SM, R (on the application of) v FM

Introduction:

Procedural history and evidence:

Factual background

Efforts to obtain documents

Before the end of his period of imprisonment the defendant started to put in place arrangements to deport the Claimant. Arrangements were made for an emergency travel document interview with the Bosnian authorities on 5 December 2008 but the interview did not occur because the application forms were not completed by the Claimant. He did not do so until 27 January 2009. Before then, on 19 January, his and his family’s appeals against deportation were dismissed. The application for an emergency travel document was submitted to the Bosnian authorities on 3 February.

It was submitted that this application did not comply with Article 7 of the EU Returns Agreement with Bosnia and Herzegovina, 2007/820/EU. That agreement requires Bosnia and Herzegovina to readmit persons who are proved or may be validly assumed on the basis of prima facie evidence furnished to be nationals of Bosnia and Herzegovina. Article 7 requires the application to contain “to the extent possible” the names, date of birth, and where possible the place of birth, and the last place of residence, and, where appropriate particulars of minor unmarried children and spouses, an indication of the means with which proof or prima facie evidence of nationality or transit will be provided, and a photograph of the person to be readmitted.

After the Claimant’s period of imprisonment ended on 16 April 2009 he was detained under the 1971 Act and remained at HMP The Mount. Deportation orders in respect of him and his family were signed on 15 June. During the summer of 2009 two applications for bail were refused. On the second application, when refusing bail on 24 July, the Immigration Judge stated the Claimant had a very bad criminal record, that the time taken to arrange an interview with the Bosnian authorities did not outweigh the risk of absconding and committing further offences, and that he had no confidence the Claimant would adhere to bail.

A further emergency travel document application for the family was submitted to the Bosnian authorities on 3 September. On 11 September the Bosnian authorities refused to issue a document to the Claimant on the ground that they did not recognise him as a Bosnian national because his birth had not been registered in the relevant region of Bosnia and Herzegovina. They also refused to issue documents to MM and her five children.

On 28 September the Claimant was transferred from HMP The Mount to Brook House Immigration Removal Centre. On 2 October he was asked to complete new emergency travel document forms but only did so partially. On 12 October the Bosnian authorities responded to a request by the UK Border Agency for an interview by stating that an emergency travel document had to be completed before an interview could be arranged.

Further applications for bail by the Claimant were refused on 15 October 2009 and 11 January 2010. The Claimant was interviewed by Immigration Officers on 16 November and 22 December 2009. On 16 November 2009 he refused to complete the paperwork and said he had no further information to provide. On 22 December he refused to give information about what languages he spoke and was abusive. On 4 January 2010, however, the forms were partially completed and the Claimant stated he wished to be interviewed by the Bosnian Embassy.

On 23 February the application of MM and the children for Bosnian travel documents were again turned down by the Bosnian authorities on the ground that the family was not registered in the main register books of birth and citizenship in the territory of Bosnia and Herzegovina. The Claimant’s interview with the Bosnian authorities took place on 24 February. The Bosnian Embassy referred his application for travel documents to the Bosnian Ministry of Foreign Affairs.

A further application for bail was refused on 22 March. The reasons refer to the Claimant’s poor immigration history, his criminality (described as “vicious”), the exhaustion of his appeal rights and the rejection of his claim based on Article 8, and his history of non-co-operation, although stating that may have been resolved. They do not refer to the risk of him absconding. The Claimant is recorded as using offensive language during the hearing and, when told of the refusal, shouting at the Immigration Judge.

On 25 March the Bosnian Embassy informed the defendant of the response of their Ministry of Foreign Affairs to the request made as a result of the interview on 24 February. The Embassy stated the Bosnian authorities could not confirm the Claimant’s identity and citizenship, but agreed to revisit the case if further evidence was provided. On 22 April the Foreign and Commonwealth Office (“FCO”) confirmed that the FCO agreed to take up the case and to assume responsibility for liaising with the Bosnian authorities. On 7 May the UK Border Agency forwarded the case summaries of the Claimant and his family to the FCO and set out the problems encountered. The FCO in Sarajevo responded to the request by the FCO in London in May but, although the Returns Liaison Unit (“RLU”) chased the FCO on 21 June, the information was not passed on to the RLU for over two months. It was only on 26 July that the FCO informed the UK Border Agency what information was required to carry out further checks. They needed details of the Claimant’s parents, including their names and their dates and places of birth.

Before that, on 14 July, the Claimant was seen by an Immigration Officer in an attempt to obtain further information about his identity and nationality. The Claimant gave his name as SM, born 5 July 1979, said he is a Bosnian gypsy and that he thinks of himself as Bosnian because that is the area his mother is from. He stated that he was born in Sarajevo and speaks Serbo-Croat, and that his family had moved around a lot throughout the whole of the former Yugoslavia. He said they always stayed in gypsy camps and received their education at the camps.

On 19 July the Probation Service informed the UK Border Agency that the Claimant’s licence had expired and that it was ending its supervision. A completed NOMS 1 form setting out the risk assessment for the Claimant was also provided. The Probation Service assessed him as posing a high risk of harm to the public and a medium risk of reconviction.

On 23 August Ms Bradley of the RLU informed the German Ministry of the Interior that the United Kingdom authorities had encountered difficulties with the Bosnians refusing to document certain subjects, especially Roma and asked whether Germany had similar problems. The reply stated that the relevant German authorities had not reported any problems. In an email dated 7 September Ms Bradley informed a colleague of a meeting scheduled with Bosnian Embassy officials the next day and said she was going to raise a couple of Roma cases where the Embassy had interviewed but refused to issue papers. In one case there was supporting evidence but in the other there was “no evidence”.

Ms Bradley’s email referred to the EU Returns Agreement with Bosnia, 2007/820/EU which requires Bosnia to readmit persons who are proved or may be validly assumed on the basis of prima facie evidence furnished to be nationals of Bosnia and Hertzogovania. By Article 10 applications for readmission are (subject to extensions) subject to a one year time limit from the time the Requesting State has knowledge that the person does not fulfil the conditions for entry, presence, or residence, Ms Bradley stated that at the meeting with the Bosnian Embassy officials she was going to raise the undertakings in the agreement “as it seems that they may be discriminating against Roma”.

At the meeting on 8 September 2010 the Bosnian Embassy officials provided a list of questions to which they would require answers before they would be able to undertake further enquiries. The questions were: the Claimant’s exact place of birth; the exact details of his last known address in Bosnia; his parents’ date and birthplace and their last known address in Bosnia; and the names of relatives, friends and neighbours, both in Bosnia and in the United Kingdom who could identify him. They also stated that without documentary proof of identity and nationality they would not be able to issue travel documents. Ms Bradley raised the EU Returns Agreement and the Bosnian official said she was not aware that the United Kingdom was a signatory. The minutes also record the case of another person with UNHCR clearance which states that person to be a Bosnian citizen where emergency travel documents had not been issued by the Bosnian authorities.

Almost five weeks later, on 12 October 2010, the questions were forwarded by Mr Afolabi to an Immigration Officer at Brook House IRC. Three weeks after that, on 8 November, the Claimant was interviewed by an Immigration Officer to obtain the information required by the Bosnian Embassy. The Claimant said he was not in contact with anyone from Bosnia and did not know where his mother-in-law (who is in the United Kingdom) was. He became abusive during the interview stating that he had answered the questions at least six times before. In an email dated 9 November to the British Vice Consul in Sarajevo Ms Bradley stated that the Claimant had an alias of Ali M, and in an email on that date to Mr Afolabi she expressed scepticism about the Claimant’s statement that he did not know his mother-in-law’s address. She said she would be surprised if she was not living with her daughter, MM. MM’s evidence (adopting paragraph 13 of Ms Robbins’ Report) is that she has fallen out with her mother, has not seen her since 2009, but knows she is in Manchester and could contact her in an emergency. She also said she is wary of friendship with Roma acquaintances, but Ms Robbins reports that on one of her visits to MM a man (by inference a Roma) was there with a baby.

On 8 November the Bosnian Embassy replied to a request by the Claimant’s solicitors for information as to the process and documents required in support of a Bosnian family’s application for Bosnian passports and travel documents. The Embassy stated that because of technical difficulties regarding a new system of biometric travel documents, it was not receiving applications for passport renewal or issuing passports for Bosnian citizens who live in the United Kingdom and that travel documents are issued to citizens only in emergencies and exceptional cases and are valid only for travel to Bosnia and Herzegovina.

Around this time it was also observed by Ms Bradley that the Claimant had given conflicting information on two biodata forms completed by him. The forms showed different towns of birth and different names for his parents. On 9 November she contacted the FCO in both Bosnia and Serbia for assistance, providing the Claimant’s name and his alias and all the names given for his parents. The response from the FCO in both countries was that they could find no trace of the Claimant. The FCO in Sarajevo requested the Claimant’s fingerprints and these were sent on 1 December 2010.

As far as the other enquiries are concerned, on 3 December 2010 the FCO in Sarajevo reported that subsequent checks had produced no trace of the Claimant or his family. On 13 December the FCO in Belgrade replied in similar terms although it stated that it was waiting for a local authority birth register check which would take about a month. At the date of the hearing the results of the local authority birth register check and the outcome of the enquiries based on the fingerprints made by the FCO in Sarajevo had not been received.

The defendant conducted an additional detention review on 7 January in order to provide up-to-date information for the hearing. The review records that the Claimant was placed in “Removal from Association” at the detention centre twice during November and December 2010 as a result of his consistent abusive and aggressive behaviour towards staff. It is stated that, during his detention, the Claimant has received seven disciplinary adjudications, had informed the psychologist instructed on his behalf one was for testing positive for drugs, another for refusing to give a drugs test, and a third for refusing a direct order. Her report also refers to the occasion (see [11]) when he smashed up and set fire to his cell.

Mr Afolabi’s evidence is also that there are three birth certificates on file for FM, issued respectively on 18 September 2003, 27 October 2006 and 17 August 2009. The father’s name on the first two certificates is stated to be Djordjevic Ringo, born in Serbia, and that on the third certificate is stated to be SM. On 3 January 2011 the Claimant was asked for an explanation of the different names in FM’s birth certificates. His reply was that he had not provided any birth certificates to the UK Border Agency and he implied the Agency had made this up to keep him in detention

The position of FM and other members of the family

As to other developments, on 8 May 2010 FM was granted British citizenship as a person born in the United Kingdom who is over ten years old and has not left since birth. On 10 June the family’s case was referred to the West Midlands Childrens’ Services Department. On 18 June MM and the children made a request for the deportation orders issued against them to be revoked. The order against FM was revoked on 23 June.

Mr Afolabi asked the “Office of the Children's Champion” (hereafter “the OCC”), an office within the umbrella of the Home Office, for its comments on the deportation action and plan to remove the family together to Bosnia in the light of FM’s registration as a British citizen. His memorandum states inter alia that the Criminal Caseworker Directorate “would argue that [FM] returns with his family to Bosnia and that he can always return to the UK as a British citizen when he reaches adulthood and becomes independent”.

On 8 July the UK Border Agency was advised by the OCC that the grant of citizenship to FM did not impact on the family unit because they lived as a family and could be removed as a family unit with a British child accompanying them voluntarily. The advice stated that the Claimant’s detention had been reviewed having regard to the defendant’s duty to safeguard children under Section 55 of the 2009 Act.

On 13 July Karen Tatom of the OCC sent an email recording a discussion with Mr Afolabi. The email states that it is her view that “since the Immigration Courts have presumably already considered section 55 when refusing any more appeals against removal, that we would be able to support you in trying to remove the family” although she wanted to “share this case” with colleagues to alert them to the section 55 challenge.

The email also stated that, on the basis that the Claimant may still be a threat to the public, the OCC would not object to his detention on condition that the Criminal Case Directorate refer MM and the children to the local authority to ensure that the children’s welfare was being considered. Mr Afolabi made a referral to Dudley Social Services on 20 July. The referral stated there was a possibility that the family would wish FM to exercise his right to remain in the United Kingdom if the family is deported and to remain under the Council’s care. Dudley Social Services “initial assessment record” is dated 30 September 2010. It inter alia stated that MM had been unable to tell any of the children that the family was to be deported, that there was “a real possibility” that the children may suffer significant harm should they be deported to Bosnia, and strongly advised that specialist reports be prepared in relation to their welfare before any deportation in line with the European Convention on Human Rights and the UN Convention on the Rights of the Child.

On 14 October Karen Tatom sent Mr Afolabi an email recording a discussion with him. Her email states that they were both of the opinion that SM may be released as emergency travel documents do not seem to be forthcoming. In a follow-up email she clarified this as speculation as to how the Court may view the case rather than a reflection of the UK Border Agency’s official position. The email also states that she had advised Mr Afolabi to refer FM to Social Services for two reasons. The first was “some concern that this boy is under a great deal of emotional pressure to use his British citizen status to ‘anchor’ the rest of his family or [to] help his father resist deportation. UKBA cannot and should not assess issues around possible emotional neglect or abuse, thus you referred the case to Children’s Social Services.” The second reason was that FM’s mother had threatened to leave FM in the care of Social Services if she is removed when the Claimant is deported.

Referring to the fact that Social Services had taken MM at her word when she said that FM did not know about his immigration status, the email records a recommendation that the information (in FM’s statement) showing this was not correct should be put to Dudley Social Services. Mr Afolabi did this in a letter dated 18 October 2010 but, at the date of the hearing had received no response to that letter.

In a memo dated 22 October, Emma Topp of the Criminal Casework Directorate sought authority to split the family for the purposes of detention. The memorandum states that the intention is to remove the family as a whole. It refers to FM’s registration as a British citizen, the revocation of his deportation order, and to the exchanges and recommendations of the OCC. It states that the deportation orders against the rest of the family were revoked because they were incorrectly worded and that new deportation orders would be obtained but does not state there has been any reconsideration of the deportation of the rest of the family in the light of FM’s British citizenship.

On 27 October the UK Border Agency received a pre-action protocol letter dated 18 October in respect of MM and four of her children. The letter asked that they be granted discretionary leave to remain in the United Kingdom since the deportation orders against them had been revoked and no further decision had been made. The reasons that had been given in the UK Border Agency’s letter of 29 July for revoking the deportation orders were that FM was by then a British citizen and the incorrect wording on those made against MM and her children.

Mr Afolabi emailed the OCC on 2 December. In the light of the Order made by me on 11 November, he requested specific advice on the recommendation made by Dudley Social Services that there be a specialised report on the Claimant’s family which could be put before the court. He also asked for the OCC’s view on the deportation of the family in the light of the revocation of the deportation orders against MM and the four non-British children. The response from the OCC is in an email dated 8 December. This states that in its view the position had not changed and that before anyone commissioned a specialist report, Dudley Social Services should take into consideration the fact that FM was aware of his immigration status and update its assessment.

On 8 December 2010 Karen Tatom of the OCC reiterated her view that, as the Claimant’s wife and children can join him in Bosnia, “there is no reason to object to his deportation on child welfare grounds”. Before that, on 6 December, an application was submitted for the registration as a British citizen of FRM, the Claimant and MM’s second son. Mr Afolabi consulted the OCC about whether it wanted to add anything to its advice in view of this development. On 13 December the OCC replied that FRM’s application did not change the advice but that the possibility of a second child being left behind in the United Kingdom should be brought to the Dudley Social Services’ attention.

On 21 December new deportation orders were signed against MM and the non-British children, and, on 23 December, a response to the protocol letter sent on their behalf was faxed and posted to their solicitors. The additional detention review on 7 January 2011 records the advice received from the OCC in July: see [35] – [38].

The recent evidence

The Claimant’s second witness statement was made in response to Mr Afolabi’s statement. He sets out a chronology recording in bold type the period between each step taken by the defendant in her attempts to obtain an emergency travel document, including delays in the first nationality interview conducted by the UK Border Agency, the time taken to pass information from the FCO to the UK Border Agency, and the time taken before requesting further information from him in the light of the requirements of the Bosnian authorities. He asked why all these delays happened

As to his biodata forms, he stated (paragraph 4) that he has given what he believes to be the most accurate answers to the questions asked, that he has always said he did not have a birth certificate and could not say with certainty where he was born. As to the different information given in the biodata form completed on 2 October 2009, he stated that he was told that the Bosnian authorities were unable to trace him with the details he had previously given, that there was no point in giving the same information, and he ought to think of alternative answers that might lead to his identification. He stated (paragraph 5) that the alternative details were given to this end and with a view to assisting the efforts to trace him. As to alternative names, he maintains (paragraph 6) that everyone in the Roma community has a second name, whether an alias or a gypsy nickname, and (paragraph 12) that the name “Djordjevic Ringo” on the two earlier of FM’s birth certificates was an alias he had used in the past. He maintains that he is co-operating and notes that the defendant has not prosecuted him for non-cooperation.

MM’s evidence is that she has appealed against the decision to deport her and the children. She states that, although it has not been suggested that she has failed to complete the form for an emergency travel document accurately or has provided conflicting answers, no documents have been provided to her or her children. She denies lying about FM’s knowledge of the deportation proceedings; what she said related to the younger children. She also denies lying about the whereabouts of her mother, with whom she has fallen out.

Expert Reports

Discussion

The legal framework

Section 5(1) of the Immigration Act 1971 (the “1971 Act”) empowers the Secretary of State to make a deportation order against a person who is liable to deportation. Section 5(5) states that the provisions of Schedule 3 to the Act apply to persons against whom deportation orders are in force and with respect to the detention or control of such persons in connection with deportation. Paragraph 362 of the Immigration Rules provides that “a deportation order requires the subject to leave the United Kingdom and authorises his detention until he is removed”.

By paragraph 1(1) of Schedule 3 to the 1971 Act, where a deportation is in force against any person, the Secretary of State may give directions for his removal to (a) “a country of which he is a national or citizen”, or “a country or territory to which there is reason to believe that he will be admitted”. Paragraph 2 of Schedule 3 to the 1971 Act empowers the detention of those who have been served with notice that they are liable to deportation and those in respect of whom a deportation order has been served. By paragraph 2(3) “where a deportation order is enforced against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom…”. There is also power to detain pending a decision to direct that a person be removed where (see paragraph 16(2) “there are reasonable grounds for suspecting” that the person is someone in respect of whom directions may be given.

The scope of the power of the Secretary of State to detain a person liable to deportation has been considered in many cases. As well as the decision of the House of Lords in R (Khadir) v. Secretary of State for the Home Department [2006] 1 AC 207 there are a line of Court of Appeal decisions from R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 to R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, and many first instance decisions, including those in R (MMH & SHR) v. Secretary of State for the Home Department [2007] EWHC 142 (Admin) 2134; R (Bashir) v. Secretary of State for the Home Department [2007] EWHC 3017 (Admin) 1112; R (A and others) v. Secretary of State for the Home Department [2008] EWHC 142 (Admin); and R (Abdi) v. Secretary of State for the Home Department [2009] EWHC 1324 (Admin).

The power to detain is a broad one. In R(Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207 at [32] Lord Brown of Eaton-under-Heywood stated that detention will be authorised “so long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this”. “Pending” removal or departure in Schedule 2 of the 1971 Act means no more than “until”.

The principles governing the lawfulness of detention pending “removal or departure” were stated slightly differently in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (hereafter “I’s case”) and R (A (Somalia)) v Secretary of State for the Home Department [2007] EWCA Civ 804 (hereafter “A (Somalia)”). In I’s case Dyson LJ (as he then was) considered that the principles could be summarised as follows (at [46] and [47]):

“(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv)

The Secretary of State should act with reasonable diligence and expedition to effect removal.

Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”

In A (Somalia) these principles were re-stated as two core principles by Toulson LJ, with whom Longmore LJ agreed. Toulson LJ stated (at [43]):

“…the Home Secretary’s exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists.”

That purpose is to secure deportation by removal or departure. The second core principle is that the power:

“… may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case.”

Toulson LJ considered (see [45]) that Dyson LJ’s principle (iii) is a facet or a consequenceof these two core principles and not a third principle.

It is clear that, because the liberty of the individual is being curtailed by administrative detention, it is for the court to determine whether the length of detention is reasonable: see A (Somalia) at [62] and [71]. While Toulson LJ stated that there may possibly be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide that itself, and which it will no doubt take account of, it is the court which is the primary decision-maker and which must determine the legal boundaries of administrative detention.

Guidance has been given in these and other cases as to the factors to be taken into account by the court in deciding what period is reasonable in all the circumstances. The factors which are relevant in the present case are: (a) the risk of absconding; (b) the background of the individual and, where the detention follows a period of imprisonment, the risk of further offending; (c) the individual’s co-operation with the requirements of immigration control; and (d) the ability of the Secretary of State to remove the individual to the country or territory in question. There are two aspects to factor (c), lack of co-operation. The first, refusal to accept voluntary repatriation, which was central to the decision in A (Somalia), is not relevant in this case. The second aspect, which is of importance in the present case, is a refusal to co-operate in the arrangements for applying for an emergency travel document: see R (MMH and SHR) v Secretary of State for the Home Department [2007] EWHC 2134 (Admin) at [25], R (WL (Congo)) v Secretary of State for the Home Department [2010] 1 WLR 2668, [2010] EWCA Civ 111 at [102] and R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at [44] and [68 (iii)].

A (Somalia), WL, and MH also show that considerable periods of detention may be held to be reasonable in the light of all the circumstances. In A (Somalia)’s case the Claimant had committed serious sexual offences, posed a high risk of re-offending and absconding, and had refused to return to Somalia voluntarily when this was possible although no enforced removals could be effected. A period of 48 months detention was held not to be unlawful. In MH’s case, involving Somaliland, as well as the question of the route via which removal could be effected, there were questions (see [90] below) about the willingness of the Somaliland authorities to accept removals and the biodata about the Claimant needed to satisfy them that he had sufficient links with Somaliland. In that case, the Claimant had been detained for 40 months. Sales J held that the detention was lawful for the first 38 months of that period. In WL’s case Davis J’s decision that 30 months detention was lawful was upheld by the Court of Appeal.

The last component in the legal framework is section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) on which reliance was also placed, in particular on behalf of FM. The material parts of section 55 provide that the Secretary of State must make arrangements for ensuring that functions “in relation to immigration, asylum or nationality” (section 55(1)(a) and (2)(a)) are discharged “having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom” and (section 55(1)(b)) any services provided pursuant to arrangements made by the Secretary of State relating to the discharge of these functions are provided “having regard to that need”. By section 55(3) a person exercising any of these functions must have regard to any guidance given by the Secretary of State.

In R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 (Admin) at [24], Wyn Williams J stated:

“The question in every case in which it is alleged that a decision-maker has failed to have regard to the factor identified in the statute is whether the decision-maker has in substance had regard to the matter identified. In the written decision produced by the decision-maker he does not have to refer, expressly, to the relevant statutory duties; however, the terms of the written decision must be such that it is clear that substance of the duty was discharged.”

His Lordship also stated (at [30]) that the phrase “have regard to” is normally read as providing a discretion to the decision-maker as to the weight he attaches to the considerations in any given case but (see [31] – [32]) that is subject to guidance and, in the present context to the November 2009 document entitled Every Child Matters: Change for Children issued by the Home Office and the Department of Children, Schools and Families. He stated (at [32]) that the effect of the 2009 guidance is clear and means that:

“in discharging immigration and/or asylum functions concerning children, the best interests of the child will be a primary consideration; it will not be the only consideration, but the use of the word primary means that it will always be at least an important consideration.”

The meaning of “have regard to” in this context was considered in the judgments in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. Lady Hale (with whom Lord Brown and Lord Mance agreed) stated (at [25]) that “a primary consideration” is not the same “the primary consideration”, still less as “the paramount consideration”. She noted the distinction in paragraph 1.1 of the UNHCR’s 2008 Guidelines on Determining the Best Interests of the Child between cases in which “the best interests of the child” are the determining factor for specific actions and those in which they must be a primary but not the sole consideration. She stated this distinguished between decisions (such as the parent with which a child is to live or adoption) which directly affect a child’s upbringing and those (such as where one or both the parents are to live) which do so more indirectly. She approved of the statement of Mason CJ and Deane J in the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 279 that a decision-maker “would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it”. She recognised (at [26]) that identifying the best interests of the children would not “lead inexorably to a decision in conformity with those interests”.

Lord Kerr’s formulation appears to go a little further. He stated (at [46]) that “a primacy of importance must be accorded to” the best interests of a child who will be affected by a decision. He stated that this was not “a factor of limitless importance in the sense that it will prevail over all other considerations” but a factor “that must rank higher than any other” and not “merely one consideration that weighs in the balance alongside other competing factors”. He accepted that countervailing reasons of considerable force could displace the factor. He stated that “the primacy of this consideration needs to be made clear in emphatic terms” and that “what is determined to be in the child’s best interests should customarily dictate the outcome of cases such as the present” and “it will require considerations of substantial moment to permit a different result”.

ZH (Tanzania) has also provided authoritative guidance on two other matters. The first is the approach to be taken where the practical consequence of the removal of a non-citizen parent is that a child who is a citizen of the United Kingdom would also have to leave. The decision accords increased importance to the factor of citizenship in the overall assessment of what is in the best interests of a child. Lady Hale stated (at [30] that “although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child” and at [32] that “the intrinsic importance of citizenship [should not] be played down”. This is because if they move to another country “[t]hey will lose the advantages of growing up and being educated in their own country, their own culture and their own language” and “will have lost all this when they come back as adults”. Lord Hope agreed and stated (at [41]) that “it will hardly ever be less than a very significant and weighty factor against removing children who have that status to another country with a parent who has no right to remain here”.

The second matter concerns the family life established in this country by parents with no leave to be here and who knew of the precariousness of their immigration situation. The Court of Appeal had endorsed the view that the question whether it was reasonable to expect the children to go with their mother to Tanzania was to be judged in the light of the fact that both the children were conceived in the knowledge that the mother’s immigration status was precarious. Lord Hope (at [42]) described this as an error of a fundamental kind and (at [44]) that it was “wrong in principle to devalue what was in the best interests of the children by something for which they could in no way be held to be responsible”. Lady Hale (at [20]) stated that in the decision of the Strasbourg court in Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34, “the reiteration of the Court’s earlier approach to immigration cases is tempered by a much clearer acknowledgment of the importance of the best interests of a child caught up in a dilemma which is of her parents’ and not of her own making”. She considered that, in some earlier decisions, the Commission and on occasion the Court, “concentrated more on the failings of the parents than upon the interests of the child, even if a citizen child might thereby be deprived of the right to grow up in her own country”.

The submissions on behalf of the Claimant

Mr de Mello, supported by Mr Muman, submitted that the requirements of paragraph 1(1) of Schedule 3 to the 1971 Act have not been satisfied and removal directions cannot lawfully be issued in the Claimant’s case because the evidence is that he is not a national or citizen of Bosnia and Herzegovina and there is no reason to believe that the Bosnian authorities will admit him. Indeed there is every reason to believe that they will not admit him.

In support of this Mr De Mello relies on the following matters:

The submissions on behalf of the Interested Party

Mr Muman, supported by Mr de Mello, submitted that the requirements of section 55 of the 2009 Act have not been fulfilled because FM’s wish not to leave the United Kingdom and the fact that it is not in his best interests to separate him from his father has not been addressed by the defendant or by the OCC. He particularly relied on what he described as a flawed approach to their consideration of the impact of the grant in May 2010 of British citizenship to FM and the position of FRM, the Claimant and MM’s second son, who has applied for and will be granted British citizenship on the same basis as FM was. The circumstances of the family, he submitted, mean that it is unlikely that the Claimant will be removed imminently. Apart from the citizenship issue, he pointed to the fact that the family’s deportation order was cancelled and the appeal they have filed against their deportation.

Mr Muman submitted that ZH (Tanzania) provides clear support for the submissions he made at the various hearings and renders the very basis of the decision to detain the Claimant unlawful because a proper consideration of the positive duty under section 55 of the 2009 Act and Article 8(2) of the European Convention would require the decision to deport the Claimant to be revisited by the Secretary of State and that if the decision to deport cannot be maintained, neither can the decision to detain. The decision shows that the OCC’s approach was predicated on a flawed assessment of the children’s best interests because it played down the importance of FM’s British citizenship.

The submissions on behalf of the defendant:

Miss Candlin submitted that, although there have been difficulties in obtaining travel documents, these are largely the result of the Claimant’s non-cooperation. She relied in particular on MH’s case (see [62] above) and submitted that, while the process is a slow one, the defendant has reason to believe there is a reasonable prospect of the Bosnian authorities providing the Claimant and his family with them and admitting them to Bosnia. The period for which the Claimant has been detained is significantly shorter than that held to be lawful in the cases of MH and A (Somalia). In the light of the assessment of his risk of re-offending and absconding, Miss Candlin submitted that immigration detention remained reasonable. As to section 55 of the 2009 Act, she submitted that the interactions between the UK Border Agency, the OCC and Dudley Social Services showed the defendant had regard to FM’s interests which, as TS’s case showed (see [65]), while the primary consideration, is not the only one.

Directive 2008/115/EC:

At the hearing in November Mr de Mello relied on Article 15(5) and (6) of Directive 2008/115/EC, a Directive of the European Parliament and the Council “on common standards and procedures in Member States for returning illegally staying third-country nationals”, the “Returns Directive” for a submission that immigration detention over 18 months is unlawful. I considered this ground to be utterly unarguable and refused permission. I now give my reasons for doing so.

The Returns Directive is a very unpromising basis for any submission in English Courts. First (see recital 26), the United Kingdom has opted out it. Secondly, in R (WL (Congo)) v Secretary of State for the Home Department [2010] 1 WLR 2668 at [107], although the Court of Appeal stated the point had not been raised in the grounds of appeal, after referring to the opt-out it also stated the Claimant in that case could not rely on the Directive. As Miss Candlin observed, and contrary to paragraph 46 of Mr De Mello’s skeleton argument, it is not clear how his argument on this matter differs from that advanced and rejected by the Court of Appeal in WL (Congo).

Mr de Mello’s submission appeared to be that the Directive could be regarded as setting out international norms for limiting immigration detention which might inform both the common law and the interpretation of Article 5(1)(f) of the European Convention on Human Rights. This too is unarguable. The Directive is not the only Directive containing provisions about immigration detention (see for example Articles 6(2), 7(3) and 16(3) of Directive 2003/9/EC and Article 18 of Directive 2005/85/EC). To regard the Returns Directive as setting out any general international norms for limiting immigration detention which might inform the common law or the interpretation of Article 5(1)(f), its provisions would have to be part of customary international law; that is (see R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 at [23]) a general and consistent practice of states followed by them from a sense of legal obligation. There was no material before me which supported that proposition. It seems highly unlikely that a general and consistent state practice of a fixed time limit for immigration detention regardless of the circumstances of a particular case could be shown.

Mr de Mello sought to deploy a number of decisions of the Strasbourg court on Article 5(1)(f), including Application 30471/08 Abdulkhani and Karimnia v Turkey, and Application 6909/08 Alipour v Turkey, and a paragraph in the Opinion of the Advocate-General in the decision of the European Court of Justice in Case C-357/09 PPU Proceedings ConcerningKadzoev [2010] 3 WLR 477. The Article 5 cases relied on do not, in my judgment, assist. In Abdulkhaniand Karimnia the relevant provisions of the Act on the Residence and Travel of Foreigners in Turkey provided that foreigners whose stay in Turkey is considered to be incompatible with inter alia the administrative requirements of the Ministry of the Interior shall be invited to leave Turkey “within a fixed time limit”. The violation in that case arose because no such time limit had been fixed. Alipour’s case simply applied the decision in the earlier case.

Conclusions:

I shall first deal with my conclusions on the submissions as to the Claimant’s position other than those concerned with section 55 of the 2009 Act, that is with the case advanced by Mr de Mello. I will then deal with those on section 55 of the 2009 Act and ZH (Tanzania) which were advanced with vigour and skill by Mr Muman.

At the time of the Claimant’s detention and for some time thereafter, the test in paragraph 1 of Schedule 3 to the 1971 Act as interpreted in Yassine v Secretary of State for the Home Department [1990] Imm AR 354 was clearly satisfied. The question is whether, in the light of the refusal of the Bosnian authorities to issue him with travel documents since the first refusal on 11 September 2009, it is no longer satisfied.

I reject the submissions (see [14] and [71(e)]) based on non-compliance with the EU Return Agreement with Bosnia, including the time limits. The Bosnian authorities have not refused to consider the Claimant’s case because of any non-compliance with the agreement. They have indicated that if the evidence that they require is provided they will look at the Claimant’s case again. Moreover, the Returns Agreement regulates obligations between members of the European Union and Bosnia and Herzegovina but, like the Dublin II Regulation, EC 343/2003, does not create free-standing substantive rights in individuals: in relation to the Dublin II Regulation, see, for example, R (G) v Secretary of State [2005] EWCA Civ 54 at [25]; AA (Afghanistan) [2006] EWCA Civ 1550 at [13]; R (MK (Iran)) v Secretary of State [2010] EWCA Civ 115. at [42].

The next matter is the Claimant’s risk of offending. Are the defendant and I entitled to rely on the assessments by the Probation Service, or does the report of the independent forensic psychologist mean that I cannot be satisfied that he does pose a high risk of harm to the public? As I have stated (see [60]), it is for the court to determine whether the length of detention is reasonable, although, as Toulson LJ stated in A (Somalia) (see [60]) there may be incidental questions of fact which the court may recognise that the Secretary of State is better placed to decide than itself, and which it will no doubt take account of. In R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin) Sales J, in a passage approved by Richards LJ, [2010] EWCA Civ 1112 at [67], stated that where the relevant factors include matters of judgment on a topic which is primarily the province of the Secretary of State, the court will be slow to second-guess the Secretary of State’s judgment on that matter. This was stated in relation to the Secretary of State’s judgment about the availability of removal which depended in a significant way upon an assessment of how a foreign government would react.

Making a judgment about the risk of future offending is a task which courts regularly have to undertake when exercising their criminal jurisdiction. But, in that context despite this, the assessments of the Probation Service are treated with respect by the court. They are used throughout the criminal justice system and provide a uniform process by which courts and officials, such as those in the UK Border Agency, are furnished with information in a consistent way. In this case the court is being invited to reject that method of assessment on the basis of the evidence of Ms Davies, the independent forensic psychologist. I have, however, concluded that, on the facts of this case, the Probation Service’s assessment continues to have considerable weight. Even Ms Davies recognised that under pressure, including extreme financial pressure, the Claimant might violently re-offend. Taking account of the nature of his offence, an unprovoked attack with a knife on a man simply doing his job, his conduct during detention with aggressive behaviour to staff, and the number of adjudications, including two in November and December 2010, I have concluded that the Claimant does pose a high risk of offending.

I turn to the risk of absconding. It is true that this Claimant, unlike the Claimants in a number of the other cases relied on by the defendant, has a wife and five young children. The October 2010 detention report states that these family ties are insufficiently close because the family has failed to prevent the Claimant’s criminal behaviour in the past. The factors relied on by the defendant to justify her conclusion that he poses a risk of absconding are: his failure to observe immigration laws, the exhaustion of his appeals, and his character, conduct and associations. No detail is given about what associations the defendant has in mind.

The Claimant has been refused bail on five occasions between 17 June 2009 and 22 March 2010. On 24 July 2009 the Immigration Judge found he posed a risk of absconding. The approach of the Immigration Judges when refusing bail to the risk of absconding and committing further offences did not in my judgment fall into error, although at the hearing on 22 March 2010 there is no reference to the risk of absconding, only to the Claimant’s criminality, which is described as “vicious”.

It may well be that the risk of the Claimant absconding if released on bail is less than that assessed by the defendant, mainly because of his family ties. But his family ties cannot be seen in isolation and must be considered together with and set against his conduct and non-compliance while in detention, and his past failure to co-operate with the defendant, which suggest he would not adhere to conditions of bail. The family ties must also be set against the high risk of re-offending. In any event the risk of absconding is only one of the factors relevant in assessing the legality of the period of detention.

The question whether there is reason to believe there is a realistic prospect of the Bosnian authorities providing the Claimant with travel documents and admitting him to Bosnia lies at the heart of this case. On this issue I broadly accept Miss Candlin’s submissions. The Claimant’s lack of co-operation between April 2009 and January 2010 and the difficulties since means that he bears a considerable degree of responsibility for the time it is taking the Secretary of State to deal with the Bosnian authorities. I do not consider the fact that the defendant has decided not to prosecute the Claimant for his non-co-operation precludes her from relying on that non-cooperation in the present context.

The Claimant was not frank with the Immigration Officers who interviewed him. He now says (second statement, paragraph 6) that nearly everyone in the Roma community is known by a second name, be it an alias or a gypsy nickname, and that the defendant must be aware of this fact. He did, however, not provide the defendant with his aliases. In the case of one of those aliases, Djordjevic Ringo (see [32]), the Claimant himself has given as his place of birth a different country, Serbia, and not Bosnia. Again, it was only in about November 2010 that it was discovered that there was conflicting biodata on two forms and that the name Ali M emerged as an alias: see [27]. Similarly, it is only recently (see [32]) that the defendant has found that there are different father’s names on FM’s birth certificates. There is also inconsistency in the accounts given by the Claimant and his family to the experts instructed on their behalf: see [53]. The way that information has trickled out of the Claimant and those inconsistencies have undoubtedly contributed to the difficulties the Secretary of State faced and to her belief that he may well have further information which could be put to the Bosnian or Serbian authorities with a reasonable prospect of being accepted by them.

I have noted (see [57]) that detention “pending” removal or departure in Schedule 2 to the 1971 Act means no more than “until”. There is no need to show that removal or departure is “impending” (a word used at times by Mr de Mello and Mr Muman); that is, there is no need to show that removal will happen soon: see R (Khadir) [2006] 1 AC 207 at [32] and A (Somalia) [2007] EWCA Civ 804 at [35], [43] and [58]. There is also no need for a finite time by which or period within which removal can reasonably be expected to be effected. Richards LJ in MH’s case (at [65]) stated that “there can 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”, and that, while the extent of certainty or uncertainty will affect the balancing exercise, what is necessary is that “there must be a sufficient prospect of removal to warrant continual detention when account is taken of all other relevant factors”. However, he also stated ([68(v)]) that as the situation drags on, so certainty becomes a factor of considerable and increasing importance and a greater degree of certainty and proximity of removal will be required to justify continued detention.

The 22 month period of immigration detention in this case is considerably less than the 48 months held lawful in A (Somalia) and the 38 months held lawful in MH’s case. There is a difference between this case and A (Somalia), where a voluntary return by the Claimant in that case was possible throughout the relevant period. In the present case it is not possible for the Claimant to return voluntarily to Bosnia. Accordingly, although his non-co-operation increases the period of justifiable detention, it cannot be said here, as it can where there is no problem with the documents and voluntary repatriation is possible, that the problem is entirely of his own making. But MH’s case shows this is not conclusive. There, the general position was that voluntary returns to Somaliland were possible throughout the period and enforced removals for parts of it. However, the Somaliland authorities (see Richards LJ at [10] referring to Sales J at [38](ii)) applied “stringent standards” as to the information required in order for them to issue travel documents. The Claimant’s lack of co-operation until after proceedings were issued and the fact that, even after then, the information he provided was inadequate to be passed to the Somaliland authorities, meant he did not have a travel document. Even in those circumstances, all but the last two months of his detention were held to be lawful.

At the date of the hearing there were still two outstanding enquiries with the Bosnian and Serbian authorities. The Claimant’s fingerprints were sent to the FCO in Sarajevo on 1 December 2010 and the outcome of the checks based on them was not known. The FCO in Belgrade stated on 13 December that it was waiting for a local authority birth register check, which would take about a month. In MH’s case what were described as “stringent standards” by the Somaliland authorities “in assessing whether sufficient bio-data were provided” and the need for “a substantial degree of co-operation in provision of such bio-data …. from the individual concerned” did not preclude there being a realistic prospect of removal. There is a suggestion (see [27]) that further co-operation by MM might lead to further information from the Claimant’s mother-in-law. Although MM’s evidence is that she has not seen her mother since 2009, she also states that she is in Manchester and could be contacted in an emergency so there is also a source of co-operation which has not been utilised to date.

Taking all these factors into account, and setting aside, as I have at this stage Mr Muman’s submissions based on section 55 of the 2009 Act and the British citizenship of FM and the likely British citizenship of FRM, I have concluded that, at the date of the January hearing, there was a sufficiently realistic possibility of the outstanding enquiries yielding information that would be accepted by the Bosnian authorities. The question is whether there still is such a prospect. It was said on 13 December that the local authority birth register check would take about a month and the fingerprint check was requested earlier. If those enquiries have not yielded information identifying the Claimant as either a Bosnian or a Serbian, or if there has been no response to them within a reasonable period, detention would become unlawful on the receipt of the responses or the end of that period. It was not suggested on behalf of the defendant that there were any other pending or contemplated enquiries that might provide sufficient information to secure the Claimant’s acceptance by the Bosnian (or indeed the Serbian) authorities. It is now almost the end of February, over a month after it was said that the results of the local authority birth register should be available and over two and a half months after the submission of the Claimant’s fingerprints and, absent a very good explanation, the defendant appears to have had a reasonable period to obtain the responses. But for my conclusions on the section 55 points, I would have heard submissions as to the current position when handing down this judgment.

I turn to the submissions based on section 55 of the 2009 Act, the British citizenship of FM, and the likely British citizenship of FRM. First, it is clear that the defendant, through the relevant officials at the UK Border Agency, has been in close contact with the OCC and has sought and followed the advice of that Office. The detention reviews show that this material was before the Officers considering whether detention should be maintained.

There are differences between the present case and the facts of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. In that case the children’s father was a British citizen. That enabled Baroness Hale to state (at [31]) that the children were British “not just through the accident of being born here, but by descent from a British parent”. In the present case neither parent is a British citizen. Moreover, they are both in this country without status. FM’s relationship with his father has also been interrupted since he was four and a half as a result of the Claimant’s period of imprisonment and subsequent detention. But in the context of “having regard to” FM’s best interests, I do not consider these to be determinative differences. In ZH (Tanzania) Lord Hope (at [42]) described the endorsement by the Court of Appeal of the view that the question whether it was reasonable to expect the children to go with their mother to Tanzania was to be judged in the light of the fact that both the children were conceived in the knowledge that the mother’s immigration status was precarious as an error of a fundamental kind. FM has been given British citizenship because, as well as being born here, he is over 10 years old and has not left the United Kingdom since birth. Like the children in ZH (Tanzania) FM has lived here for all his life. He is (see Lady Hale’s observation set out at [69] above) caught up in a dilemma which is of his parents and not of his own making.

The defendant has considered the position of FM and his interests. As was held in R (TS)’s case and by the Supreme Court in ZA (Tanzania) and emphasised by Miss Candlin, while those interests are a primary consideration they are not the only consideration. I have, however, concluded that, in the way those interests were considered, the defendant and the OCC fell into error.

The initial request by the Criminal Casework Directorate for the OCC’s advice ([34]) simply argued that FM could return with the family to Bosnia and return to the UK as a British citizen when he became an adult and independent. The OCC’s response in July was that the grant of citizenship did not impact on the family because they could be removed as a family unit. It is true that it advised a reference to the Dudley Social Services on the basis that FM might wish to remain in the UK under the Council’s care if the family was deported. But the email dated 14 October (see [38]) does not refer to the best interests of FM, only to a concern that he was under emotional pressure to use his citizenship to help the family resist deportation.

The email dated 8 December (see [43]) reiterated the view of the OCC that, as the Claimant’s wife and children can join him, “there is no reason to object to his deportation on child welfare grounds”. The email dated 13 December stated that the registration of FRM as a British citizen did not change its view of the proposed deportation.

The approach taken did not address the best interests of FM, and while recommending references to the Social Services, did not follow up or press for the specialist reports that Dudley Social Services “strongly advised” be prepared in its 30 September 2010 initial assessment record. It is difficult to see that this constitutes compliance with the requirements of section 55 of the 2009 Act even in the light of the understanding of the law before the Supreme Court’s decision in ZH (Tanzania).

In relation to the specific question of the effect of FM being granted British citizenship and the prospect of FRM being granted it on the same basis the approach taken by the OCC and the UK Border Agency may well have reflected the understanding of the law before the decision of the Supreme Court. Before that decision the importance that is to be attached to the factor of citizenship in the overall assessment of what is in the best interests of a child was not as appreciated: see [69]. The consequence was that in many cases the United Kingdom authorities considered it reasonable to expect children who were British citizens to go with their non-British parent when the parent was removed and to return when adult. Sometimes this was the result of concentration on the lack of status of one or both parents.

That approach is now seen to be erroneous. The effect of a decision such as that in ZA (Tanzania) is often characterised as changing the law, and, in popular discourse that may be so. But, strictly speaking, as a result of the common law principle that judicial decision-making is declaratory, it is in fact not the law that has changed but our understanding of what the law is. In the context of the rights protected by the European Convention on Human Rights via the Human Rights Act 1998 there appears to be some tension between the common law’s declaratory principle of judicial decision-making and the treatment of the Convention as a “living instrument”. The “living instrument” approach has led to the enlargement by the Strasbourg court of the substantive content and meaning of Convention rights and adjustments to what is considered “necessary in a democratic society”. But it is not necessary to decide whether that particular tension exists or how, if it does, it is to be resolved. In the present circumstances, the defendant’s approach to the effect of the grant of British citizenship to FM may have been in accordance with the general understanding of what the law was at the time but that does not mean that it was lawful.

It was submitted by Miss Candlin that since the present case is about the legality of SM’s detention, the legality of deporting his wife and children and in practice requiring FM to return voluntarily with his family is not before the court. I, however, accept Mr Muman’s submission, advanced well before the decision of the Supreme Court, that the flawed assessment of the children’s best interests and its susceptibility to a challenge based on Article 8(2) of the European Convention does have an impact on the question whether there is a realistic prospect of the Claimant’s deportation within a reasonable time. This is because the decision to deport him and his family has to be re-visited giving proper consideration to the positive duty under section 55 and in the light of Article 8(2). If the decision to deport the Claimant cannot be maintained, neither can the decision to keep him in detention.

For these reasons, I have concluded that on 22 October 2010, when (see [40]) an officer of the UK Border Agency’s Criminal Casework Directorate sought authority to split the family for the purposes of detention on the basis of the flawed assessments, detention became unlawful. Accordingly, the Claimant should be released on bail subject to the conditions agreed at the hearing. Those conditions are that: he be required to reside at the address where his wife and children live, that he report as directed on Mondays, Wednesdays and Fridays, that he be subject to a curfew between 7:00pm and 7:00am, and that he be subject to electronic monitoring. The parties should endeavour to agree the details before judgment is handed down.