly, there was never a realistic prospect of his being removed within a reasonable period. Alternatively he claims that it was clear at the outset, and at various times thereafter, that his removal would not occur within a reasonable period and that his subsequent detention was accordingly unlawful. The Claimant further contends that his detention was unlawful as decisions that he should be detained were materially influenced until January 2009 by the Secretary of State’s unpublished and unlawful blanket policy that foreign national prisoners, such as the Claimant, should not be released after the custodial part of their sentence came to an end before they were deported regardless of the risk they would pose if released and regardless of whether they could be removed within a reasonable period. He also contends that there were occasions in that period on which there was an unlawful failure to review the question whether he should continue to be detained. Moreover he contends that the Secretary of State has failed to take into account his drug addiction and significant secondary mental health problems when assessing his co-operation with the process for obtaining an ETD and that she failed to take into account his mental health problems when determining whether or not he should be detained. Furthermore the Claimant contends that the Secretary of State has failed to act with appropriate diligence. Finally the Claimant contends in any event that, whatever may have previously been the case, his detention had become unlawful as it had extended beyond a reasonable period and there was no realistic prospect of him being removed within any ascertainable or reasonable period.

The Secretary of State considered that, if the Claimant had been, or if he were to be, released from detention, he would be likely to abscond and to re-offend. The Secretary of State attributes the delay in obtaining an ETD from the Algerian authorities in significant part to the inadequate and misleading information which the Claimant has provided about his identity. She claims that there was always a realistic prospect of removing the Claimant within a reasonable period.

The Secretary of State’s position, at least until immediately before the hearing of this claim began on June 8^th 2011, was also that the Claimant’s immigration detention had always been, and continued to be, lawful under paragraph 2 of Schedule 3 to the 1971 Act. However, at the beginning of the hearing, Mr Colin Thomann, who appeared on behalf of the Secretary of State, confirmed that the Secretary of State now accepted that the Claimant’s detention from July 8^th 2006 until September 2008 had been unlawful as decisions on whether or not he should be detained had been materially influenced by the unlawful blanket policy to which I have referred. He also accepted that the Claimant’s detention had not been reviewed in that period on some occasions with the frequency required by the Secretary of State’s own policy. He accepted that there had been no review between the Claimant’s initial detention and November 2006 and that there had also been a failure to review the Claimant’s case subsequently in February, May and November 2007.

At the outset of this hearing on June 8^th 2011 the Secretary of State’s case was that there was still a realistic prospect of securing his removal as the immigration authorities had been able since September 2010 to get the local police in Algeria to check fingerprints against the criminal and population fingerprint databases held there. Such checks, it was said, could take between 3 to 12 months. The Claimant’s fingerprints were accordingly submitted to the Algerian authorities on January 5^th 2011. Although no match had been found on the criminal databases, there were still, so the Secretary of State contended, checks to be done against the population databases. Although it remained unclear how long that process would take and the Secretary of State accepted that it could not be guaranteed to be successful, she contended that it was likely that an ETD would be forthcoming if a match could be obtained.

On June 10^th 2011, once submissions had been completed on whether any further detention of the Claimant would be lawful, I stated my conclusion on that issue. At that stage I had to consider that issue on the basis of the Secretary of State’s case that there remained the possibility of obtaining a fingerprint match for the Claimant on the population databases in Algeria which the authorities there had been asked to check on January 5^th this year. Although I was satisfied that it was very much more likely than not that the Claimant would re-offend and abscond if released from detention, in my judgment any further detention would have been unlawful in all the circumstances given, in particular, the length of time which the Claimant had already spent in detention. I granted a declaration accordingly and the Claimant was released. I also stated that this did not mean that I had concluded that the Secretary of State had in fact had power to detain the Claimant until then. I indicated that I would reserve my judgment on that and on the other issues on which I had yet to hear all the parties’ submissions and that I would give my reasons for the conclusion I had reached on the lawfulness of the Claimant’s further detention subsequently.

As I shall explain, it only emerged subsequently that the basis on which the Secretary of State had sought to justify the Claimant’s ongoing detention was based on factual assumptions which were not true. This served to reinforce the concerns I already had about the evidence filed to support the Secretary of State’s case.

Following the resumed hearing on July 25^th 2011, I reserved judgment.

In this judgment I shall refer to the Secretary of State as “her” throughout for the sake of simplicity even when the holder of that office was a man. I shall also deal with matters in the following order:

One of the difficulties in this case has been to determine what some of the basic facts are. This has not been assisted by some aspects of the witness statements filed on behalf of the Secretary of State.

false and misleading statements in the evidence filed on behalf of the Secretary of State

These statements have contained false and misleading statements about matters that are material.

Potentially the most serious was contained in a witness statement made on June 3^rd this year by Mr Richard Coy, a senior executive officer in the Criminal Casework Directorate in the United Kingdom Border Agency (“UKBA”) and the lead investigator in that Directorate’s Country Specialist Investigation Team. The Claimant’s case was transferred to that team to deal with on March 17^th 2011. He stated that the facts in his statement were derived from information contained in Home Office files and computer records unless otherwise indicated. In that statement he said:

“7.

The Family Tracing unit came into being partly because of a perception that the Algerian authorities could not carry out the level of checks necessary to gain supporting evidence for an ETD application. This has recently included searches of the Algerian criminal and population databases. The first such submission was achieved on 1^st September 2010. Since that date, the Defendant has had a growing ability to submit fingerprints via the British High Commission in Algiers directly to the Algerian Police for fingerprint comparisons to be conducted on both the population and criminal databases held in Algeria.

8.....On January 5^th 2011, those previously engaged in the investigation of the Claimant on advice given by this team submitted the Claimant’s fingerprints via the British High Commission in Algiers to the Algerian authorities for searches to be conducted on both the criminal and population databases. On 22^nd March 2011, the Claimant was advised that there was no match on the criminal database but searches were continuing. From previous such submissions searches can take anywhere from three to twelve months.....

10....the case has recently been referred to this specialised investigation team. The focus of this investigation will be on the Bengemaa identity...The strategy of this investigation will be to discover evidence that supports the Claimant’s Algerian citizenship. It will not only await the result of the fingerprint search of the Algerian population database but will seek through proper tasking of the Family Tracing Unit the Claimant’s surviving family in Algeria.”

I will return to the so-called “Family Tracing Unit”. What is significant is that it was on the possible outcome of the search of the Algerian population databases that the Secretary of State’s justification for the Claimant’s continued detention rested. Mr Thomann accepted that the ongoing efforts to trace the Claimant’s relatives would not, without more, justify his ongoing detention. It is also right to record that he also candidly told me that the Secretary of State could not say what criteria were used to determine which citizens were placed on the general population database and that it should not be assumed that it had universal coverage even in respect of adult members of the Algerian population. I had also been informed in her first witness statement made on June 10^th 2011 by Ms Sian Jones, a Senior Executive Officer in the Criminal Casework Division of the UKBA, that reference to an Algerian population database was “slightly misleading” as officials at the Algerian Consulate had explained that their records are kept regionally rather than in a single national database. But the Secretary of State’s case was that these ongoing efforts gave rise to a real prospect that the Claimant could be removed within a reasonable period. Thus, for example, in paragraphs [5] and [6] of the Defendant’s skeleton argument dated June 2^nd 2011, reliance was placed on “a manual search of the population fingerprint database in Algiers” “commissioned by the Defendant” as justifying the Claimant’s ongoing detention.

After I had decided on June 10^th 2011 that such efforts did not justify any further detention, Mr Coy made a further witness statement on July 22^nd 2011. This contained three matters that have caused me considerable concern.

First Mr Coy stated that, as a result of enquiries he had made after making his statement on June 3^rd 2011, he had learnt that “the Algerian population database” was only formed in 2009 in line with the adoption of a different process for issuing passports in Algeria. This certainly meant that the Claimant would not be on any such database since he has been in this country since at least January 2001 and there has been no suggestion that he has sought any Algerian passport to enable him to leave this country since that database was formed. I fail to understand how the limitations of this database were not known or discovered earlier given the reliance placed on it by the Secretary of State. In particular it is apparent from Ms Jones’ witness statement on June 10^th 2011 that she had been in discussion with the Algerian Consulate in London on its population database. It is surprising to say the least, although it is obviously not impossible, that no question was asked about its coverage on that or on any other occasion by her (given her position as the UKBA’s “lead” for work undertaken to verify information provided by Algerian foreign national criminals for their ETD applications) or by others given its significance to the Secretary of State’s case.

The second matter revealed in Mr Coy’s second statement was that, in accordance with the new procedure in operation since September 1^st 2010 which was relied on by the Secretary of State, “it is only the criminal database that is being searched”. This, as Mr Coy recognised, made “this particular part of my previous statement highly misleading”, something for which he apologised. The significance of this mistake is that, had I accepted the Secretary of State’s case why ongoing detention was justified, the Claimant might have remained in detention even longer on the basis that a search of the population database or databases in Algeria had been commissioned and was being conducted under this new procedure when in fact no such searches are conducted under it.

Mr Coy explained in his second statement that his earlier statement “was provided on the facts given to me at the time”. Ms Harrison, who appeared on behalf of the Claimant, rightly pointed out that the source of this misleading information was not stated. Nor is it easy to understand. It is one thing to make a mistake about, for example, a particular date on which something may have occurred. It is another to misunderstand completely what this element of the new system, said to have been initiated in September last year, and described in the Secretary of State’s skeleton argument (at paragraph [74]) as “a key recent development”, actually involves. Mr Thomann informed me at the end of the hearing on July 25^th 2011 that Mr Coy’s mistake was that he assumed that the Algerian authorities checked their population database just as the Moroccan authorities do. If true, such an approach fails lamentably to meet the standards any witness in this court is expected to observe, let alone the standards to be expected of a witness on behalf of the Secretary of State on whose evidence reliance is invited to be placed in order to justify the continued detention of an individual.

The third matter arising from Mr Coy’s second statement, that reinforced a concern I already had, was precisely what in substance was new in the procedure initiated in September 2010. This was a matter which Ms Harrison had also raised in her opening submissions. In the Defendant’s skeleton argument the ability to access the population database of fingerprints in Algeria was described as “a significant new tracing weapon” that UKBA had been able to add to “its armoury”. The only other aspect of this new procedure was the ability to check the Algerian’s criminal database for fingerprints. My concern was how new the ability to get the Algerian authorities to check their fingerprint records actually was. The Secretary of State’s case appeared to imply that it was new. I shall need to return to the evidence about what the Algerian authorities required when an ETD was submitted, since it appears to have included the fingerprints of the individual in respect of whom an ETD was sought, and the lack of evidence about what they did with them. But it was plain in any event from other documents that the Home Office has been able to get the Serious Organised Crime Agency (“SOCA”) to ask the Algerian authorities to check their criminal fingerprint database. Thus SOCA had in fact asked the Algerian authorities to check the Claimant’s fingerprints in July 2010 and it appears that the Home Office was told in September 2010 that no trace had been found of them there. In response to a question I put to him, Mr Thomann told me on July 25^th 2011 that SOCA had been able to arrange for such checks to be made by the Algerian authorities for “many years”. Since, as Mr Coy put it in his second statement, SOCA “are a conduit for the United Kingdom authorities”, the only apparent change which occurred in September 2010 in relation to checks by the Algerian authorities of their criminal fingerprint database was that the Home Office no longer had to go through SOCA. It can now approach the Algerian police directly through the British High Commission in Algeria. No doubt this may be simpler administratively. But it is a far cry from justifying any suggestion that a radical new system became available in September 2010 enabling the Secretary of State to seek assistance from the Algerian authorities in identifying the fingerprints of those needing an ETD.

The Secretary of State’s case when the hearing of this claim opened was, therefore, (a) that, since September 1^st 2010 a significant new system had been instituted which enabled her to check the criminal and population fingerprint databases in Algeria and (b) that this meant, notwithstanding the failure to find a match on the criminal database, that there was still a realistic prospect of removing the Claimant within a reasonable period, as a search of the population databases had been commissioned and this might yet produce a positive identification and evidence to support an ETD application. This case was based on the false premises (i) that the search commissioned would include the population database or databases and (ii) that there was a prospect of identifying the Claimant on it or them. The claims about a new system available since September 2010 also implied that previously there had been no ability to check the Algerian criminal fingerprint database, although that was evidently not true.

I accept that Mr Coy did not intend to mislead, or to lie to, the Court. He is the lead investigator in the Country Specialist Investigation Team which recommended those then handling the Claimant’s case that his fingerprints should be transmitted under this new procedure to the Algerian authorities, which they were on January 5^th 2011. Since his fingerprints had already been checked against the criminal fingerprint database in Algeria in 2010, this advice would have made no sense had his team realised that the population databases would not be checked. The same mistaken assumption appears also to underlie advice the Home Office apparently received from their own specialist team in Algiers. Ms Deborah Zanotti, a Higher Executive Officer in the Criminal Casework Directorate of the UKBA suggested in her earlier witness statement that the “Family Tracing Unit in Algiers” had stated that a response from the International Co-operation Bureau of the Algerian Government in March this year that a review of the Claimant’s fingerprints was being pursued might “indicate that [his] fingerprints are on a population database in Algeria”. Ms Jones, who is, as I have mentioned, the UKBA “lead” for this “Unit”, also appears to have shared the misapprehension that these databases were checked. What this sorry saga appears to reveal is a disturbing level of incompetent ignorance in what is apparently the team in the Home Office and the “Family Tracing Unit” in Algiers who are supposed to specialise in investigations to support applications to the Algerian authorities for ETDs.

Unfortunately these have not been the only inaccurate or misleading statements made in the evidence filed on behalf of the Home Office in this case.

the care with which the statements filed on behalf of the Secretary of State were prepared

These matters have given me considerable concern about the degree of care with which the statements filed on behalf of the Secretary of State have been prepared.

I will give one further illustration. On March 17^th 2011 the Claimant was given permission to amend his grounds to rely inter alia on an allegation that the Secretary of State had applied an unlawful, unpublished blanket policy to detain former foreign national prisoners when taking decisions on the Claimant’s detention from the outset and certainly between November 2007 and September 2008. Ms Zanotti says that she was given responsibility for the Claimant’s file as from March 20^th 2011. In her statement made on May 10^th 2011 (which was apparently filed to support the Secretary of State’s opposition to the grant of permission to make this claim), she stated that she had “reviewed the documentation relating to Mr Sino’s detention and have found no indication of the SSHD applying an unpublished policy, which applied a presumption of detention and withdrew all references to a presumption of release.” In a note dated June 7^th 2011, however, it was conceded by the Secretary of State that she was unable to maintain the argument that the Claimant’s detention was not influenced by the unlawful unpublished policy and that she did not contest that she exercised the power to detain unlawfully for that reason between July 2006 and September 2008. If that was indeed the case, as the Secretary of State now accepts, it inevitably raises doubts about the care with which the review of the documentation conducted by Ms Zanotti was conducted.

what the Secretary of State’ evidence does not deal with

Not only have I been concerned by the false statements in, and apparent lack of care when producing, the witness statements filed on behalf of the Secretary of State, I have also been concerned thirdly by what they do not adequately deal with.

These statements did not deal with any clarity with what the general position was, and was thought to be, in relation to obtaining ETDs for Algerian nationals without supporting evidence over the period with which this claim is concerned, and what the Secretary of State might be able to do to improve the prospects of obtaining one. That general position is plainly relevant when considering what the prospects of removing the Claimant during this period were; the extent to which any delays in removing him might be attributable to inadequate or misleading information that he has provided, and whether the Secretary of State has acted with reasonable diligence in taking steps to remove him. I was told that the Secretary of State had filed evidence in another case, now discontinued, that might have addressed the general position about obtaining ETDs from the Algerian authorities. But it appears that the Secretary of State was unwilling to disclose such statements to the Claimant as they were now out of date.

The witness statements filed by the Secretary of State are also silent about what occurred in respect of the Claimant at significant points over that period and what were thought to be the prospects for removing him at times during it. For example the statements did not address the claim made by the Claimant that, even in July 2006 when the Claimant was initially detained, there was no realistic prospect that the Secretary of State would obtain an ETD for him from the Algerian authorities. Mr Thomann had to make such submissions as he could on the basis of such information as could be gleaned from the documentation before the court on this and other matters.

Ms Harrison referred me to the observations of Mumby LJ (with whom Lord Neuberger of Abbotsbury MR and Moses LJ agreed) in I and others v the Home Secretary [2010] EWCA Civ 727, a case in which the Secretary of State had given tardy disclosure of highly relevant documents and had failed to file any evidence whatever in relation to the necessarily serious allegation of unlawful detention. Having referred to a number of well known passages on the Secretary of State’s duty of candour, Mumby LJ stated that:

“54.....We are, after all, here concerned with liberty. Where liberty is in issue the court should not be left to try and make findings as best it can on inadequate evidence. The court should not be left... having to draw inferences; and if the court is left in this position, some explanation should be forthcoming as to why it is.

55.

This is far from being the first occasion when the judges have had to complain about deficiencies in the Secretary of State's response to claims such as the one which is before us. If, despite all this, the court is again left having to draw inferences in such a situation, then the Secretary of State should anticipate that the inferences drawn may well be adverse to him. And that, I have to say, is a very concerning state of affairs; concerning not merely for the reasons I have mentioned but concerning also because it means that on some future occasion an unmeritorious claimant who, in truth, has no legitimate cause for complaint may, because of the way in which the claim is handled by the Secretary of State, recover, and, moreover, recover at the expense of the public, damages and costs to which he is not entitled.”

In addition, by inevitably increasing the time required to deal with a case, such a state of affairs not merely adds unnecessarily to the costs of litigation but also consumes more judicial time than the case should require to the disadvantage of other litigants.

Mr Thomann rightly accepted that I would be entitled to draw adverse inferences against the Secretary of State in the absence of evidence which she could have filed. Indeed I shall do so where that is appropriate, as will appear below. But I am far from persuaded that there are satisfactory explanations for the evidence that has not been filed by the Secretary of State, quite apart from my concerns about the evidence that has been. Indeed Mr Thomann, who throughout has been characteristically candid and fair in his skilful presentation of the Defendant’s case, did not make any substantial attempt to persuade me that there were.

I have been asked to consider voluminous, often repetitive documentation generated within the Home Office, including bail summaries and detention reviews, and to draw inferences from them. This is an exercise not without its own dangers. For example, in one detention review in 2007, it was stated that “an ETD was applied for in 23/11/2006 and confirmation only received 25/05/07 as being unsuccessful”. In fact, as Mr Thomann explained, no application for an ETD was made to the Algerian authorities in November 2006 and the Algerian authorities did not confirm that that application for an ETD had been refused on May 25^th 2007. Some caution is thus required in drawing inferences from the documentation, even when it is apparently unambiguous.

I have sought to reconstruct what occurred, and what was thought to be the position, as best I can from the witness statements which have been filed on behalf of both parties; from the chronologies which they have both provided, and from the documents to which they and counsel referred, always bearing in mind where the onus of proof lies on various issues. I am grateful to both counsel for the assistance which they have sought to provide on this and on other matters raised by this claim. But this is a far from satisfactory basis for determining claims such as this.

I should also note at this stage a further matter about the evidence on the basis of which the issues have to be resolved. There are significant issues, apparently in dispute between the parties, that concern the responsibility of the Claimant himself for the delay in securing an ETD that would enable him to be deported to Algeria.

In paragraph [45] of the Secretary of State’s original Summary Grounds opposing permission for making this claim filed in September 2010 it was asserted that “the Claimant has drawn out [the] process [of obtaining an ETD] due to providing false information about his identity to the UK Border Agency and due to his failure to co-operate with UK Border Agency during the [ETD] process”. There was no witness statement by the Claimant dealing with these allegations (which are repeated in Ms Zanotti’s witness statement) or with certain other matters. Shortly before the hearing the Secretary of State disclosed further internal documents. These included a record made on May 24^th 2011 of a conversation between an official and Mr Toufik Taileb, who is said to work for a NGO in Algiers. Mr Taileb is recorded as saying that, in a conversation he had with the Claimant, “when encouraged to tell the truth, he said he wont because [sic] he doesn’t want to be deported”. This led Ms Jane Ryan, a solicitor acting for the Claimant, to file a witness statement about what the Claimant had told her about the conversation he recalled having with Mr Taileb (whom the Claimant said was from the Algerian Consulate). Ms Ryan does not record any statement by the Claimant specifically denying making the alleged statement to Mr Taileb, although she does say that the Claimant “denied he was withholding information”.

It is also right to note, as I have mentioned, that the contentions advanced on behalf of the Claimant include the assertion that the Secretary of State failed to take into account the Claimant’s drug addiction and significant secondary mental health problems in assessing his co-operation with the ETD process. The Claimant has adduced a report by Professor Katona MD FRCPsych which addresses that question among others. The Secretary of State has not sought to cross-examine Professor Katona on his reports.

There are thus significant disputed issues of fact which are relevant to any assessment of the responsibility of the Claimant himself for the delay in securing an ETD which would enable him to be deported to Algeria.

I would draw attention to, and reiterate, what Sales J said in R (MH) v the Home Secretary [2009] EWHC 2506 (Admin) at [5]-[9] about the normal procedure by which such factual disputes should be resolved in cases such as this where there are claims for damages. In this case, unlike that case, however, there is no relevant witness statement on this point from the Claimant. I have considered the Claimant’s own responsibility for any delays in securing an ETD, therefore, on the basis of such material as I have, drawing such inferences as I think warranted always bearing in mind where the onus of proof lies in respect of any issue to which that matter may be relevant.

The law governing the tort of false imprisonment and immigration detention has been the subject of two recent decisions of the Supreme Court: R (Lumba) v the Home Secretary [2011] UKSC 12, [2011] 2 WLR 671 (to which I shall refer as “Lumba”) and Kambadzi v the Home Secretary [2011] UKSC 23 (to which I shall refer as “SK”).

the ingredients of the tort of false imprisonment

The decisions in Lumba and SK reaffirm the rule, as stated by Lord Bridge in R v Deputy Governor of Parkhurst Prison ex p Hague [1992] 1 AC 58 at p162c-d, that “the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.” In cases of immigration detention the fact of imprisonment is not in issue. The question is whether there is lawful authority to justify it. The onus is on the Secretary of State to show that there is: see eg per Lord Dyson JSC Lumba supra at [44].

statutory provisions which may authorise the detention of those to be deported

Lawful authority for the detention of an individual liable to deportation may be provided by, or derived from, the Immigration Act 1971. Section 3(5) of the 1971 Act renders a person who is not a British citizen liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Paragraph 2 of Schedule 3 to the 1971 Act provides inter alia that:

“(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 sub-paragraph ....(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)".

the substantive limitations on detention which may be authorised by or under paragraphs 2(2) and (3) of Schedule 3 to the Immigration Act 1971

The Supreme Court reiterated in Lumba that there are substantive limitations on the detention which paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act may be taken to authorise. The majority reaffirmed what have come to be known as the Hardial Singh principles. These are that:

It is for the court to determine whether these substantive limitations on the detention authorised by these statutory provisions have been exceeded: see Tan Te Lam v the Superintendent of the Tai A Chau Detention Centre [1997] AC 97 per Lord Browne-Wilkinson at p111a-e, 112c-114e; R (A) v the Home Secretary [2007] EWCA Civ 804 at [62], [67], [75].

As Lord Dyson JSC stated in Lumba supra at [115], “the Hardial Singh principles should not be applied rigidly or mechanically”: their application is a “fact-specific exercise”.

the second Hardial Singh principle

There is no exhaustive list of the factors which may be relevant in determining what may be a “reasonable period”. But 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: see eg Lumba supra at [104]-[105].

An initial absence of any risk of absconding or re-offending does not necessarily mean that a decision to authorise detention pending deportation is unlawful if the Hardial Singh principles are observed and if each case is considered individually: see per Lord Dyson JSC Lumba supra at [52]-[55]. But the risks of absconding and re-offending are always of “paramount importance”, since, if they materialise, they will frustrate the deportation for which the individual may be detained and the likely reasons for it: see per Lord Dyson JSC Lumba supra at [107]-[110] and [121].

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.

There is an apparent tension between the approach which the Supreme Court adopted in Lumba to periods of detention for which it may be said an individual is responsible in the two types of case it did consider. It is not necessarily clear, therefore, what approach should be adopted in respect of periods of detention in these other types of case for which it may be said an individual is responsible.

In relation to delays occasioned by any legal proceedings that an individual brings, the Supreme Court rejected an exclusionary rule that normally the time taken to resolve such legal proceedings should be left out of account in considering whether a reasonable period had elapsed. This exclusionary rule, which had been adopted by the Court of Appeal in that case, had reflected that court’s view that “as a matter of principle, a FNP cannot complain of the prolongation of his detention if it is caused by his own conduct”: see R (WL (Congo)) v Home Secretary [2010] EWCA Civ 111, [2010] 1 WLR 2168, at [102]. The Supreme Court held instead that a fact-sensitive approach to such periods should be adopted. Thus, if a hopeless or abusive legal challenge is pursued and if that was the only reason why the individual was not deported, the period of detention involved should only be given “minimal weight”. By contrast it considered that the fact that a meritorious appeal is being pursued should not mean that the period of detention during the appeal “should necessarily be taken into account in its entirety” when considering whether a reasonable period has elapsed: see at [111]-[121]. It later suggested that, unless the proceedings were hopeless or abusive, the fact that they had delayed deportation was “irrelevant”: see at [144]. Nonetheless on this basis, however, little weight should be given to periods of detention during which a hopeless or abusive legal challenge is being pursued by the Claimant if that is the only reason why he remained in detention, no doubt because it is attributable to his behaviour seeking to frustrate his removal.

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.” This may be contrasted, for example, with the view of the Privy Council in Tan Te Lam v the Superintendent of the Tai A Chau Detention Centre [1997] AC 97 at p114-115 that it was “a factor of fundamental importance”.

There is thus an apparent tension between the approach the Supreme Court adopted in Lumba to periods of detention for which it may be said the detainee is responsible: a period of detention is largely to be disregarded in the case of a hopeless appeal but it should not be similarly disregarded merely because it could have been brought to an end by a detainee agreeing to leave voluntarily. 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?

On behalf of the Claimant Miss Harrison submitted that such things should be treated, like a refusal to return voluntarily, as being in themselves of limited relevance. Mr Thomann’s submissions treated them as being highly relevant.

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. That is not merely the case at common law: see eg R (Rostami) v Home Secretary [2009] EWHC 2094 (QB) at [70]-[73]; R (HY) v Home Secretary [2010] EWHC 1678 (Admin) at [29]. It is also a conclusion to which article 5 of the Convention points. In Mikolenko v Estonia (2009) Oct 9^th App No 10664/05 the European Court of Human Rights found that there was a breach of article 5 of the Convention when an individual was detained when it was impossible to remove him from Estonia without his co-operation which he was not willing to give: see at [65].

Ms Harrison further submitted that, in the absence of exceptional circumstances, there is in effect an outer limit on the period of detention which can be justified except in cases where the detainee has committed and is likely to commit very serious offences or where he poses a risk to national security. In support of such an approach she referred me to the judgments of Mitting J in R (Bashir) v Home Secretary [2007] EWHC 3017 at [21], where he referred to a period of 23 months as being “on any view...at or near the top of the period during which detention can lawfully occur”, and in R (Wang) v Home Secretary [2009] EWHC 1578 at [27], where he stated that a period of 30 months was “right at the outer limit of the period of detention which can be justified on Hardial Singh principles except in the case of someone who has in the past committed very serious offences and who may go on to commit further such offences or who poses a risk to national security”. She also relied on the judgment of King J in R (HY) v Home Secretary supra at [45], where he stated that applying the approach of Mitting J a 45 month period of detention “must be well at the outer limit of any period which can be justified on Hardial Singh principles” in the case of someone who did not meet those conditions.

Mr Thomann submitted that there was no such “outer limit” and that such “an abstract guillotine-based approach” would be an unwarranted gloss on, and a distraction from the correct application of, the second Hardial Singh principle which requires a fact-specific enquiry taking into account all the circumstances of the case. He submitted that the absence of any such “outer limit” was illustrated by the fact that the “outer limit” which the cases cited were taken to exemplify had expanded from 23 to 45 months.

In my judgment Mr Thomann is correct insofar as he suggests that there is no rule that a reasonable period of detention must cease after a particular period other than in the two types of case to which Mitting J referred in Wang. Indeed, if there was such a legal outer limit, it is unclear what the outer limit precisely is and precisely how serious the offences have to be to justify going beyond it. But I do not understand Mitting J to have been enunciating such a proposition. He himself pointed out in Bashir at [22] that “ultimately the question as to whether, and if so when, detention [of an individual who has been detained for 23 months and whose resumed offending would not put the public at very grave risk] becomes unreasonable and so unlawful is a matter of judgment on the facts of an individual case.” Similarly King J in HY thought that an individual falling into such a category might not necessarily be unlawfully detained after 45 months if there was a predicted date for his removal or something sufficiently exceptional to justify his continued detention: see at [37]-[38]. In any event, as Lord Dyson stated in Lumba supra at [115], “the Hardial Singh principles should not be applied rigidly or mechanically”: their application is a “fact-specific exercise”.

Nonetheless, although there may be no legal rule that there is an outer limit to the period for which it may be reasonable to detain an individual pending removal who is unlikely to pose a risk to national security or a very grave risk to the public if released, that does not mean in my judgment that no general guidance at all can be obtained about what a reasonable period in such cases may be from other decisions on immigration detention. Indeed, absent any such general guidance, decisions on the application of the second Hardial Singh principle would be at risk of being arbitrary, depending on the unguided intuition of the individual judge hearing any particular case. The fact that the application of the second Hardial Singh principle is not rigid or mechanical and that it is a fact-specific exercise does not necessarily mean that nothing can be said generally about it. Thus Lord Dyson, for example, was able to recognise in Lumba that, although there are other factors that may be significant in particular cases, the risks of absconding and re-offending will always be of “paramount importance” without denying the need for judgment in individual cases. So equally judges have recognised that it becomes increasingly difficult to justify continued administrative detention as reasonable after certain periods, even when there is a risk of the individual absconding and re-offending, if the risk to the public if the individual is released is not likely to be the most grave or serious. That in my judgment is what Mitting J and King J were indicating in the passages on which Ms Harrison relied. Such an approach is also consistent with the view of Richards LJ in R (MH) v Home Secretary [2010] EWCA Civ 1112 at [63], that “the period of 38 months detention...is a very long period indeed for administrative detention pending deportation. Detention for that length of time merits the most anxious scrutiny.”

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.

the third Hardial Singh principle

The third Hardial Singh principle is one on which the Claimant also relies. As Lord Dyson said in Lumba supra at [103],

“there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention.... if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.”

Ms Harrison submitted that this principle was no less, indeed that it might be regarded as more, important than the second principle as it is a principle designed to protect individuals against unjustifiable detention by the executive. It is a principle she submitted that had been neglected in this case by those responsible for authorising the Claimant’s detention.

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. I shall consider below whether that was done in this case.

As Mr Thomann correctly submitted, however, that is not to say that there is any legal requirement on the Secretary of State to be able to identify a finite time by which, or a finite period within which, removal can reasonably be expected to be effected. As Richards LJ put in R(MH) v Home Secretary supra at [65],

“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.”

As Richards LJ also later observed at [68(v)], however,

“As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention.”

Failure to comply with the first three Hardial Singh principles renders detention unlawful. The legal effect of a failure to comply with the fourth Hardial Singh principle is less clear cut.

Plainly, if an individual is detained for longer than he otherwise would have been but for a failure by the Secretary of State to act with reasonable diligence and expedition to effect removal, he will have been detained for longer than is reasonable.

But the circumstances may be such that, even if the Secretary of State had acted with reasonable diligence and expedition, an individual would still have been in detention and the period for which he has been detained may otherwise still be reasonable. In such a case the Secretary of State’s failure would have no causative effect on the length of such an individual’s detention. As mentioned above, Lord Dyson indicated in Lumba that one of the factors to be taken into account in determining whether an individual has been detained for more than a reasonable period was the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles. This would suggest that any failure by her to act with reasonable diligence and expedition to effect removal would not necessarily of itself in all cases render any further continued detention unlawful. That is also supported by Lady Hale’s statement in SK supra at [64] that “if the Secretary of State is dragging his feet, then the period may become unreasonable.”

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 significance of an unlawful exercise of the discretion to detain

The Supreme Court held in Lumba and SK that compliance with the Hardial Singh principles is necessary, but that it is not necessarily sufficient, to establish a lawful justification for any detention. There will also be no lawful justification for any detention if the discretion to authorise it is not exercised lawfully in accordance with ordinary “public law” principles. It is irrelevant, however, that, had that discretion been lawfully exercised, the individual could, and would, have been detained. That does not mean that he was in fact lawfully detained as there was in fact no lawful justification for his detention: see eg per Lord Dyson Lumba supra at [71] and [88].

One of the grounds on which it was found in Lumba that the discretion to authorise detention would have been flawed was by the application of what the Court found to be the unlawful, near blanket policy adopted by the Secretary of State, which existed between April 2006 and September 2008, not to release foreign national prisoners who were to be deported on the expiry of the custodial part of their sentence, regardless of whether removal could be achieved and regardless of the level of risk that such individuals posed to the public: see at [5]-[6], [21], [39], [63] and [88]. As I have mentioned, the Claimant alleges that that policy was applied to him until January 2009. The Secretary of State concedes it was between July 2006 and September 2008.

Subsequently in SK the majority of the Supreme Court further held that a decision to detain an individual which had been taken lawfully would cease to authorise his continued detention, even if the detention complied throughout with the Hardial Singh principles, if such detention was not reviewed periodically in accordance with the Secretary of State’s own policy on the timing of reviews: see per Lord Hope at [50]-[53], Lady Hale at [73] and Lord Kerr at [78], and [86]-[87]. This may be regarded in effect as a recognition that an initial authorisation of detention may not be given for an indefinite duration; that the Secretary of State must determine for what period it is to be given; and that she must consider whether to continue detention on the expiry of that period. As I have also mentioned, the Secretary of State has also conceded that there were occasions in 2006 and 2007 when the Claimant’s detention was not reviewed periodically in accordance with her predecessor’s policy as it should have been and that the periods of detention immediately following the failure to conduct such a review were also unlawful for this reason too.

the significance of the statutory requirement to detain

Paragraph 2(3) of Schedule 3 to the 1971 Act provides that, if an individual is “already detained.. when [a] deportation order is made, [he] shall be detained unless he is released on bail or the Secretary of State directs otherwise”. Such a provision falls to be strictly construed: Tan Te Lam v Tai A Chau Detention Centre supra at p111d.

In my judgment, therefore, this requirement to detain an individual applies only if the individually is lawfully detained when the deportation order is made against him. It does not transform an unlawful detention into a lawful detention, or confer lawful authority to maintain the detention of an individual who is not already lawfully detained.

Given that the Secretary of State has accepted that the Claimant was not lawfully detained at the time when the deportation order was made against him for the reasons mentioned above, there is no need in this case to consider whether the statutory requirement to continue to detain an individual under this provision provided a lawful justification for the Claimant’s continued detention if that was compatible with the Hardial Singh principles, even if any subsequent decision not to direct otherwise was legally of no effect as it was invalid on “public law” grounds or if there was no regular review of his continued detention.

damages for loss of liberty in the event of false imprisonment

I have also been asked to determine whether the Claimant may be entitled to more than nominal damages for any false imprisonment he has undergone.

Plainly he may be entitled to more than nominal damages in respect of any period of detention which violates any of the four Hardial Singh principles with the result that any period of detention is for that reason unlawful.

The issue which I have been asked to address arises in respect of any period in which detention is unlawful on the basis that the discretion to authorise it was not validly exercised on “public law” grounds or where any authority to detain which has been given by the Secretary of State is not reviewed periodically as it is required to be.

The approach adopted by the Supreme Court in Lumba and SK to the validity of a decision to detain may be thought to clarify what the legal effect is of taking into account an irrelevant consideration or of a failure to have regard to a consideration which there is a legal obligation to take into account. Such a failure renders the decision invalid and thus of no legal effect. Nonetheless relief would normally be refused as a matter of discretion on a claim for judicial review if the decision impugned would have been the same regardless. But that does not alter the resulting absence of a legal justification for the detention. Whether the resulting absence of legal justification for what would otherwise be a tort will give rise to a claim for more than nominal damages, however, is another question. The Supreme Court held in Lumba and SK that an individual unlawfully so detained may be entitled to no more than nominal damages in respect of his loss of liberty during a period of detention whose authorisation was thus flawed. The majority also held that an award of “vindicatory” damages instead in such cases was not appropriate.

There are two related questions involved in determining whether a claimant may be entitled to more than nominal damages by reference to what would have occurred had the Secretary of State not acted unlawfully: (i) on whom the onus of proof lies and (ii) what does that person have to prove.

Ms Harrison submits that, if there is to be an award of nominal damages only, the onus is on the Secretary of State to prove that it was inevitable that the individual would have been detained if the discretion had been exercised lawfully or the required review conducted. She relies in particular on the statement by Lord Dyson JSC in Lumba supra at [95] that

“exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies..., it is inevitable that the appellants would have been detained. In short they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.”

Ms Harrison submitted that the issue was one of law for the court, was there lawful justification for the detention, and that the Secretary of State should not be relieved of the responsibility of showing that was the case.

Mr Thomann contended that the onus was on the Claimant to prove, on the balance of probabilities, that, had the Defendant’s wrong not been committed, his loss would have been avoided. That requires, so he submits, the Claimant to show that his detention was unjustified or that the Secretary of State would not have detained him had she acted lawfully. He contends that the issue did not arise for decision in Lumba but that what was said in that case and in SK supports his submissions.

I accept that this issue did not arise for decision in Lumba. In that case it was clear on the evidence that there was no realistic possibility of a different decision being reached had there been a lawful consideration of whether the claimants should have been detained. Thus Davis J (as he then was) and the Court of Appeal were regarded by the Supreme Court as having held rightly that the detention of the claimants would have been inevitable: see at [56]-[60] and [90]. The claimants’ contention in the Supreme Court was that, even if it was inevitable that they would have been detained if the statutory power to detain had been lawfully exercised, they were nevertheless entitled to substantial, and not merely nominal, damages: see at [91]. The majority of the Supreme Court rejected this contention, notably in the passage from Lord Dyson’s judgment in [95] on which Ms Harrison relied and which I have quoted above. Thus, whilst it is clear that, on the particulars facts in Lumba, the claimants suffered no damage in terms of any loss of their liberty as a result of their unlawful detention, the Supreme Court did not hold that a claimant must be taken to suffer such damage unless it can be shown by the Secretary of State that detention would have been inevitable. That issue did not arise for decision.

In my judgment the issue is not whether there was lawful justification for the detention, as Ms Harrison submitted. This issue arises only when it has been shown that there was no lawful justification for the individual’s detention because of some flaw in the decision making process. The issue concerns the damages to which a claimant may be entitled for loss of his liberty given that his detention involved a tort.

The principle, as Lord Dyson indicated, is that a claimant is entitled to be put into the position in which he would have been if the tort of false imprisonment had not occurred. An individual suffers no loss of his liberty if he would have remained in detention whether or not the tort was committed: see at Lumba supra [93].

That of itself, however, does not answer the question (a) whether it is for a claimant to show that he would not have been detained if the tort had not been committed or (b) whether it is for the Secretary of State to show that he would have been.

In SK Lord Hope stated that “an award of damages for false imprisonment is based on normal compensatory principles”; that an award of nominal damages might have been all that was required in that case, and that the issue of whether the claimant was entitled to more was to be remitted as “the facts have still to be established”: see at [56]-[57]. Baroness Hale agreed that the principle was that “the amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss or damage had things been done as they should have been done”: see at [74]. These statements suggest that the onus is on the claimant (as in other cases) to show that he would have suffered the damage (in this case consisting of the loss of his liberty) for which he seeks compensation. By contrast Lord Kerr took the view in SK (at [89]), which he had previously expressed in Lumba (at [253]), that “if it can be shown that the claimant would not have been released if a proper review had been carried out,..nominal damages only will be recoverable”. This suggests that the onus is on the Secretary of State to show that to be the case if nominal damages only are to be recoverable.

In my judgment what the majority in the Supreme Court decided in both Lumba and SK was that, although false imprisonment is a tort which is actionable per se, an award of damages for it is based on normal compensatory principles. A claimant is thus entitled to be put into the position in which he would have been if the tort of false imprisonment had not occurred. He is entitled to be compensated for any loss of liberty he suffers as a result of the tort. But he will have suffered no such loss if he would have remained in detention whether or not the tort was committed. The normal rule is that it is for the claimant to establish that the defendant’s conduct did in fact result in the damage of which he complains. In accordance with normal principles, therefore, the onus must be on the claimant to prove on the balance of probabilities that he would not have been detained had the tort not been committed.

Ms Harrison did not suggest that there were any grounds which would justify a departure from normal principles other than the particular value which the law places on an individual’s liberty and the need to protect it from unlawful interference by the executive. I accept those points without reservation. But in my judgment they do not justify a departure from the normal requirement that a claimant has to prove that the wrong which he has suffered has caused the loss or damage for which he seeks compensation. The Supreme Court in Lumba and SK held that damages for unlawful detention fall to be assessed on normal compensatory principles and that, notwithstanding the need to vindicate an individual’s right to liberty, “vindicatory” damages may not be awarded when the only compensatory damages payable are nominal.

In considering whether a claimant has shown that he would not have been detained if the unlawful decision or failure to review had not occurred, in my judgment the question is not whether the court would not have detained the claimant had it made the decision at the relevant time. It is whether the Secretary of State would not have detained the claimant had she taken the decision, or reviewed it, lawfully: see Clerk & Lindsell on Torts 20^th ed at [2-21]-[2-22].

There may, of course, be damages payable in respect of false imprisonment which are more than nominal and which are not intended to compensate an individual for the loss of his liberty and any consequential pecuniary loss, such as exemplary damages or damages for injury to feelings or reputation. I have not been asked to consider such matters.

Nor am I going to determine the question whether, if damages which are more than nominal would otherwise be payable, they should, or could, be reduced by reason of any failure on the part of the Claimant to mitigate his loss by failing to co-operate with the Secretary of State in securing an ETD to enable him to travel to Algeria. I was referred in that connection to a decision of Irwin J in R (NAB) v SSHD [2011] EWHC 1991 (Admin). In that case Irwin J found that the damages payable for continuing to detain an individual who was refusing to co-operate should not be extinguished by the fact that had he co-operated he would not have been detained but removed as that would undermine the logic by which illegality was established and as it might easily be read as a signal that almost indefinite persistence by the authorities in detaining such a claimant was acceptable. However he held that the appropriate level of damages for loss of liberty in such a case should be markedly lower than it might otherwise have been. I have not heard full argument on the legal issues nor on how they might affect any damages to which the Claimant may otherwise be entitled. In those circumstances I do not propose to determine any question relating to the amount of any damages payable other than whether the Claimant has shown on the balance of probability that the Secretary of State would not have detained him in the period beginning with his initial detention in July 2006 had she taken the decision to detain him, or reviewed it, lawfully and whether he may thus be entitled to more than nominal damages.

Article 5 of the ECHR

Ms Harrison submits that any detention which is otherwise unlawful in English law is also unlawful as being incompatible with article 5 of the ECHR. However she accepts that in this case article 5 of the ECHR does not add any further ground on which it may be said that the Claimant’s detention was unlawful and that the right to enforceable compensation under article 5.5 in the case of any detention in contravention of that article would not entitle the Claimant to any greater amount in damages than that to which he would be entitled in respect of the tort of false imprisonment. In those circumstances article 5 of the ECHR adds nothing of substance to the Claimant’s case.

introduction

It is common ground that the Claimant is Algerian. That has been confirmed by language tests carried out in early 2010.

The Claimant’s name, age, place of birth and movements before arriving in this country, however, are all in dispute.

The Claimant contends that he was born on August 7^th 1984. He initially told the Secretary of State that he left Algeria only on January 15^th 2001 upon receipt of military call up papers and that he had arrived clandestinely in this country on January 22^nd 2001 aged 16.

The Secretary of State says that “Sino” is not a surname in Algeria. Fingerprint searches with the French authorities have subsequently revealed that the Claimant was arrested by the Public Security Unit in Marseilles on August 18^th 1998 for carrying a category 6 weapon and in connection with an immigration offence. He then told the French authorities that he was Amine Bengemaa; that he was then 19 (when he would only have been 14 if what he now claims is true); and that he was born in Oran in Algeria. The Claimant accepts that the photograph taken by the French police is one of him but he denies that his surname is Bengemaa or that he used that name as an alias. However the Secretary of State points out that he has used at least six known aliases to date.

The Claimant’s claimed age is thus also plainly open to doubt. Indeed it appeared to his own forensic psychiatrist, Professor Katona, that he is older than his stated age and, quite apart from the information he gave to the French police, the certificate of imprisonment gives his date of birth as August 7^th 1972. He himself has given three different dates of birth.

the Claimant’s activities in this country

The Claimant’s first contact with the immigration authorities in this country was on February 6^th 2001 when he claimed asylum. This was refused on April 20^th 2001 after he had failed to appear for an asylum interview. His appeal was dismissed on October 4^th 2001 after he had failed to appear for the hearing without any explanation. The Tribunal found that it had been prevented from assessing the Claimant’s claim for asylum on the merits as a result of his conduct. His appeal rights were exhausted in November 2001.

The Claimant contends that, when not in custody or detention in the period 2001-2006, he was sleeping rough in central London and mixing with a group of people heavily into using Class A drugs. He became addicted to heroin and crack cocaine.

Until the imposition of his last sentence of imprisonment in May 2006 the Claimant was involved in repeated criminal offences interspersed with periods of imprisonment. He failed to comply with requirements to report and to attend court on a number of occasions.

The Claimant was first convicted of shoplifting on March 28^th 2002. He was subsequently convicted on two counts of theft, and of failing to surrender to custody, on December 4^th 2002 and sentenced to three months imprisonment. He was next encountered by Immigration officials on January 25^th 2003 and granted temporary admission. He was arrested for theft on March 7^th 2003 and sentenced to five months imprisonment for that offence on March 14^th 2003. He was next convicted of shoplifting on April 2^nd 2003 and fined £200. He was again granted temporary admission on May 23^rd 2003. The claimant was next encountered by the British Transport Police on September 1^st 2003 but granted temporary admission on October 10^th 2003. He was again arrested for theft offences on November 6^th 2003 and for failing to report to police bail on November 11^th 2003. On December 3^rd 2003 he was sentenced to three months imprisonment for these offences and for having an article with a blade in a public place without a reasonable excuse. He was also sentenced on the same day to three months imprisonment for theft from a person. On December 15^th 2003 he was sentenced to five months and two days imprisonment for attempted theft and two counts of failing to surrender to custody at the appointed time. He was subsequently granted temporary admission at the end of the custodial part of his sentence on June 15^th 2004. But he subsequently failed to report and he was convicted yet again of theft on July 23^rd 2004 and sentenced to six months imprisonment. Later that year, after his release, he was again convicted on October 29^th 2004 of attempted theft from the person and of resisting an officer and was sentenced to two days imprisonment. On November 15^th 2004 he was sentenced to a further two days imprisonment on two counts of handling stolen goods. He was convicted of possessing a Class A drug on January 8^th 2005 and again fined. On April 14^th 2005, however, the Claimant was again convicted of shoplifting. On this occasion he was sentenced to nine months imprisonment. On the expiry of the custodial part of his sentence, the Claimant was again granted temporary admission on July 18^th 2005. It appears, however, that he failed to report as required from August 3^rd 2005 onwards. Meanwhile he was again convicted of possessing a Class A drug and fined £100 on August 30^th 2005. On November 5^th 2005 the Claimant was again convicted of shoplifting and breaching his release licence. He was sentenced to six months imprisonment. He was released from prison on February 12^th 2006. On May 23^rd 2006 he was yet again convicted of attempted theft and theft from a person on March 18^th 2006. He was sentenced to six months imprisonment. It was on the expiry of the custodial part of this sentence that he was served with notice of the decision to deport him and he was kept in immigration detention thereafter until after my decision on June 10^th 2011.

The Asylum and Immigration Tribunal that considered the Claimant’s appeal against the decision to deport him calculated that, during the five and a half year period after his arrival in this country, he received 17 convictions for 26 offences with custodial sentences and that he had spent 38 months in prison (which was over half the time he had been in this country). It found that he was “at high risk of re-offending on release” and that, although his individual offences may not themselves have been particularly “serious”, the overall effect of his offending indicated that he was a risk to the community.

The Claimant has produced a report by Professor Cornelius Katona MD FRCPscyh dated November 23^rd 2010. That report is based on an interview with the Claimant on October 26^th 2010, Professor Katona’s own observations and such materials as he specifically refers to.

Professor Katona diagnosed the Claimant as having Opiate Dependence based on his persistent desire for such drugs and his repeated, unsuccessful attempts to quit; the time and activity that he has devoted to obtaining and using opiates; the activities that he has given up to obtain them; and his continued use of them despite knowledge of the adverse consequences, such as punishment when in detention. Professor Katona also found the Claimant to have moderate depressive symptoms and auditory (and occasional visual) hallucinations. But in Professor Katona’s view the Claimant does not have a primary depressive illness or a primary psychotic illness. The symptoms are best understood in his view as complications resulting from his persistent drug use and intermittent drug withdrawal.

Professor Katona also diagnosed the Claimant as having an “Antisocial Personality Disorder” given that, among other matters, he frequently started fights at school and has had frequent fights in adult life. In considering the occasions on which the Claimant has been segregated for threatening staff and detainees, it was Professor Katona’s opinion in his initial report that his “aggressive behaviour has been a reflection of his anti-social personality disorder and of his frustration (both at his continuing detention and at his difficulties in accessing drugs of abuse).” The Claimant has remained in detention on citalopram (antidepressant), olanzapine (antipsychotic), gabapentin (treatment for chronic pain) and promethazine (antihistamine sleeping tablet).

the effects of immigration detention on the Claimant

Professor Katona was also asked to consider whether the Claimant’s immigration detention had precipitated or exacerbated his condition. Professor Katona referred to research evidence that indicated that immigration detention has an adverse impact on mental health which increases the longer it continues. Although he considered that the prolonged and indefinite nature was an important factor in cases such as the Claimant’s, in his case “this has to be set against the opportunities [he] has been given [in detention] to come off drugs, and the appropriate treatment he has received for his associated psychotic, depressive and anxiety symptoms”. He was also, unsurprisingly, of the view that continuing detention was likely to increase the Claimant’s sense of frustration.

In my judgment there is no clear evidence that the Claimant’s mental health has significantly deteriorated as a result of his detention, albeit that he may well have become increasingly frustrated at what may have appeared to him to be prolonged and indefinite detention. When at large in this country his mental health plainly deteriorated with his opiate addiction and, had he not been detained, it appears most unlikely that he would have sought and received the treatment that has been provided to him whilst in detention. Had the Claimant not been in detention, if anything, it is likely in my judgment that his mental health problems would have been worse, even if for part of the time he had been imprisoned for further offences committed to feed his addiction.

the likely consequences of the Claimant’s release from detention

When the hearing of this claim began it appeared that, if released, the Claimant could live at Barry House in Southwark; that he could be registered as a patient with the Sternhall Lane Surgery and that he would be eligible, as a resident in Southwark, to access support from the South London and Maudesley NHS Trust’s drug and mental health services. He could also receive help to access appropriate services from a charity, Project London.

In his first report Professor Katona stated that

“The prognosis of [the Claimant’s] opiate dependency depends primarily on his motivation to come off drugs and the quality of the support he obtains in doing so. It seems clear that [he] has been provided with considerable and appropriate support in his attempts to come off opiates both in the prison setting (during at least one previous sentence as well as the one which was succeeded by his current immigration detention) but has consistently failed to remain drug-free. Indeed on several occasions he has been noted to have broken the rules of the detoxification contract. In the light of this the prognosis of his opiate dependency is poor.”

Professor Katona added that “if released into the community he would almost be certain to resume drug taking unless he was helped to find substitute activities (such as regular employment) and social contacts.”

In a supplementary report on May 27^th 2011, based on documents with which he had been supplied, Professor Katona noted that the Claimant began taking an opiate replacement, Subutex, in about early December 2010 and that it had been withdrawn slowly to a very low level and then stopped altogether shortly before his supplementary report. He observed that “a much slower and more cautious approach has been successful in enabling [the Claimant] to remain engaged in and to co-operate with a drug reduction programme to the point of stopping opiates altogether”. In Professor Katona’s view “his success to date in adhering to his most recent detoxification regime is an important step forward” but “success in staying drug-free will depend on [him] receiving and accepting close support and monitoring and psychotherapy to confront the issues that caused his drug use and continue to maintain it”.

The Claimant filed a witness statement made on July 21^st 2011 in which he states that he is now living in West Drayton and seeking help from local services there. I note, however, that he says that he is now receiving suboxone to help him avoid opiates.

Whilst I do not discount the Claimant’s recent apparent success in withdrawing from the use of opiates when in detention and the assistance which may be available from local drug and mental health services, it was, and is, far more likely than not in my judgment, given the history of his addiction, that the Claimant will resume his opiate dependence on release from detention. Whatever help may be available to him, he would not be able to obtain regular employment lawfully nor has he any apparently established social network of friends and family to help support him in any efforts he may make to keep free of renewed addiction.

It is also more likely than not in my judgment that he will resume his criminal career in order to fund that addiction. In my judgment, therefore, there was a high risk of his committing further criminal offences if released from detention and there always has been.

So far however the offences that the Claimant has committed in this country to feed that habit have not apparently involved serious violence. They have mainly been offences of theft for which the maximum sentence he has received has been 9 months imprisonment. I bear in mind, however, that his conduct in detention has apparently involved some violence and threats of violence. On arrival at Colnbrook Immigration Removal Centre on December 1^st 2006 he apparently threatened to kill the staff. During his detention it appears that the Claimant has also behaved violently. On June 28^th 2008 it appears that the Claimant assaulted another detainee and, when a member of staff sought to intervene, he assaulted a member of staff. This led to his transfer to HMP Bristol for a period. Threatening behaviour against staff was recorded on November 24^th 2009. More recently it appears that he had to be moved after he had grabbed a female officer without her consent on March 4^th 2010 and he threw a television set at another officer on March 24^th 2010. The Claimant’s chronology also suggests that the Claimant was removed from association on April 4^th 2010 after threatening staff with weapons and committing criminal damage. No doubt such conduct may reflect to some extent the Claimant’s frustration at being detained over a considerable period without apparent hope of release. But I also note that in Professor Katona’s view the Claimant has an Antisocial Personality Disorder that manifests itself in such violent conduct and that frustration in feeding any renewed opiate addiction may induce him to behave in that such a manner. I also bear in mind that he was arrested in Marseilles for carrying a weapon, that he has been convicted in this country for having a bladed article in a public place without a reasonable excuse and that a number of his thefts have been from the person. There is thus a basis for real concern that, if continued, his offending may become more serious in its impact on others.

That concern is also supported by the likelihood that the Claimant will not remain at any permanent address: his previous lifestyle, living rough and associating with drug addicts, does not give any confidence that he will remain there nor does the likely resumption of his criminal career. Moreover, for reasons I shall explain, I think it likely that he will try to abscond. If the Claimant does not remain at any permanent address, then, not only will he be unlikely to receive any help with his opiate dependence, it is also likely that he will also cease to obtain and take the other drugs which he currently does take to assist him to cope.

Nonetheless, although the risk of the Claimant re-offending is, and has always been, high, the likely effects on others of such re-offending are not in my judgment the most serious, although that will be of no comfort to any of those who may suffer as a result. His offences have mainly been offences of dishonesty, the longest sentence he has received for which has been nine months. Although there may be concern that he may also threaten and indeed use violence, the fact is that he appears to have caused no one any serious injury as yet. That is not a reason for complacency. I note in that respect, however, that the Director of the Criminal Casework Directorate, Jonathan Nancekivell-Smith, stated in a detention review on August 11^th 2010 that the Claimant was “known to me personally...His harm is low level but has proven to cause antisocial disruption”. The absence of any serious injury caused by the Claimant and the fact that his offending has mainly involved theft reinforces my conclusion that the Claimant did not, and does not, pose a significant risk of causing serious harm to others if not detained.

In my judgment the Claimant has also been, and remains, very likely to try to abscond. It appears that he was not lawfully in France when he was arrested there in 1998 (as explained below). He evidently entered this country unlawfully. I have already referred to his previous poor compliance with requirements to surrender to police bail and to surrender to custody and his failure to report and attend as required. He has also used a number of aliases. It is also quite apparent that, if he gets the opportunity, he will try to avoid being deported to Algeria. He has undoubtedly not co-operated with, and he has indeed hindered, efforts to remove him (as I shall explain). In my judgment the risk of his absconding if not detained was, and remains, also very high.

The Secretary of State has filed no witness evidence dealing with the procedures followed for obtaining an ETD to enable undocumented individuals to be removed to Algeria over the period to which this claim relates; the prospects of obtaining such ETDs particularly when an application was unsupported by evidence; or how long it took, or was thought to take, to obtain a decision on any such applications.

The Claimant has obtained and produced two relevant Home Office documents. The first is entitled “Travel Document Information Guide”. It was obtained from the Home Office in 2007 by Bail for Immigration Detainees who supplied it to the Claimant’s solicitors. The document is dated March 19^th 2007. It contains information country by country throughout the world indicating inter alia what type of document is required to enable an individual to be removed, the “minimum ETD requirements” and approximate timescales for obtaining a decision on an application if sought “with original evidence”, “with copy evidence” and “with no evidence”. Where there are no established timescales for a particular country that is stated. In the case of Algeria the “minimum ETD requirements” are said to be “IS33, 8 PPT photos, Application Form, Bio data, Fingerprints on Form IFB1 (do not complete ‘Asylum Claimed’ box)”. The timescale given for applications with original or copy evidence was “2-4 mths”. For those applications with no evidence, the timescale given was “6-12 mths”. It appears consistent with the time taken to receive a response from the Algerian authorities in the case of four individuals shortly before this date whose claims for habeas corpus were considered in R (A and others) v Home Secretary [2008] EWHC 142 (Admin). In my judgment it cannot be assumed, however, that 12 months was an outer limit on the time the Algerian authorities then took to determine an application made without supporting evidence. As I shall explain in March 2007, an application for an ETD in respect of the Claimant made in March 2003 was still outstanding and had not been determined by the Algerian authorities and lists of outstanding applications in 2008 showed some applications still outstanding from 2003.

Mr Coy said in his second statement that the “Travel Document Information Guide” was “a living document and constantly updated by the UK Border Agency. Because of the nature of the document the date of any changes in this version cannot be given.” It does indeed have the look of a standard internal document by reference to which officials work. What is unclear from Mr Coy’s statement is whether there remain in the possession, custody or control of the Defendant other copies of this document which were produced at different dates that show any different requirements or timescales.

The other Home Office document produced by the Claimant was received by another firm of solicitors when they were involved in litigation which culminated in a decision in the Court of Appeal in March 2010, R (MC (Algeria)) v SSHD [2010] EWCA Civ 347. This document was entitled “Algeria Guidance on completing ETD application packs”. Despite my request for the Secretary of State to indicate when this document had been produced by the UK Border Agency, by the end of the hearing Mr Thomann was still unable to do so. This document identified the minimum requirements for an application as being an IS33 form, an Algerian application form Pg1 (in English and in Arabic), Application form Pg2 (arrest and detention), bio data form, 8 passport photos, fingerprints, any supporting evidence (translated into English) and full UK birth certificate for any child born here. This document also stated inter alia that:

“• Where applications are referred to Algeria the Algerians have stated in previous meetings that the last known address and the applicant’s place of birth would be checked hence the importance of the address details we submit. The Algerian consulate rejects applications that fail to have a name, surname, date and place of birth, parents names and last known address.

• The province, district and Municipality must be correctly provided and spelt

• The subject’s finger prints can also be compared against a central database in Algeria as part of the verification checks the Algerians undertake.”

It is thus apparent that applications for ETDs to Algeria were supplied together with fingerprints. That was not the case for applications to other countries listed in “Travel Document Information Guide” in March 2007. I infer that the reason why they have been required in the case of applications to the Algerian authorities was (as stated in the second document) that those authorities could check them against a central database. There is nothing to suggest that the process was materially different before March 2007, in particular when the first application for an ETD was submitted in respect of the Claimant in 2003. Nor was the process different in requiring information about an individual and his links with particular individuals and locations in Algeria which the Algerian authorities would check. Accordingly I find that at all material times an application for an ETD to return an individual to Algeria had to contain information about the individual, his links with particular individuals and locations in Algeria which the Algerian authorities would check and the individual’s fingerprints which they could check against a central database. There is no evidence about the frequency with which such fingerprints were in fact checked.

I have mentioned above the estimate in March 2007 in the “Travel Document Information Guide” that it would take 2 to 4 months to receive a response from the Algerian authorities to a request for an ETD which had supporting evidence but 6 to 12 months if it had no such supporting evidence. This advice was also reflected in an internal note in August 2007 about one of the applications in respect of the Claimant, all of which were made without supporting evidence. It also reflects what appears to have been stated in a witness statement made on August 8^th 2007 filed on behalf of the Secretary of State for the purpose of another claim: see R (A and others) v Home Secretary [2008] EWHC 142 (Admin) at [31]. But again, whether that reflected the worst delays must be open to doubt.

Other internal notes indicate, however, that the situation may have deteriorated thereafter. In May and September 2008 internal notes indicated that, although most ETD applications are considered in 6-12 months, it may take up to two years to consider applications with no supporting evidence.

Mr Thomann also very properly drew my attention to the observation by Cranston J in R (M) v Home Secretary [2009] EWHC 629 (Admin) at [8] that lists of outstanding applications presented to the Algerian Embassy by the Secretary of State in 2008 showed “a long list of cases...which have not been resolved”, some going back to 2003, and that the claim made in August 2007 that travel documents in relation to Algeria could be obtained in some 6 to 12 months was not borne out by that evidence.

Neither the internal notes nor the “Travel Document Information Guide” to which I have referred make any reference to the prospects of such unsupported applications being successful.

Mr Thomann did ultimately produce some statistics in respect of those removed administratively. These showed the average number of months that elapsed between (a) an application for an ETD and (b) an ETD being promised or received. These statistics showed an average delay of 8 months for those removed in 2008 and 12 months for those removed in 2009. It is important to appreciate, however, the limitations of these figures: (i) they do not measure the time taken by the Algerian authorities to respond when they refused an application, a process which may take longer (and which may well be a more likely outcome) in the case of those without supporting evidence (a point to which I shall return); (ii) the time taken to deal with successful applications given in these statistics ignores any time which elapsed after the first application but before the last application which was made (thus tending to understate the time awaiting a favourable outcome); and (iii) the times given only reflect the time between the latest application and when the ETD was received or promised. This last point may contribute at least in part to what appear to be the significant times that subsequently elapsed before an individual was then removed in these cases, on average some 6 months in 2008 and some 7 months in 2009. Overall what these statistics show is that the time taken from the making of the last application to removal in those cases where an ETD was successfully obtained was on average 14 months for those removed in 2008 and 19 months for those removed in 2009, an increase which itself closely reflects the increased time which the Algerian authorities took when dealing with these applications.

The Secretary of State has produced no information about the numbers of successful and unsuccessful applications to the Algerian authorities for an ETD. It is not possible to say, therefore, whether they are consistent with the estimates in the internal notes in 2008 about how long it might take to receive a response to such applications. If unsuccessful applications are likely to take longer to process and if most applications were likely to be unsuccessful (as the individuals involved may not be likely to co-operate by providing evidence to facilitate their removal from the United Kingdom), it is still possible that in 2007/2008 most applications may have been dealt with in 12 months as the two internal notes in 2008 suggest. But the position with applications not supported by evidence may well have been worse. Thus the statement that it may take up to two years to consider applications with no supporting evidence may well be accurate in many cases. But, as the lists of outstanding applications for an ETD in 2008 referred to by Cranston J show, this was not an outer limit in all cases.

The Claimant has also produced two documents from a body called the London Detainee Support Group. Both are based on details of those who were said to be, or to have been, “clients” of that Group. It is not possible to ascertain from these documents what proportion of all undocumented Algerian detainees those surveyed represented or how typical their experiences may have been. There are also plainly a number of individuals who feature in both surveys.

The statistics produced by Mr Thomann are not directly comparable with the findings of the London Detainee Support Group, because (i) his statistics deal only with successful applications (which may well have been supported by evidence) whereas those surveyed by the London Detainee Support Group are more likely to be those who were not co-operating with the Secretary of State’s efforts to remove them; and (ii) the overall statistics Mr Thomann provided only measure the time from the making of last application until removal whereas the London Detainee Group were concerned with the time which has elapsed since detention began, which is likely to be earlier than the date of any application for an ETD in the case of an individual who is detained, and do not end with removal (other than in the cases I have mentioned).

It appears likely, however, that the findings of the London Detainee Support Group are not inconsistent with the estimate in the internal notes in 2008 that the majority of applications were determined by the Algerians within 12 months but that it may take up to two years to consider applications with no supporting evidence provided that is not assumed to be an outer limit in all cases. What the examples given in the Group’s documents do indicate forcibly, however, is the fact that the time taken for the Algerian authorities to determine an application is in itself no guide to how long it may be before an individual may be removed. The likelihood of such an application succeeding has to be taken into account.

It appears that the time taken by the Algerian authorities to deal with applications worsened in 2008-9. I have mentioned that Mr Thomann’s statistics showed that the time which had elapsed between the making of an application and an ETD being promised or received increased from 8 months on average for those removed in 2008 to 12 months for those removed in 2009, a 50% increase.

As I have mentioned, in late 2009 individuals in the UK Embassy in Algiers were charged with doing additional verification work before applications for an ETD were submitted: see paragraph [27(2)] above. Three reasons have been given for the institution of this verification work in Algiers. The first (given by Mr Coy) was “a perception that the Algerian authorities could not carry out the level of checks necessary to gain supporting evidence for an ETD application”. The other two reasons (given by Ms Jones) were complaints from the Algerian Consulate in the United Kingdom about the quality of ETD applications and the fact that it had taken “up to 12 months to receive a (sometimes negative) decision on an ETD application”. I cannot reconcile this statement of the upper limit on the time taken to obtain a decision with the internal notes in 2008, Cranston J’s observations in R (M) v Home Secretary supra, the apparent worsening of the position in 2008/9 and the fact that the time which had elapsed between the making of an application and an ETD being promised or received for those removed in 2009 had increased to 12 months on average.

The use of the individuals in the UK Embassy in Algiers to carry out the work I have described before an application was submitted may have resulted in the reduction in the average delay between an application for an ETD and the promise or receipt of an ETD from the Algerian authorities, to 7 months for removals in 2010 and 2011, as indicated in the statistics Mr Thomann produced. This does not mean that overall delays have necessarily been reduced even in the case of successful applications as the time spent in pre-application verification may have increased. But more significantly for present purposes it cannot necessarily be assumed that there was any equivalent reduction in the time taken by the Algerian authorities to determine applications made without supporting evidence (such as those made in respect of the Claimant). I note that in a detention review for the Claimant in July 2010 it was said that “according to the RGDU website, ETD applications without the subject’s address in the country of origin can be lengthy.” What “lengthy” meant in this context was not explained nor has the question been addressed in the evidence filed on behalf of the Secretary of State.

Moreover Mr Coy stated in his second witness statement that “the Algerian authorities will not issue an Emergency Travel Document without supporting evidence.” It is not clear (as this and the other statements filed on behalf of the Secretary of State do not say) when that generally became apparent to the Secretary of State.

Generally then, it would appear that there have been considerable delays in securing a response from the Algerian authorities, delays which appear to have got progressively worse since 2006, particularly in the case of applications without supporting evidence. Moreover at some point it became clear to the Secretary of State that such applications would not be successful. In the absence of evidence from the Secretary of State, it is impossible to be confident what the true position was at various times. It may be the case that the information available to the Secretary of State does not enable the position to be described with confidence. But that is not what the evidence filed on her behalf states.

On the basis of the information available to me I find that in 2006 most, but by no means all, applications for an ETD without supporting evidence were dealt with by the Algerian authorities within 12 months. Those with supporting evidence were determined in a much shorter period. Thereafter the time taken by the Algerian authorities to determine both types of application increased progressively until late 2009. In 2007 and 2008 it appears that most applications were dealt with within 12 months, but those applications made without supporting evidence would tend to take longer and could take up to two years to be determined by the Algerian authorities and in some cases very much longer times, up to 4 or 5 years, could be taken. The reports of the London Detainee Support Group in July 2007 and March 2008 do not appear to be untypical for persons who were not co-operating with the Secretary of State to facilitate their removal to Algeria. They indicate that it was extremely hard to remove such individuals; that, if that was achieved, it took a considerable time; and that in most cases it was not achieved within two years of their detention. Although the time taken by the Algerian authorities to determine applications supported by evidence may have reduced in 2010 and 2011 in part at least as a result of greater efforts on the part of the Secretary of State to ensure that the applications were better prepared and contained fewer errors, I cannot find that the time taken by the Algerian authorities to deal with applications which were not supported by evidence fell. Moreover it became clear to the Secretary of State that generally such applications would not in any event be successful.

An application was at all times more likely to succeed, however, if the information in it giving details about an individual, his relatives and his links with Algeria were correct and if it was supported by evidence. It is thus necessary to consider what the Secretary of State could do to obtain such information and evidence and make sure it is correct.

The Secretary of State can, of course, seek to persuade the individual concerned to provide information and evidence which would support an application for an ETD. In addition section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 empowers the Secretary of State to require a person to take any action she specifies if she thinks that such action will (or may) enable a travel document to be obtained by (or for) that person and that its possession will facilitate that person’s deportation or removal from the United Kingdom. Failure to comply with such a requirement without a reasonable excuse is an offence punishable by imprisonment on indictment for a term not exceeding two years and on summary conviction for a term not exceeding twelve months and/or by a fine. This may provide some incentive for individuals to co-operate who do not want to leave this country but prosecution and conviction may not hasten their removal.

In the case of an individual who refuses to co-operate the ability of the Secretary of State to discover more information or evidence herself may be of more significance. I have been provided with no description of what means the Secretary of State may have to do so. But the types of steps to which my attention has been drawn in this case are as follows:

The Immigration Authorities have submitted three applications to the Algerian authorities in an attempt to secure an ETD for the Claimant.

the first application made in about March 2003

When the Claimant first claimed asylum he stated that his full name was Amin Sino; that he had been born on August 7^th 1984; that he was an Algerian national; that he had a brother, Hakim; that his neighbourhood where he lived in Algeria was Petit; that he had been detained at Chupu police station in Oran in 1997 as he was outside his home during a curfew; and that his last address in Algeria was 53 Mohamed El Houri in Oran which he had left on January 15^th 2001. He claimed that he had travelled by boat to Marseilles, where he stayed a week, before coming by boat to this country.

It appears that the first ETD application was made on or about March 7^th 2003. In it the Claimant stated that his name was Amine Sino; that he had been born on August 7^th 1982 in Algiers; that his parents were Ahmed and Fatima Zino; that their address in Algeria was 53 Rue Faris El-Hawari in Algiers; that his brother, Fouad Zino, who was then 34, lived there; that he had arrived in this country at Heathrow; that his Algerian passport had been issued some 4 years previously, and that it was then with a friend in London. He stated that he had not attended any schools or family doctors in Algeria and that he had not worked there at all. He stated that he had forgotten where he had worshipped in Algeria and the name of his local hospital and that his local police station had been at an unknown location in Algiers. The Claimant certified these details were correct to the best of his knowledge. They were plainly inconsistent in a number of respects with what he had initially told the Secretary of State.

It appears that the Algerian authorities were chased for a response to this application on May 14^th 2003, August 7^th 2003, August 19^th 2003, September 24^th 2003, February 17^th 2004, April 27^th 2004, and June 3^rd 2004. On June 15^th 2004 an official spoke to an official at the Algerian Embassy who said that the name given by the Claimant, Sino, was not Algerian but they were still awaiting a response from Algeria. The authorities were again chased for a response on August 17^th 2004. On December 3^rd 2004 the Algerian Embassy advised Immigration officials that checks were still being conducted. Further updates were sought from the Algerian authorities on January 21^st 2005, February 17^th 2005, and March 18^th 2005. On April 15^th 2005 the Immigration Service Documentation Unit advised other officials that they were unable to provide a time within which the application might be determined; that the reason why it had been outstanding for so long was that the application did not contain any supporting information; that there was very little it could do to speed up the process especially with the lack of evidence; but suggested the Claimant might be re-interviewed on the chance that he might provide new information which might support a further application.

Immigration officials were advised by the Deputy Consul at the Algerian Embassy on May 20^th 2005 that checks were still ongoing. Further updates were sought on May 24^th 2005, July 22^nd 2005, August 19^th 2005, September 22^nd 2005, October 21^st 2005, November 24^th 2005, December 21^st 2005, January 20^th 2006, February 20^th 2006, March 20^th 2006, April 20^th 2006, May 19^th 2006, June 19^th 2006, July 19^th 2006, September 20^th 2006, December 4^th 2006, January 9^th 2007, and March 23^rd 2007.

Eventually the Home Office was informed by the Algerian Embassy in a letter dated May 17^th 2007 that the application had been refused. It appears (from a note made in March 2008) that this application may have been refused as the Algerian authorities did not consider the Claimant to be an Algerian.

the second application made in June 2007

The Claimant was detained on July 8^th 2006. Once the Claimant’s appeal rights against the making of a deportation order were exhausted and while the first application for an ETD was still under consideration, however, the Home Office sought to re-interview the Claimant for the purpose of submitting a further application. He was eventually interviewed by the Criminal Case Directorate’s Operations Team on January 23^rd 2007. He was thought to have given vague answers to most of the questions asked. It was also noted that there were differences in the information provided from that which the Claimant had earlier provided. He was re-interviewed on February 2^nd, February 13^th and March 17^th 2007.

A further bio-data form was signed by the Claimant as being correct on March 14^th 2007. In it he repeated some of the earlier information he had given but he now said that he had been born on August 7^th 1984 and that his place of birth was Acuba in Algeria; he stated that his parents, who he now said were called Ahmed and Zoullem Sino, had been born in Oran but were now dead; that his brother, now referred to as Hakim, had been born in 1969 and lived at the address which the Claimant had provided previously but in Oran, not Algiers; and that he had never had a passport. He now stated that he had worked with his brother selling groceries in the street in Acuba; that he did not know where he had gone to school or who his family doctor may have been; that he had worshipped in a mosque in Acuba, where his local hospital had also been, and that his local police station was the Chapu Police Station.

An application for an ETD with this information appears to have been sent onto the Algerian Embassy somewhat tardily on June 11^th 2007.

The Algerian authorities advised Immigration officials that they had received the new application but stated on June 29^th 2007 that they could not give a time within which the necessary checks would be completed. In July 2007 Returns Group Documentation Unit (“RGDU”) was apparently advised that the application was being reviewed by the Algerian Embassy. On August 17^th 2007 the RGDU confirmed that checks were ongoing and that they might take anywhere between 6 to 12 months. Updates were sought on September 18^th 2007 and January 24^th 2008. On March 6^th 2008 the Claimant was interviewed by the Algerian High Commission by telephone. Immigration Officials were informed by the Commission thereafter that the Claimant had not been very co-operative and that it may be the information he had given was not correct. The Algerian authorities nonetheless informed the RGDU on March 13^th 2008 that they were still considering the ETD application and were awaiting verification checks.

Arrangements were made for an Immigration Officer to interview the Claimant about his nationality but he refused to co-operate. Meanwhile an update was sought from the Algerian authorities in May 2008 reminding them that the case was outstanding. On July 9^th 2008 the Algerian authorities advised immigration officials that they were still carrying out checks on the Claimant but that, given the length of time they were taking, it was unlikely that the checks would be successful.

The Claimant was eventually interviewed to try and ascertain further details about his nationality on August 20^th 2008. He claimed not to remember anything to do with his life or background in Algeria due to his heavy drug use since arriving in the United Kingdom. On September 4^th 2008 it appears that Immigration Officials thought that checks in Algiers were still ongoing “and that they can take up to 2 years”. The Algerian authorities confirmed that checks were continuing on November 4^th 2008.

Meanwhile, on October 28^th 2008 the Claimant was interviewed and new bio-data and ETD application forms were completed. These identified his father as Mohamed Sino and his mother as Fatima Sino; his brother as Mohammed, whose place of birth was Algiers but whose date of birth was not known; and a school in Algiers the Claimant was said to have attended from 1989 to 1994. He now again stated that his family doctor, place of worship in Algeria, his local police station and local hospital were all not known.

Fingerprints and photographs of the Claimant were also taken. The fingerprints taken were sent to EURODAC and Interpol on October 29^th 2008.

Meanwhile discrepancies in the bio-data forms the Claimant had completed were noted.

The Eurodac fingerprint check was returned with no trace on December 3^rd 2008.

On December 17^th 2008 a check was made with the DVLA but was returned showing no trace. On December 18^th 2008 a check was made with HMRC but was returned on December 30^th 2008 showing no trace.

On February 4^th 2009, however, the Interpol check revealed that the same individual had been arrested by the public security unit in Marseilles on August 19^th 1998 for carrying a category 6 weapon and an immigration offence and had given his name as Amine Bengemaa born in Algeria on July 8^th 1979 at Oran. When interviewed on February 6^th 2009 the Claimant claimed he vaguely remembered being in France but he denied that he was Amine Bengemaa or that he had used such an alias.

It appears that the second application for an ETD for the Claimant was never formally rejected by the Algerian authorities.

the third application made in April 2009

A new application for an ETD was prepared under the name of Bengemaa in March 2009. The Claimant informed UKBA staff on March 24^th 2009 that he was born in Ummah in the Province of Oran. Checks revealed that there was no such district. This may have caused some delay but the new application with photographs and fingerprints was submitted to the Algerian authorities on April 30^th 2009.

Reminders were sent to the Algerian authorities that the Claimant’s case was outstanding and requesting an update on July 20^th and September 10^th 2009.

An interview with the Claimant by the Algerian authorities on October 21^st 2009 was cancelled by them but the Claimant was interviewed by them on November 5^th 2009. The authorities said that the Claimant could not give them any further information for verification checks to be completed; that they were unable, therefore, to complete anything further on the Claimant and that they did not believe that he was Algerian. They stated he could be Tunisian or Moroccan.

Thereafter there appears to have been no further response to this application, but Mr Thomann told me that this third application was eventually formally rejected by the Algerian authorities on April 20^th 2011.

efforts to prepare a further application

Following the interview on November 5^th 2009, the Claimant subsequently refused to attend a number of interviews with immigration officers attempting to establish his nationality. On January 5^th 2010 copies of the Claimant’s fingerprints and documents obtained from Interpol were sent to SOCA for checks against records held by the Moroccan and Tunisian authorities. The Claimant attended a language analysis interview on January 21^st 2010. The report on that analysis on February 1^st 2010 confirmed that he was Algerian. It is unclear whether or not the results of this analysis were ever passed to the Algerian authorities. On April 14^th and 16^th 2010 SOCA confirmed that he was unknown to the Tunisian and Moroccan authorities. It subsequently extended its search to France and Germany.

On April 28^th 2010 the Claimant was interviewed and completed a “Family Tracing Project Referral Form”. This stated that he had been born on August 7^th 1984 in Kouba, in Hussein Dey district in the province of Alger; and that he had last lived in a building by Kouba stadium; that his brother, Hakim, lived in Kouba. The form stated that he had worked and shopped in Kouba market; that the police station was in the sixth arrondissement; and he gave the name of another school he had attended. The referral form was submitted to Algiers the following day.

On July 16^th 2010 SOCA extended its fingerprint search to Algeria, Italy and Spain. It informed the Home Office that no trace of the Claimant had been found in their records from Spain (on August 10^th 2010), from Germany (on September 14^th 2010) or from Algeria (on September 22^nd 2010).

It was apparently decided on October 1^st 2010 that contact should be made with an NGO in Algeria.

On December 10^th 2010 the Claimant’s fingerprints were obtained and provided to the “Family Tracing Unit” to pass to the “International Co-operation Bureau” (an Algerian Government Department) with a view to confirming the Claimant’s nationality. It appears that these were submitted on January 5^th 2011.

On March 17^th 2011 the Claimant’s case was transferred to the Country Specialist Investigation Team.

On March 22^nd 2011 it appears that the Secretary of State learnt that no match had been found on the Algerian criminal fingerprint database but that other searches there were continuing. What these may have been is unclear.

On April 10^th 2011 the “Family Tracing Project” in Algiers apparently “re-iterated” that none of the information the Claimant has provided about siblings has proved accurate and no evidence of the address he had provided could be found. This appears to have been based on information from the NGO in Algiers which had been asked to assist.

whether the Claimant has sought to frustrate the process by supplying false or misleading information

Professor Katona noted that the Claimant had left Algeria several years ago “when he was still very young and also when he had already been using recreational drugs for a long time. His memory of his life in Algeria and of the circumstances of his departure are therefore likely to be somewhat blurred.” Professor Katona added, however, that the Claimant “also appears to have a tendency (consistent with his personality disorder) to say what is convenient rather than what is true. These factors will in my view limit to some degree his ability to give a comprehensive account of his circumstances.” Professor Katona also stated that he was “sure that there is a manipulative element to his behaviour”.

It is plain that the Claimant has provided the Secretary of State with inconsistent and false information about himself. Whilst his drug use may have caused his memory of life in Algeria to have become somewhat blurred to some extent, in my judgment it is quite plain that the Claimant has deliberately supplied information about himself to the Secretary of State which he must have known to be untrue and that he did so in order to frustrate attempts to remove him from this country.

Ms Harrison drew attention to the fact that the Claimant has not been prosecuted for an offence under section 35 of the Asylum (Treatment of Claimants) Act 2004 or referred for such a prosecution. That in my judgment does not alter the position. There are many reasons why an individual may not be prosecuted if he fails to co-operate without a reasonable excuse. But on the basis of the information available to me it is clear that the Claimant has deliberately tried to frustrate his removal by supplying false and inconsistent information on more than one occasion and, as he is reported to have told Mr Taileb, he will not tell the truth because he does not wish to be deported.

facilitated voluntary removal

The Claimant has been invited to apply for facilitated return but declined to do so in February 2008 and November 2009. On May 26^th 2010 the Claimant signed a form expressing his decision to return voluntarily to Algeria. I very much doubt that this ever represented any genuine intention on his part to return to Algeria. As Ms Harrison pointed out, even if the Claimant agreed to go voluntarily, he still needs proof of his nationality and he has none. He has not helped the Secretary of State to obtain any since May 2010.

whether the Secretary of State has acted with reasonable diligence and expedition

In my judgment the Secretary of State has not acted with reasonable diligence and expedition to effect the Claimant’s deportation since he was detained on July 8^th 2006.

In his second statement Mr Coy states that the first two applications for an ETD using the information supplied by the Claimant were bound to fail as it was clearly false. He suggests that it would be more than likely that his honesty was taken at face value, as this is the norm, and that there was no reason to suspect that the information which the Claimant had submitted was, with the exception of his nationality, totally false.

If that was the case, then such assumptions were not justified. It is necessary to consider what the Secretary of State knew, or ought to have realised, when the Claimant was detained in July 2006. The Secretary of State then knew that the application to the Algerian authorities for an ETD for the Claimant had been outstanding since about March 2003. She ought to have realised that the information it contained had plainly proved not to be capable of verification by those authorities in that period and that, given the lapse of time, it was virtually certain to fail. The Secretary of State ought to have realised that the information it contained was inconsistent with other information that the Claimant had provided. She knew that the Algerian consulate had said that the surname the Claimant was using was not Algerian. Given that he was thought to have used 8 different names when his detention was initially authorised, the Secretary of State ought to have realised that any name which he claimed to have might not be the Claimant’s true name. When refusing the Claimant’s asylum claim the Secretary of State had also found that he had lied when seeking to remain here. He had claimed to be 16 in September 2000 when he said he had received his military call-up papers, causing him to flee from Algeria, but (as the Secretary of State stated) Algerian males were only liable to be called up when they were 19. Given that the Claimant had also been convicted of many offences of dishonesty since then, the Secretary of State ought to have realised that the information provided by the Claimant about his identity, his relations and other connections and background in Algeria may well have been false and that the explanation for the inconsistencies in the information which he had provided may well have been that he was lying.

The Secretary of State should have realised in July 2006, therefore, that not only was the existing application for an ETD virtually certain to fail but also that, unless other verifiable information and (possibly) supporting evidence could be obtained, then any further application to the Algerian authorities for an ETD (which would be necessary to enable the Claimant to be deported) would likewise fail.

In my judgment the Secretary of State was not entitled, exercising reasonable diligence, to assume that the Claimant was honest. Nor was the Secretary of State entitled, exercising reasonable diligence, to assume that there was no reason to suspect that the information which the Claimant had submitted was, with the exception of his nationality, false. On the contrary there was every reason to believe it was false. Indeed in the letter sent to the Claimant on June 27^th 2006 explaining why he was to be detained it was stated that “you have used or attempted to use deception in a way that leads us to consider you may continue to deceive.”

It is plain that the Secretary of State recognised that a further application for an ETD would be necessary. Subject to one point, I find that the Secretary of State acted with reasonable expedition in submitting that application. Thus, after the Claimant’s appeal against the making of a deportation order against him had been dismissed on October 27^th 2006 and his appeal rights had been exhausted on November 6^th 2006, the procedure for conducting an interview with him for an ETD application was initiated on November 23^rd 2006, the day before the deportation order itself was signed. In the event the Claimant was interviewed for that purpose on January 23^rd 2007. He is said to have given vague answers to the majority of the questions. He refused to continue a further interview on January 29^th 2007. Eventually and after discrepancies in the bio-data on file had been noted, the Claimant was interviewed again on March 17^th 2007 (after an earlier interview had had to be cancelled) and a completed application was received in the RGDU on March 21^st 2007. The application was only submitted to the Algerian authorities, however, on June 11^th 2007.

I recognise that there was little point in the Secretary of State taking any active steps to try to arrange deportation whilst the Claimant was exercising his right of appeal against the decision to deport him: see R (MC (Algeria)) v Home Secretary [2010] EWCA Civ 347 at [36]. The process of preparing a further application for an ETD appears to have been conducted with reasonable expedition, at least until the application was received in the RGDU on March 21^st 2007. Why it then took nearly three months for it to be submitted to the Algerian authorities, however, is unclear.

But that does not appear to me to be the most important issue in considering the diligence with which the Secretary of State approached the making of a further application and thus effecting removal given what she knew or ought to have realised about the Claimant. Eschewing hindsight there was plainly a serious question whether the Claimant’s real name was Sino as the Secretary of State had been told in June 2004 by the Algerian authorities that it was not an Algerian name. There appears to have been no attempt to investigate that matter further; certainly the Secretary of State has not given any evidence that there was before February 2009, although, as Mr Coy put it in his second statement, the dismantling of a story is as important to an investigation as is the building of the truth. During the preparation of this application for an ETD it was evident that there were inconsistencies in what the Secretary of State had been told by the Claimant and he had not been obviously co-operative. The Secretary of State made no attempt, however, to check other sources of information through avenues available to the Home Office. Thus no checks were made with DVLA, HMRC, EURODAC or Interpol until late 2008 and no check on the Algerian criminal fingerprint database through SOCA was sought until July 2010. In her witness statement Ms Zanotti relies on these checks being made to show that the Secretary of State acted with reasonable diligence. The problem is not that they were made. It is when they were made. They should have been made at least when the Claimant was detained. In fact an official noted on May 3^rd 2008 that it might be worth having the Claimant’s fingerprints checked with Interpol as he might have a criminal record elsewhere given his demonstrated propensity to offend. But still nothing was sent to Interpol until October 29^th 2008. No doubt in the event, all of these checks (except that with Interpol) proved fruitless. But, given the lack of success that the first application for an ETD for the Claimant had had and the scepticism with which any information provided by the Claimant should have been regarded, I am not persuaded that the Secretary of State acted with reasonable diligence having regard to these matters. Such checks should have been made at the outset. Ms Zanotti provides no explanation for the delay in making them.

Had these checks been made earlier then the information from Interpol about the Claimant’s arrest in Marseilles in 1998 under the name of Bengemaa would have been discovered far earlier than it was. That does not mean that that is the Claimant’s true surname or that an application for an ETD using it would have been successful. The fate of the third application for an ETD in that name showed that it was not sufficient of itself.

There are other aspects of the way in which the Secretary of State has pursued this matter which tend to indicate a lack of reasonable diligence given the length of time the Claimant had been in detention. For example:

Again, had these steps been taken earlier, it does not follow that the Secretary of State’s efforts to remove the Claimant would have been successful. There is in fact nothing to suggest that they would have been. But, given the time which the Claimant had already spent in detention by November 2009, they do indicate again that Secretary of State has not pursued his deportation with reasonable diligence.

There may be little that the Secretary of State can do to persuade the Algerian authorities to give greater priority generally to dealing with the applications they receive. I cannot say since the Secretary of State has given no evidence of what efforts (if any) have been made in that respect. It appears that the Secretary of State did manage to persuade the Algerian authorities at some point that the Algerian police would check fingerprints against the Algerian criminal fingerprint data base if asked to do so by officials in the United Kingdom Embassy in Algiers, an arrangement that has been in operation since September 2010. That may be an advantage, as Mr Thomann told me that the Algerian authorities do not regularly check the fingerprints supplied with applications for ETDs. However from the limited number of responses so far received, it apparently takes some 3 to 12 months for the Algerian police to respond and, as I have already explained, the Secretary of State has for many years been able to request such a check through SOCA. In this case, however, the Secretary of State has tried to persuade the Algerian authorities to determine the applications made to them. Frequent reminders that the Claimant’s application and others were outstanding were given. Whether there was more that the Secretary of State could usefully have done exercising reasonable diligence to expedite the determination of the second and third applications for an ETD for the Claimant I cannot say as the Secretary of State has given no evidence on that matter.

But, even assuming that no more pressure could usefully have been put on the Algerian authorities to determine these applications sooner, my conclusion is that the Secretary of State has not exercised reasonable diligence in obtaining as much information and evidence as possible to support those applications (which needed to be successful if the Claimant was to be removed). It follows that the Secretary of State did not comply with the fourth Hardial Singh principle. But, even if she had done so, it would not have led to the Claimant being deported.

whether there was ever a realistic prospect of removing the Claimant within a reasonable period

Ms Harrison submitted that there had never been a realistic prospect of removing the Claimant within a reasonable period. When he was initially detained on the expiry of the custodial part of his sentence on July 8^th 2006, there had been an application with the Algerian authorities for an ETD for the Claimant outstanding since about March 2003. It had got nowhere despite such efforts as the Secretary of State had made to progress it. She contends that officials had recognised the true position by granting the Claimant temporary admission on more than one occasion, notwithstanding his continued criminal career. Thus in June 2004, as it did not appear that a travel document was likely to be issued imminently, officials recorded that the Claimant was “clearly not” then removable. In July 2005 the Claimant was again granted temporary admission, it would appear, “in view of the timescale for ETD”. Moreover the Claimant was again granted temporary admission on his release from prison earlier in 2006. Nothing had changed, so Ms Harrison submits, by the time the custodial part of the Claimant’ last sentence of imprisonment (which was not the longest he had had to serve) expired in July 2006.

Mr Thomann submitted that, given the Claimant’s offending history and the decision to make a deportation order against him, it was patently lawful for the Claimant to be detained for a period while efforts were made to obtain an ETD to enable him to be deported.

Given that I have found that the Claimant would have been likely to re-offend and to abscond if he had not been detained, I accept that a period of detention could have been justified in this case if there had been a realistic possibility that an ETD would be obtained and the Claimant deported within a reasonable period. If that was so, the Claimant’s detention would have been lawful. But if that was not so, it would not have been lawful. It would have been patently unlawful given the third Hardial Singh principle. The issue is thus whether that condition was satisfied. The Secretary of State has adduced no witness evidence which expressly addresses that issue.

The minute of the decision to detain the Claimant on the expiry of the custodial part of his sentence, under the heading

“likelihood of removal within a reasonable time scale (outline details of barriers to removal, including availability travel documentation, and likely time needed to resolve these”

simply stated:

“Awaiting ETD”

In my judgment the real question was whether there was a realistic prospect of any future application for an ETD being successful enabling the Claimant to be deported within a reasonable period.

That question was apparently given no consideration when the decision was taken to detain the Claimant.

When pressed Mr Thomann initially suggested that it might have been possible to locate the Claimant’s own passport, which he had said in 2003 was with a friend in London. The Claimant only denied ever having it in March 2007. Mr Thomann was unsurprisingly unable to point any efforts made to locate this passport (even if it still existed in 2003 or in July 2006) and there is no evidence that the Secretary of State placed any reliance on the prospect of finding it. In my judgment the Secretary of State has not shown that there was ever a realistic prospect of obtaining it.

Mr Thomann also sought to contrast the position before July 2006, when periodic enquiries were being made with the Algerian authorities to encourage them to determine the application for an ETD which had been made in 2003, with the position after July 2006 when the Secretary of State could deploy the full arsenal of means available to her that could yield results, not all of which depended on the Claimant’s co-operation.

It was not clear to me why that arsenal only became available to the Secretary of State when the Claimant was detained. Mr Thomann did not submit that one of the means of obtaining an individual’s co-operation which the Secretary of State has in her armoury is to deprive him of his liberty in order to induce him to provide information. That might raise the question whether detention for that purpose would be compatible with the first Hardial Singh principle (that the Secretary of State can only use her power of detention for the purpose of deporting an individual) and with the existence of statutory sanctions in section 35 of the 2004 Act for failure to co-operate with the Secretary of State without a reasonable excuse. In the event it is clear that prolonged detention has not induced the Claimant to co-operate.

Given what had already occurred by July 2006, however, in my judgment the Secretary of State has not discharged the burden on her of showing that there was ever a realistic prospect of the Claimant co-operating with her to facilitate his return to Algeria. It should have been obvious from the inconsistent information that the Claimant had previously provided that the Claimant had not co-operated with, and indeed that he had lied to, the Secretary of State, as she recognised at the time: see paragraphs [179]-[181] above. As I have mentioned, the letter dated June 27^th 2006 to the Claimant explaining why he was to be detained stated that he had used or attempted to use deception in a way that led the Secretary of State to consider that he might continue to use deception. He had not co-operated and he had lied to the Secretary of State plainly because he did not wish to be removed from this country. The Claimant could no doubt be re-interviewed and threatened with sanctions under section 35 of the 2004 Act if he did not co-operate. But the Claimant was evidently not a person to be deterred by such criminal sanctions from pursuing his own ends, as the time which he had already spent in prison demonstrated. In my judgment the Secretary of State has not shown that there was ever any realistic prospect that the Claimant would co-operate in facilitating his deportation.

Was there ever a realistic prospect that the other means that the Secretary of State had available to her would yield sufficient information and evidence in sufficient time to enable the Claimant to be deported within a reasonable period? In my judgment the Secretary of State has not discharged the burden on her to show that there was. Even assuming that the information recorded by the French police about the Claimant had been promptly discovered, the fact is that the third application for an ETD made in April 2009 in the name of Bengemaa effectively had no real prospect of success without the Claimant’s co-operation as events showed. The other matter on which Secretary of State still places some reliance, the apparent existence of a brother somewhere in Algeria, has been known since the Claimant’s initial claim for asylum but there has been no success in locating him without the Claimant’s co-operation. Even with the benefit of inquiries by an NGO in Algeria, no progress in identifying him has yet been made. This is not to suggest that he may never be located or that other information will never come to light that will enable the Secretary of State to deport the Claimant. But in my judgment, even if the Secretary of State had acted with reasonable diligence and expedition in July 2006 (which she did not do), she has not shown that, without the Claimant’s co-operation, she then had a realistic prospect of obtaining sufficient information and evidence within such time as would enable a successful application for an ETD to be made to the Algerian authorities and the Claimant to be deported within a reasonable period.

Accordingly in my judgment the Secretary of State never had power to detain the Claimant.

whether there was subsequently any realistic prospect of the Claimant’s removal within a reasonable period

Assuming, however, that I am wrong in the conclusion that I have reached on the initial application of the third Hardial Singh principle, I will consider the alternative submissions advanced by Ms Harrison on the application of that principle. For this purpose I shall assume that the Secretary of State was at least initially entitled to proceed on the basis that she might be supplied by the Claimant with different, reliable information.

The first application to the Algerian authorities for an ETD after the Claimant’s detention in July 2006 was submitted in June 2007. Ms Harrison contended that immigration officials had recognised in May and September 2008 that it could take a further two years before an ETD might be obtained and even then considered that it was unlikely that the application would be successful. She submits that it must then have been apparent, if it was not so sooner, that the Claimant could not be removed within a reasonable period.

Mr Thomann submitted that there was no reason for the Secretary of State to assume that the application made in June 2007 would prove unsuccessful. It was not correct to assume that the only means of securing the Claimant’s removal rested on the outcome of the checks being made by the Algerian authorities. Efforts continued to be made, for example, to persuade the Claimant to co-operate with Home Office officials by interviewing him. He accordingly submitted that detention remained justified in all the circumstances.

Once the application for an ETD was submitted, the Home Office was informed in June 2007 by the Algerian authorities that they could not give a timeframe within which checks would be completed. In my judgment the note in May 2008 did not recognise in that the application for an ETD could take a further two years to determine. What it recorded was general advice that “although most ETD applications are considered in 6-12 mnths it may take up to 2 years to consider applications with no supporting evidence” and an official’s note that he had found no such supporting evidence for the Claimant’s application having checked through all of the files. The note in September 2008 said much the same, namely that checks in Algiers “can take up to 2 years”. Given an application made in June 2007, that would have indicated that a decision might be forthcoming by June 2009. In fact by this time applications such as the Claimant’s might well have been expected to take significantly longer to determine. But, if the assessment had been correct, a response from the Algerian authorities to this application would possibly only have been received nearly three years after the Claimant’s detention had begun.

Any such response from the Algerian authorities was not guaranteed to be positive. As I have mentioned officials were well aware before the second application was submitted that the Claimant had provided inconsistent information and that he had been (at best) very reluctant to co-operate. Even if they might hope that the information in the second application was true, they should have been sceptical about its prospects of success even if they were of an optimistic disposition. Thus, in February 2008, for example, it was noted in a detention review that the Algerian authorities were not able to give a timeframe when an ETD might become available; that the Claimant “appears not to be fully co-operative with the ETD process, having given conflicting information in his previous bio-data interviews”; and that he already had had one application refused by the Algerian authorities. The prospects of his removal within a reasonable timescale were assessed as “poor”. This remained the assessment throughout 2008.

However the prospects of removing the Claimant within a reasonable period in fact deteriorated after February 2008. It appears that the Home Office was told by the Algerian authorities, after they had interviewed the Claimant by telephone on March 6^th 2008, that they could not verify that he was an Algerian national based on what he had told them. The Claimant refused to be interviewed by the immigration officials on April 1^st 2008. On April 24^th 2008 an official noted that “we appear to be getting nowhere with regards to obtaining an ETD”. It appears that on July 9^th 2008 the Algerian Consulate told Home Office officials that they were still awaiting the outcome of the verification checks but that “given the length of time it is taking it is unlikely the checks will be successful”. The Claimant was eventually interviewed on August 20^th 2008 to try to ascertain further details but he claimed to be unable to remember anything to do with his life and background in Algeria due to his heavy drug use. A Director within the Home Office recognised on September 5^th 2008 that “it would appear unlikely that we will see a positive outcome until the [Claimant] provides more detail about his background in Algeria”. He thought that the Claimant was being “deliberately evasive to avoid deportation”. As it was put shortly afterwards on October 7^th 2008 by another official, “we consider that [the Claimant] has provided deliberately misleading personal details for the ETD application”.

Even if the Secretary of State had been entitled to assume in July 2006 that she might be supplied by the Claimant with different, reliable information and that the application made in June 2007 might have had a chance of success, in my judgment certainly by September 5^th 2008 there was no realistic prospect that the Secretary of State would be able to deport the Claimant within a reasonable period having regard to the time he had already spent in detention.

By then the Claimant had been in detention for 26 months. It was plain that the current application for an ETD might not be determined until June 2009 on the estimates made by officials. In fact, given the lack of verifiable information and the absence of supporting evidence, it was likely that it would have taken even longer for the Algerian authorities to determine that application. Even if there had been any real prospect that its outcome might have been successful, the Claimant would not have been removed until more than 3 years after he was initially detained. True the length of that period would have been due in very significant part to the Claimant’s deliberate attempts to frustrate his deportation. But, even so, such a period would have gone beyond what in my judgment was a reasonable period for the Claimant’s detention pending deportation. But in fact there was no realistic prospect of that application being successful. The Claimant had been lying about himself and supplying false information. Even if he had simply been “evasive”, however, in my judgment there was then no realistic ground on which to expect any productive co-operation from him given the history of the Secretary of State’s attempts to procure it. The Secretary of State had not yet initiated other checks, which she should have done earlier had she been acting with reasonable diligence. But, even if she had been justified so far in not undertaking them, the Secretary of State has not shown that there was any reason in September 2008 to assume that they would provide any information that would itself be capable of supporting a successful application for an ETD which would enable the Claimant to be deported within a reasonable period, given the time which the Claimant had by then spent in detention and the delays encountered in obtaining a response from the Algerian authorities. Had the Secretary of State thought that there was a good prospect that such checks might produce significant useful information, no doubt they would have been undertaken earlier.

I find accordingly that the Secretary of State had no power to detain the Claimant after September 5^th 2008 even if initially she had power to do so.

The reality as it emerges from the contemporaneous documentation thereafter is that the approach adopted by the Secretary of State was that, as Ms Zanotti put it in her witness statement,

“[the Claimant’s] detention can be lawfully maintained while steps are taken to obtain a travel document so long as the SSHD seeks to progress this. It is [the Claimant’s] continued failure to co-operate with the ETD process which has prevented his earlier removal to Algeria. Were he to provide verifiable information, it would allow UKBA to reapply for an ETD and, once this was agreed, removal directions could be set immediately”.

The Claimant’s failure to co-operate has prevented his removal to Algeria. But it is not the case that this meant that his detention remained lawful so long as the Secretary of State was taking steps to obtain a ETD regardless of whether there was any realistic prospect of securing such a travel document and deporting the Claimant within a reasonable period, even one made longer than it otherwise would have been by his lack of co-operation. Such an approach would elevate such a lack of co-operation into a “trump card” justifying indefinite detention for so long as there may be something which the Secretary of State may do which may result in an individual’s removal, regardless of whether it provides a realistic prospect that the individual will be removed before he has been detained for an unreasonable period. It could involve (as in this case) a loss of liberty as the result of the exercise of an administrative discretion for a period far in excess of the maximum sentence that could be imposed following conviction on indictment for failure to co-operate without a reasonable excuse in obtaining a travel document under section 35 of the 2004 Act. In my judgment Ms Harrison’s complaint that the third Hardial Singh principle had been neglected by those responsible for authorising the Claimant’s detention was in fact well-founded. Its importance and implications were not sufficiently recognised by those involved in this case.

whether the Claimant’s further detention was justified when this claim was heard

Ms Harrison submitted that the Claimant’s detention could no longer be regarded as lawful when the hearing of this claim began, even if previously it had been. The Claimant had by then been in administrative detention for 4 years and 11 months. Whilst the Claimant had a history of offending, primarily theft offences relating to his drug addiction, it was not of a kind that could justify such a length of administrative detention. The risk of his absconding could be dealt with by strict conditions on his release, including electronic tagging and curfews, which had not been tried in his case. But that risk could not in any event justify the Claimant’s continued detention. There was moreover nothing to demonstrate that there was a realistic prospect of the Claimant’s removal at all or within a reasonable period. There was no outstanding application for an ETD for the Claimant which the Algerian authorities were considering. There was no evidence that the Secretary of State was in a position to identify when she would be able to remove the Claimant, let alone when she would be able to do so imminently.

Mr Thomann submitted by contrast that there remained a real expectation or prospect that the Claimant would be removed within a reasonable time frame. He accepted that the ongoing efforts in Algeria to trace the Claimant’s brother and any other relatives begun in April 2010 could not of themselves justify the Claimant’s continued detention. But, so he submitted, a key development had been the ability of the Secretary of State to have the Claimant’s fingerprints checked by completing a manual population database check. Although the Secretary of State could not guarantee that this process would be successful and although it remained unclear how long the process of verification would take, the Claimant’s continued detention was justified, so he submitted, given the risk of him absconding, the risk of harm he poses in the community, his lack of community ties and his own contribution to the delays in deporting him.

As I have mentioned, on completion of the argument on this point I stated that, although I was satisfied that it was very much more likely than not that the Claimant would re-offend and abscond if released from detention, any further detention would be unlawful in all the circumstances given, in particular, the length of time the Claimant had already spent in detention. I made a declaration accordingly. The Claimant was subsequently released from detention. I reserved giving my reasons for doing so.

I have already explained above why I reached the view that it was very much more likely than not that the Claimant would re-offend and abscond if released from detention. Even assuming (as I did for this purpose) that the Claimant’s administrative detention for 4 years and 11 months could have remained lawful, in my judgment, for any further detention to have been lawful, it would at least have been necessary for the Secretary of State to have shown that the Claimant’s removal could confidently have been expected to be achieved within a very short period indeed. The Secretary of State could not show that was the case on the basis on which her case then rested.

As Mr Coy stated in his first witness statement, any further ETD application in respect of the Claimant without supporting evidence will fail, as all such applications have done since 2003. Mr Thomann accepted that reliance could not be placed on any information which the Claimant has hitherto provided to secure such evidence. It was abundantly plain that the Claimant was not going to provide the Secretary of State with any assistance which might be useful in securing an ETD. The only apparent hope of obtaining such evidence advanced by the Secretary of State was that it might be yielded as a result of the fingerprint checks of the population databases by the Algerian police commissioned on January 5^th 2011 in accordance with the new procedure said to have been initiated in September 2010. But in my judgment there was no reason to be confident that the result of such manual searches would emerge before the autumn of 2011 and, even then, there was no assurance that the Claimant’s fingerprints would be on any such database so as to enable any evidence in support of any application for an ETD to be provided or subsequently discovered. In my judgment it was simply not good enough to continue the Claimant’s detention in the hope that something might be produced from such searches given the extremely lengthy period the Claimant had already spent in administrative detention. Accordingly I decided to make the declaration I did.

However, as I have mentioned above, the basis upon which I was asked by the Secretary of State to find that the Claimant’s ongoing detention was lawful was factually false. No checks at all were being carried out against any population fingerprint database as a result of the search commissioned on January 5^th this year. The further information about the scope of the fingerprint database (to which I have referred in paragraph [21] above) would only have reinforced my reasons for doubting that any search (had it been conducted) would have been successful. I have already expressed my considerable concern about how the evidence supporting the Secretary of State’s case came to be produced. It is now plain, however, that the Secretary of State had no basis on which the further detention of the Claimant could have been justified when the hearing of this claim began, even if his detention until then had been lawful.

As I have already mentioned the Secretary of State now accepts that the decisions to authorise the Claimant’s detention and the decisions not to release him from detention until September 2008 were influenced materially by the unlawful policy, undisclosed at the time, not to release any foreign national prisoner before he was deported regardless of the risk of re-offending or absconding he posed. The Secretary of State has also accepted that there was no periodic review of the Claimant’s detention between his initial detention and November 2006 and subsequently in February May and November 2007. It follows that the Claimant was not lawfully detained in any event before September 2008.

Given that I have already found that the Secretary of State had no power in any event to detain the Claimant in July 2006 as there was then no realistic prospect that he would be deported within a reasonable period, what would have been the case had the Secretary of State had that power and had not exercised it unlawfully does not arise. However, in case I am wrong, I shall assume that the Secretary of State was at least initially entitled to proceed in July 2006 on the basis that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD. The question is then whether the Claimant has shown on the balance of probabilities that the Secretary of State would not have decided to detain, or continue to detain, him had she acted lawfully in accordance with her published policies.

Until September 2008 these policies generally provided that each case was to be considered on its merits but that there was a presumption in favour of temporary admission or release; that all reasonable alternatives to detention were to be considered and used wherever possible before it was authorised; that there had to be strong grounds to support the belief that an individual would not comply with any conditions of temporary admission or release; that detention could only lawfully be exercised where there was a realistic prospect of removal within a reasonable period; and that detention was to be kept under close review to ensure it remained justified. The Secretary of State’s policy until August 26^th 2010 was also not to detain those with “mental illness” unless there were “very exceptional circumstances”.

Ms Harrison submitted that the Claimant has throughout been suffering from drug-related mental health problems including psychotic symptoms and a personality disorder (which was a form of mental illness for the purpose of this policy: see R (MC (Algeria)) v the Home Secretary [2010] EWCA Civ 347 at [41]-[42]). This meant that in accordance with this policy that there was a strong presumption against the Claimant’s detention.

Mr Thomann referred me in this connection to the decision of Cranston J in Anam v the Home Secretary [2009] EWHC 2496. In his judgment Cranston J made two broad points about this part of the Secretary of State’s policy. The first (at [52]) was that:

“mental health issues only fall to be considered under [this policy] where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. Thus consideration must be given to the nature and severity of any mental health problem and to the impact of continuing detention on it.”

Cranston J’s second point was that the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. Factors such as the risk to the public from further offending and the risk of absconding do not cease to be relevant but that the effect of the policy was “that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified”: see at [53]-[55], [68]. Cranston J’s analysis of the policy was endorsed on appeal by Black LJ in Anam v the Home Secretary [2010] EWCA Civ 1140 at [81].

Mr Thomann submitted that it had not been shown that the Claimant crossed the threshold for the application of this policy. Professor Katona had found that the Claimant did not suffer from any primary depressive or psychotic illness; that his depressive symptoms and his auditory (and occasional visual) hallucinations were complications of his persistent drug use; that his antisocial personality disorder was not a contra-indication to immigration detention; that his drug dependence could appropriately be treated in immigration detention; and that his psychotic symptoms and his depression were not sufficiently severe to make immigration detention unsafe.

In my judgment it has not been shown that the nature of the mental health issues that the Claimant had were of sufficient seriousness to engage this policy. Given their nature, as I have already explained, his mental health problems would probably have been worse had he not been detained and there is no clear evidence that his mental health has deteriorated as a result of detention, although his sense of frustration may well have increased as it increasingly appeared to him to be prolonged and indefinite: see paragraphs [104] to [107] above.

Ms Harrison submitted that, if the lawful published policies had been applied, then, quite apart from the policy relating to mental illness, the Claimant would not have been detained initially or that alternatively that he would soon have been released. She relies on the fact that, before the adoption of the unlawful policy, the Claimant had been given temporary admission and that nothing had changed.

Mr Thomann submitted that the Claimant had not discharged the onus of proof on him in this connection. His detention was amply justified, in any event, by his history of offending and non-compliance. He referred me to the letter dated June 27^th 2006 to the Claimant explaining why the Secretary of State thought he should remain in detention. Not unnaturally Mr Thomann also relied on the decisions to detain the Claimant after the unlawful policy was abandoned and the presumption in favour of release was again applied. Thus in February 2009, for example, before the discovery that the Claimant had been arrested in France in 1998 under the name of Bengemaa, it was stated that “based on the presumption of release, I have considered whether the continued detention of Amin Sino is lawful. In the light of their [sic] risk of further offending and the harm this may cause, as well as the likelihood of absconding, I consider these additional factors outweigh the presumption to release. I therefore authorise their [sic] detention for further 28 days.” Mr Thomann recognised that the detention reviews during 2008 referred to the prospects of the Claimant being removed as poor and to the uncertain timeframe for a decision on an application for an ETD. But he submitted that the Secretary of State would have detained the Claimant consistently with her policy given the risk of his re-offending and absconding, on-going steps to achieve removal and the Claimant’s lack of co-operation. The conclusion that the Claimant would have been detained regardless of any errors was also supported, so he submitted, by the consistent rejection of his bail applications.

The fact that previously the Claimant had been granted temporary admission notwithstanding the application in March 2003 for an ETD does not itself necessarily mean that in July 2006 that Secretary of State would not have detained the Claimant. The Claimant’s continuing criminal career plainly made the making of a deportation order against him justifiable. The Secretary of State had apparently done nothing to seek further information from him since the first application was made. The making of a deportation order ought itself to have prompted the Secretary of State to make more determined efforts to remove the Claimant. As I have explained, I am assuming for present purposes that the Secretary of State was at least initially entitled to assume in July 2006 that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD. If so, then it might be possible for the Secretary of State to remove the Claimant within a reasonable period given what it appears likely that the Secretary of State would then have thought the timetable for obtaining a travel document from the Algerian authorities was. In those circumstances, given the Secretary of State’s view (which was plainly justifiable in the light of the Claimant’s previous conduct) that he was likely to re-offend and not to comply with any restrictions if not detained, in my judgment the Claimant has not shown on the balance of probability that, even given a presumption in favour of release, the Secretary of State would not have detained him had she applied her published policy.

In my judgment the Secretary of State would have continued to detain the Claimant in accordance with her own policies until it became clear that there was no realistic prospect of obtaining verifiable information from the Claimant or from other sources which would enable a successful application for an ETD to be made and the Claimant to be deported within a reasonable period. Nonetheless, in the letter to the Claimant on June 27^th 2006 explaining why he was to be detained, it had been recognised that, given his conduct already, the Claimant might continue to seek to deceive the Secretary of State. Had she been acting in accordance with her own policies on the review of detention, therefore, the Secretary of State acting reasonably should have been alert to the possibility that the Claimant would seek to frustrate his removal, if necessary by deception, when considering whether he should continue to be detained. I have already set out above my conclusion that there was no realistic prospect of obtaining an ETD enabling the Claimant to be deported within a reasonable period by September 5^th 2008 at the latest (assuming that the Secretary of State had at least initially entitled to proceed on the basis that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD). In my judgment, had she been acting not unreasonably in accordance with her own policies, the Secretary of State would have released the Claimant at least by September 5^th 2008 given what she knew and ought reasonably to have appreciated. Although the internal documents to which I have referred might support the conclusion that the Secretary of State acting reasonably should have realised that there was no reasonable prospect of removing the Claimant within a reasonable period earlier than that, the Claimant has not satisfied me on the balance of probabilities that the Secretary of State would have released the Claimant earlier than this had decisions been taken not unreasonably in accordance with her own published policy.

Equally I am not persuaded that the Secretary of State would have kept the Claimant in detention in accordance with her own policies not only until September 5^th 2008 but also thereafter had she been so acting because the Claimant was in fact detained thereafter when the presumption in favour of release was referred to in the reviews. As I have mentioned above, those reviews appear to me in practice to have neglected the principle (which the Secretary of State’s policy itself required compliance with) that an individual should not be detained if there is no reasonable prospect of his removal within a reasonable period having regard to the time he has already spent in detention.

Accordingly I find that, had she been acting not unreasonably and in accordance with her own policies, the Secretary of State would have released the Claimant given what she knew and reasonably ought to have appreciated by no later than September 5^th 2008, even assuming that the Secretary of State was at least initially entitled to proceed in July 2006 on the basis that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD.

For the reasons given, in my judgment the Secretary of State had no power to detain the Claimant when she did on July 8^th 2006. The Secretary of State has not shown that there was then any realistic prospect of obtaining an ETD enabling the Claimant to be deported to Algeria within a reasonable period. The Secretary of State has not shown that there was any realistic possibility of that happening without the Claimant’s co-operation and she has failed to show that there was any realistic prospect of obtaining it.

But, even assuming that the Secretary of State was at least initially entitled to proceed in July 2006 on the basis that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD (which she was not), then the Secretary of State has not shown that, at least as from September 5^th 2008, there was any realistic prospect of obtaining an ETD enabling the Claimant to be deported to Algeria within a reasonable period given the time which he had already spent in detention.

The Claimant was in fact unlawfully detained in any event in July 2006 as the decision to detain him was influenced by the unpublished, unlawful policy that the Secretary of State had that foreign national prisoners should be detained until deported, regardless of the risk they posed and regardless of whether there was a realistic prospect of their removal within a reasonable period. That policy continued to influence decisions on the Claimant’s detention until September 2008 (when for a short period a presumption in favour of detention was applied). However, again assuming that the Secretary of State was at least initially entitled to proceed in July 2006 on the basis that she might be supplied by the Claimant with different, reliable information which might lead to a successful application for an ETD (which she was not), the Claimant has not satisfied me that the Secretary of State would have released him before September 5^th 2008 had she been acting not unreasonably and in accordance with her own policies.

It follows that the Claimant is at least prima facie entitled to damages which are more than nominal for the whole period of his detention or, if I am wrong about whether there ever was any realistic prospect of obtaining an ETD enabling him to be deported to Algeria, at least from September 5^th 2008 until his release from detention in June this year.

Many people may well be very concerned that an individual, who is the subject of a deportation order that was made because his removal would be conducive to the public good, has been able to frustrate his deportation by deliberately not co-operating with the Secretary of State for more than five years. They may well be outraged that such an individual may be entitled to any substantial damages for being detained because he was evidently determined to frustrate any efforts to remove him and the Secretary of State could not arrange his removal without his assistance. Nonetheless, however unattractive in the circumstances this Claimant’s claim for damages for the loss of his liberty may be, an individual’s failure to co-operate with the Secretary of State in facilitating his removal is not a justification in itself for any immigration detention. Such an individual’s failure to co-operate without reasonable excuse renders him liable on conviction on indictment to up to 12 months imprisonment. Immigration detention may only be justified if there is a realistic prospect of removing an individual within a reasonable period taking into account his failure to co-operate. In this case there was no such prospect. The Claimant is according entitled at least prima facie to damages for false imprisonment, which are more than nominal, to be assessed.

I have not considered, however, whether any damages for loss of liberty to which the Claimant may otherwise be entitled fall to be reduced or extinguished by his failure to mitigate his own loss by deliberately not co-operating with the Secretary of State when had he done so he could have been removed and not detained. Nor have I considered whether, but for his detention, he would not have been at liberty in any event, but rather in prison (and, if so, for what periods), given the likelihood of his re-offending. Nor have I considered what damages might be awarded in this case.