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

The Claimant, H M (“the Claimant”), applies for judicial review of a decision made on 8 November 2007, and maintained since then, to detain him. That decision has not been reconsidered by the Defendant, the Secretary of State for the Home Department (“the Secretary of State”), but the Claimant seems to have been granted bail on 25 August 2010 by the First-tier Tribunal (“the FTT”). It also seems that he has been at liberty at all times since that date.

Permission to apply for judicial review was refused on the papers by Lord Carlisle QC, sitting as a Deputy High Court Judge, on 25 August 2010. Permission to apply was granted, after an oral hearing, by Ingrid Simler QC, sitting as a Deputy High Court Judge, on 3 December 2010. She limited the grant of permission to what she called “the third Hardial Singh ground”. In other words, the issue is whether the Claimant’s detention was, or became, unlawful because it was, or became, or should have been, obvious to the Secretary of State that his deportation could not be effected within a reasonable period. That is a question for me to determine on the evidence.

If the Claimant’s detention for any period was unlawful, the Secretary of State has committed the tort of false imprisonment. The Claimant is only entitled to more than nominal damages, however, if I am satisfied on the evidence that he would not have been detained if the Secretary of State had acted lawfully. So the Claimant’s challenge to his detention potentially raises two sets of issues:

was he detained unlawfully, and if so, for what period or periods; and, if so,

would and could the Secretary of State, acting lawfully, have detained him, in any event, for any of that period, or for those periods.

The Secretary of State has not put in any evidence in this case. The fact of detention is not in dispute, so it is for the Secretary of State to show that detention was lawful throughout. The absence of any direct evidence on some of the questions which are relevant to lawfulness and to damages means that I have had to draw inferences based on the documents, which are unexplained by any other evidence. That lack of evidence also means that where I have had any doubt about the meaning or effect of a document, I have not been able to resolve that doubt in favour of the Secretary of State.

From at least 23 September 2003 onwards, the Secretary of State’s policy was not to remove deportees to Southern Iraq, because of fears for the safety of their escorts. In a decision given on 30 November 2007, Mitting J said that “...there is no evidence of any kind as to when [the policy] might change” (R (Bashir) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin), at paragraph 8). In MI and AO (Iraq) v Secretary of State for the Home Department[2010] EWHC (Admin) 764 (at paragraphs 55-59), Burnett J refers to the material about forced returns to Iraq which he had been shown, including that decision of Mitting J.

There was a marked, though relatively short-lived, improvement in security in Central and Southern Iraq in the second half of 2007, which continued into early 2008, and which Burnett J mentions at paragraph 57 of his judgment in MI. But no-one was removed to Central and Southern Iraq in 2007 or 2008. Burnett J noted that any such improvement would have to be sustained before arrangements for enforced removals could be made, and expressed his concern that there was no evidence before him from the Secretary of State explaining what view the Secretary of State held in 2008 about when, realistically, removals might be possible. The position in this case is the same.

Burnett J held that it should have been apparent to the Secretary of State from 1 July 2008 that MI’s removal was not going to be possible within the overall period of 16 months which Burnett J had identified as a reasonable period of detention for MI. In AO’s case, because AO had failed to co-operate in providing his bio-data, Burnett J held that an overall period of 18 months’ detention would have been reasonable. He held that it should have been apparent to the Secretary of State by January 2008 that AO’s removal was not going to be possible within a reasonable period. Neither was a case in which there was a fear of re-offending (judgment, paragraph 75).

In January 2005, a Memorandum of Understanding (“MOU”) was signed by the United Kingdom and Iraqi Governments. Under the MOU, charter flights carrying involuntary deportees from the United Kingdom to that part of Iraq which was controlled by the Kurdish Regional Government (“the KRG”) began. These have continued. The KRG, however, would only accept deportees who had links with that region. The Claimant does not have any links with that region. No Iraqi Kurds, such as the Claimant, who have no links with that region, have been removed there. The MOU is mentioned by Langstaff J in R (A (Iraq)) v Secretary of State for the Home Department [2010] EWHC 625 (Admin), at paragraph 36. On the information I have seen in this case, the only other relevant result of MOU was one flight to Baghdad in October 2009, to which I refer further in paragraph 42, below.

For part of the relevant period, the Secretary of State had an “active war zones” policy. This was withdrawn on 14 January 2008. It was set out in the Secretary of State’s Operational Enforcement Manual. It was that “enforcement action” should not be taken against nationals from countries which were “currently active war zones”.

The hearing in HH(Criminal record; deportation; “war zone”) Iraq[2008] UKAIT 00051 (“HH”) took place between 28 January and 1 February 2008. At the hearing, the Secretary of State had conceded that Iraq was then in a situation of “internal armed conflict” (determination, paragraph 11). The Asylum and Immigration Tribunal (“the AIT”) held that, that being so, it was not open to the Secretary of State to argue that Iraq was not also, for the purpose of this policy, an “active war zone”. The AIT also held that a notice of an intention to make a deportation order was “enforcement action” for the purpose of the policy (determination, paragraph 19). The policy had applied to the appellant in that case, and the decision to deport him (on 30 January 2007) was unlawful, because it had been taken in breach of that policy. At paragraph 25 of their determination, the AIT held that the first time a lawful decision to deport the appellant could have been taken was the date when the policy was withdrawn, 14 January 2008. The relevant decision had been taken a year earlier, and was an unlawful exercise of the discretion to deport. The decision would have to be taken afresh, on the basis of the current position.

The Court of Appeal dismissed the appeal of the Secretary of State ([2009] EWCA Civ 727). The Secretary of State did not challenge the AIT’s conclusion that the concession about internal armed conflict meant that Iraq was “an active war zone” for the purpose of the policy.

In MI and AO (Iraq), two Iraqi nationals challenged the lawfulness of their detention pending deportation. They were ethnic Kurds, but not from the area controlled by the KRG (judgment, paragraph 55). They argued that it was unlawful for the Secretary of State to take enforcement action against them, because in doing so, he had failed to have regard to a relevant consideration, that is, the active war zones policy. This, in turn, meant that their detention was unlawful.

The first step in the reasoning underlying their claims was that when, in each case, the Secretary of State had decided to make a deportation order, Iraq had been an active war zone. Burnett J noted the decision of the AIT in HH, and that the Secretary of State had not appealed the conclusion of the AIT that Iraq had been, at the material time, an active war zone (judgment paragraph 18). After reviewing in-country material and the Secretary of State’s Operational Guidance note, Burnett J decided that Iraq was not, at the material time, an ‘active war zone’, with the result that the policy had not applied to the claimants (judgment, paragraphs 21-24). He therefore rejected the challenge (based on that policy) to the decisions to make deportation orders (and thus to detention) (judgment, paragraph 25). He also held that as the decisions to make deportation orders had been appealed to the AIT, and those appeals dismissed, it was not open to the claimants to mount a collateral attack, by judicial review, on those decisions, as a way of undermining the lawfulness of their detention (judgment, paragraphs 29-33). I have not been invited to depart from Burnett J’s approach, and do not do so.

AO appealed to the Court of Appeal. The Court of Appeal dismissed his appeal [2010] EWCA Civ 1637. I am grateful to Mr Slatter for drawing my attention to this decision, which was not in any of the bundles of authorities for the hearing. The Court decided, among other things, that even though AO was a litigant in person at his appeal to the AIT, and the Home Office Presenting Officer (“HOPO”) had not drawn the AIT’s attention to the active war zones policy, that was not an exceptional reason for allowing an application for judicial review of the decision to make the deportation order.

In R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671 (“Lumba”), the Supreme Court considered the effect on the lawfulness of the appellants’ detention under immigration powers of a policy known as “Cullen 1” and “Cullen 2”. In short, this was a blanket, unpublished, policy of detaining all foreign national prisoners (“FNPs”) who had committed certain types of offences, irrespective of their individual circumstances. It conflicted with the Secretary of State’s published policy, which contained a presumption in favour of release. The policy was in force between April 2006 and, apparently, 9 September 2008 (see paragraphs 5-6 of Lumba). The Supreme Court held that detention pursuant to that policy was unlawful.

The Claimant is an Iraqi citizen. He was born on 23 September 1980 in Kuwait. His family are Kurdish and come from Baghdad. He claims to have entered the United Kingdom on 16 February 1997. On that date, he claimed asylum, as a dependant to his father’s claim. On 4 April 2000, the Claimant was recognised as a refugee, and granted indefinite leave to remain in the United Kingdom. Between 10 August 1999 and 28 March 2006, the Claimant was convicted of several criminal offences, including using racially abusive and insulting words to cause fear or provocation of violence, theft, possession of a class B controlled drug, and failing to surrender to custody (twice).

On 28 March 2006, he was convicted of robbery at Middlesex Crown Court. On 21 April 2006, he was sentenced to 4 years’ imprisonment. In his sentencing remarks, the Judge said:

The Claimant did not appeal against his conviction or sentence.

While he was in prison, the Claimant broke a number of prison rules. He had adjudications for failing to follow lawful orders, and (several times) for possession of cannabis.

On 30 May 2007, the Secretary of State wrote to the Claimant seeking reasons why he should not be deported from the United Kingdom following his conviction for robbery, and inviting the Claimant to make representations why the Secretary of State should not certify him as constituting a danger to the community of the United Kingdom, such that he would be excluded from the protection of the Geneva Convention. The Claimant did not respond to either invitation.

The Secretary of State served the Claimant with a liability to deportation letter on 7 June 2007, decided to make a deportation order in respect of the Claimant on 8 November 2007, and served the Claimant with notice of the latter decision on 15 November 2007. The Claimant’s custodial term came to an end, and he was immediately re-detained by the Secretary of State pending deportation, on 11 November 2007.

The Claimant appealed against the decision to make a deportation order on 15 November 2007. On or about 15 January 2008, the AIT asked the Claimant and the Secretary of State to make written submissions on whether the Claimant could be returned to Iraq. Both made submissions. They agreed that the Claimant did not meet the criteria for enforced returns to Iraq. The AIT concluded on 14 February 2008 (at paragraph 44 of its determination) that:

The AIT also said, at paragraph 41 of the determination, “We have no means of knowing when or how this appellant will be removed to Iraq”. The Claimant’s appeal was dismissed by the AIT on 18 February 2008. The Claimant applied for a reconsideration. On 7 March 2008 the AIT declined to order reconsideration. Part of the reasoning of Senior Immigration Judge Jarvis was that “as to Article 3, it was open to the Tribunal to find that on the evidence the Appellant had not shown that the high threshold had been met”. The Claimant’s appeal rights were exhausted on 20 March 2008.

The Secretary of State signed a deportation order against the Claimant on 12 May 2008. By a letter dated 23 June 2008, the Claimant made representations to the Secretary of State seeking the revocation of his deportation order, and the grant of Humanitarian Protection. The representations relied mostly on in-country material about the lack of security in Iraq. The Claimant asserted (at paragraph 14 of the representations) that “the risk to which the appellant would be exposed would be significantly greater than and distinguishable from that to which Baghdad residents are exposed because of his particular predicament as a returnee”.

In a bail summary dated 25 July 2008, the HOPO noted that the Claimant “does not meet the criteria for non-voluntary removals to Iraq, however, that policy is subject to change”. On 28 July 2008, the Claimant was refused bail by the AIT.

On 13 August 2008, the Secretary of State notified the Claimant that his case would be reconsidered in light of the AIT's determination in HH, and invited further representations from the Claimant.

On 21 August 2008, the Claimant made further representations to the Secretary of State seeking revocation of the deportation order. The reasoning in HH was relied on.

The representations included a witness statement from the Claimant dated 21 August 2008. In that statement, he said (at paragraph 10) that: “I will be targeted either because of my ethnicity or because I came from abroad and was convicted with a criminal offence in the UK. My criminal conviction can be detected by the Iraq Authorities and I would be punished again in Iraq. Apart from criminal conviction I believe that I will be killed if I were to be returned to Iraq because of the current conflict.”

On 12 September 2008, an Immigration Officer from the Operations Team visited the Claimant. His purpose, as it was repeatedly described in successive monthly detention reviews in this case, was “to assertively recommend the merits” of the Facilitated Return Scheme (“the FRS”). The FRS is designed to help a deportee to return home and to settle back into life is his home country. The Claimant’s reaction on 12 September 2008 was to “repeat” that he was not interested in the enhanced FRS as his family were here in the United Kingdom, and he had “no reason or desire whatsoever” to go back to Iraq. That response is also repeatedly referred to in subsequent detention reviews. I conclude that his first refusal to return voluntarily was on 5 August 2008 (see the page described as “11 of 11” of the bail summary dated 12 August 2009).

The Claimant was reminded, in most, if not all, of the monthly progress reports which, I understand, were served on him throughout his detention, that he was eligible to apply for the FRS. Many, but not all, of these reports all described one of the benefits of the FRS as “Less time in detention”. These reports also refer to the amounts which were, at various stages during his detention, offered to him. They ranged from £46 to £3000.

In the light of the AIT’s decision in HH, the Secretary of State revoked the deportation order on 8 January 2009. The separate decision to make a deportation order was withdrawn on 26 January 2009. The statement of reasons annexed to a later consent order made by the Court of Appeal (on 10 October 2011) records, at paragraph 2, that the decision of 8 November 2008 was withdrawn “as a result of” the decision in HH.

On 26 January 2009, the Secretary of State reconsidered the Claimant’s case and decided, for a second time, that it was appropriate to deport him. The Secretary of State referred at length to the AIT’s decision in KH (Iraq) [UKAIT] 00023 and concluded that:

On the same day, the Secretary of State retook the decision to detain the Claimant under her immigration powers. The Secretary of State concluded that detention would “enable us to effect your removal from the United Kingdom”. On 26 January 2009 the Secretary of State made a fresh decision to make a deportation order against the Claimant. On 30 January 2009, the Claimant lodged a notice of appeal to the AIT against that decision.

On 5 May 2009, the AIT dismissed the appeal. Between 5 February 2009 and 27 May 2009, the Secretary of State told the Claimant on four occasions (as recorded in monthly progress reports) that he was aware of the Claimant’s previous lack of interest in the FRS, and that he would now receive £3,000 if he left the United Kingdom. The Secretary of State warned that this amount would be reduced if the Claimant continued to refuse to return voluntarily to Iraq. It was reduced to £46 in the report dated 27 May 2009.

The AIT dismissed the Claimant’s appeal by a determination dated 5 May 2009. Its findings on return are at paragraphs 33 to 51 of that determination. The AIT found, in short, that none of the objective material adduced supported the contention that the Claimant was at an individual risk of harm if returned to Iraq, and that, overall, “substantial grounds have not been shown for believing that the appellant, if returned to Iraq, would face a real risk of suffering harm”.

The detention review signed by a “director” on 1 June 2009 recorded that the Claimant had “been shown to be disruptive while in detention by inciting fellow detainees and has been relocated to Rule 40 before”. This passage in this review was referred to in Mr Auburn’s skeleton argument. It is perhaps incongruous that the third page of this review refers twice to a “Ms Shedadeh”, rather than to the Claimant. The review signed by a director on 5 May 2010 explains that on 15 October 2009 and 18 November 2009, the Claimant was “relocated to rule 40” for concealing drugs received on a visit and for fighting with an inmate.

On 16 July 2009, the AIT ordered a reconsideration of its determination of 5 May 2009. On 13 August 2009, the AIT refused bail. The Immigration Judge said that the Claimant was likely to re-offend if released and that there were substantial grounds for believing that he would also abscond. The bail summary dated 12 August 2009 states that “Enforced removals to Iraq are currently limited to specific ops only. The applicant has refused to agree to voluntarily return to Iraq despite the fact that he has no legal basis to remain....and is required to leave. We submit that the detention of the applicant is reasonable given his refusal on 5 August 2008 and 12 September 2008 to voluntarily leave...”.

On 9 September 2009, the Claimant wrote to the Secretary of State contending that the deportation order dated 29 January 2009 was unlawful because the Secretary of State had failed to consult the UNHCR before certifying the cessation of the Claimant’s refugee status, contrary to her own policy.

On 25 September 2009, there was a reconsideration hearing of the Claimant’s appeal against deportation. The AIT found a material error of law in its determination of 5 May 2009. According to the Claimant, the Secretary of State’s representative accepted that this was the position. A second-stage reconsideration hearing took place on 4 January 2010. That was adjourned part-heard. It was then listed for a further hearing, on 9 April 2010.

On 12 October 2009, the Claimant was interviewed at Colnbrook Immigration Removal Centre and again reminded of the FRS. He signed a disclaimer saying that he was eager to return voluntarily with his cousin. He had at that stage been offered £500. However, on 23 October 2009, the Claimant withdrew his agreement to return under the FRS.

By letter dated 15 October 2009, the Secretary of State accepted that she had acted contrary to her own policy in failing to seek the views of the UNHCR before withdrawing the Claimant’s refugee status, and agreed to reconsider that decision. The Claimant made representations, which again emphasised the danger that he would face if he were returned to Iraq. In particular, the representations noted the additional dangers that the Claimant would face as an ethnic Kurd in Baghdad.

I have already mentioned the flight to Baghdad on 15 October 2009. On that date, the Secretary of State tried to return 44 deportees to Baghdad by ’plane. Shortly after its arrival, the ’plane took off again, with 34 of those deportees once more aboard. The circumstances are explained in more detail by Langstaff J in A (Iraq) (see paragraph 8, above). At the time of Langstaff J’s decision this had been the only such flight in a period of nearly five years.

For present purposes, the salient points are that the process of arranging that flight was long and slow (A (Iraq), paragraph 36); no ethnic Kurds were, in the event, accepted by the Iraqi authorities (ibid, paragraph 47); and Langstaff J’s findings (in February 2010) that a further flight to Baghdad with an Iraqi FNP was not likely to occur before the end of that calendar year at the very earliest; and that the length of further detention of the claimant in that case would, on that basis, be “uncertain and close to arbitrary” (ibid, paragraph 62). The claimant in that case had already been detained for 21 months, and Langstaff J, who was not asked to consider the lawfulness of that earlier period of detention, held that, on the facts, the claimant’s further detention would be unlawful (ibid, paragraph 66).

By letters dated 26 October 2009 and 2 December 2009 the UNHCR told the Secretary of State that its recommendation was that the Claimant’s refugee status ought to not to be revoked, and noted that “the situation in Iraq does not yet constitute fundamental changes sufficient to allow a general application of the cessation clauses…of the 1951 Convention”.

The Claimant’s representatives sent a letter before claim to the Secretary of State on 9 December 2009 and the Claimant issued the present judicial review claim on 28 January 2010. It was stayed in January 2010 pending the determination of other cases raising the same issues. I was told that those cases were R (MI and AO (Iraq)), which I have already mentioned. Amended grounds of challenge were served on the Secretary of State under cover of a letter dated 6 May 2010.

On 29 January 2010, a HOPO, Susan Leyshon, asked for a final letter to be sent to the Claimant’s solicitors saying that the Secretary of State had consulted the UNHCR, but maintained the original decision of 26 January 2009 to cease his refugee status. On 5 March 2010, the Secretary of State sent a letter to the Claimant’s solicitors to that effect.

On 4 January 2010 and 31 March 2010, the FTT heard the second-stage reconsideration of the Claimant’s appeal against the deportation order. By a determination dated 24 June 2010, IJ Pullig dismissed the Claimant’s appeal. He found that Iraq was a dangerous place where the Claimant would be at risk of serious harm (see, e.g. paragraphs152 and 169; but that his characteristics would not cause him to suffer more harm than the general population of Iraq (see e.g. paragraph155)).

As I have already mentioned, the Claimant appears to have been granted bail on 25 August 2010.

As I have also already mentioned, permission to apply for judicial review was refused on the papers on 25 August 2010, but granted, after an oral renewal on 3 December 2010, on grounds 2b), c), and d) of the Claimant’s amended grounds only.

On 24 September 2010, the Claimant appealed against the determination of IJ Pullig. The Claimant’s applications for permission to appeal to the Upper Tribunal and to the Court of Appeal were refused on the papers. But on 9 March 2011, after an oral hearing, the Court of Appeal granted permission to appeal against the Upper Tribunal’s decision, limited to one ground. With the consent of the Secretary of State, the Court of Appeal then overturned that decision on 10 October 2011, on the grounds that the Upper Tribunal ought to have found that there would have been a breach of the Claimant’s Article 3 rights if the Claimant were refouled to Iraq. The Court of Appeal’s decision was made over a year after the Claimant was granted bail.

The statement of reasons annexed to the consent order records (paragraph 5) that the Secretary of State agreed with the Claimant that there material errors of law in the determination IJ Pullig. The Secretary of State accepted that “in order to avoid a breach of article 3, on the tribunal’s findings, the appellant cannot be refouled”.

As I have said, the claimant’s detention was reviewed most months, and he was served with monthly progress reviews. I do not consider that it is necessary for me to refer to all of these in this judgment.

The Claimant’s detention was initially authorised by a minute dated 30 October 2007. Under the heading “likelihood of removal within a reasonable timescale (outline barriers to removal, including availability of travel documents, and likely time to resolve these”) (“the removal heading”), the decision-maker said that the Claimant was from Baghdad; “There is an opportunity that [he] might chose to return to Iraq voluntarily. Furthermore, the policy for involuntary removals to Iraq is constantly under review”. I infer that the decision-maker recognised that Claimant’s removal to Iraq was not then feasible; for had it been, that would no doubt have been stated.

The review dated 19 November 2007 recorded that the Claimant had been notified of a decision to make deportation order on 17 May 2006, but that this decision had failed to recognise his refugee status. A letter was being drafted that would give reasons for his deportation, and would deal with the cessation of his refugee status. Under the removal heading the decision-maker referred only to an appeal which was lodged on 15 November 2007. The “proposal” referred to his very serious conviction, his previous record, and said that “detention will enable us to effect his removal…”.

The review dated 19 December 2007, under the removal heading, referred to the appeal and to the fact that a completed bio data form and photographs were on file. A later review (dated 4 July 2008) explains that these materials would enable “an EU letter” to be created to facilitate removal. An EU letter is a travel document. The proposal mentioned two reasons for maintaining detention: the Claimant’s “determination to breach the law”, and his failure to answer bail in the past. It then stated, “Detention has been considered according to the Cullen criteria”. It is clear to me, and Mr Auburn has not tried to persuade me otherwise, that this is a reference to the unlawful ‘blanket’ policy to detain FNPs which I have described above.

The review dated 7 January 2008 referred to a hearing date in the Claimant’s appeal (4 January 2008). Under the removal heading, it observed that the Claimant (as Kurd from Baghdad) did not meet the “current criteria” for enforced removal to Iraq, “however”, it continued, “the policy is subject to change”. A similar statement is made in the bail summary dated 25 July 2008, which I have already quoted. The “proposal” gave the same two reasons for detention as were given as in the previous review. The review then said, “…detention has been considered under the current criteria”.

I infer, in the absence on any evidence suggesting otherwise, that (given the similarity of this proposal to the previous one) the “current” criteria are the Cullen criteria. I accept that “current criteria” is a phrase used in reviews after the Cullen policy ceased, and that, in that context, plainly, that phrase cannot mean “the Cullen criteria”. But in the absence of any evidence to the contrary, it is, in my judgment, more likely than not that during the period when the Cullen policy was in force, that phrase meant “the Cullen criteria”. I also infer, that when, during the currency of the Cullen policy, “the current policy” is mentioned (as it is in reviews dated 6 May and 4 July 2008), that that, too, is a reference to Cullen. I also infer that it is more likely than not that the decisions made before the first express reference to “Cullen” were also made in accordance with that policy.

There does not seem to have been a review in February 2008, but no submissions have been made about the consequences, if any, of such an omission, if omission it was.

The review dated 12 March 2008 recorded, under the removal heading, that the Claimant’s appeal had been dismissed on 18 February 2008, and that no decision had yet been made on an application for reconsideration. It went on to say that the Claimant had not exhausted his rights of appeal, that he had not indicated that he would return to Iraq voluntarily, and that he did not meet the criteria for enforced removals. There is a similarly worded comment under the removal heading in the review dated 6 May 2008.

The proposal gave three reasons for continuing detention; evidence of a risk of absconding in the light of the deportation decision, a demonstrated determination to break the law; and the Claimant’s failure to answer bail in the past. It continued, “This case has been considered under the current criteria. [The Claimant] should not be considered for release due to his conviction for robbery.” Again, I infer that this is a reference to the Cullen criteria. This inference is supported by the wider context of other reviews and by the narrower context provided by the next sentence of the proposal which I have just quoted.

Subsequent detention reviews refer to the likelihood of absconding, the Claimant’s record, and the seriousness of the index offence. I accept that these were significant factors in the decisions to detain, and that, on the facts of this case, they would justify a longer period of detention than would be reasonable in the case of a FNP whose record was less serious.

The reviews accurately summarise such obstacles to removal as outstanding representations, appeals and reconsiderations by the Secretary of State. But they do not focus to any great extent on likely practicalities of removal within a reasonable time, although they do refer frequently to the possibility of voluntary return. An example of this approach is the review signed by a director on 9 January 2009. Somewhat unusually, a comment on the April 2009 review dated 3 April 2009 reveals that “....removal to Southern Iraq is currently not possible but the situation is under review”.

The detention review which was signed by a director on 1 June 2009 stated, under “Progress since last review” (“the progress heading”), that the Claimant’s appeal rights were exhausted on 15 May 2009, that the “country situation on returns to Iraq remains the same, however he remains in a position to leave the UK voluntarily”. Under the removal heading, it says, “He is now ARE [appeal rights exhausted] and removal is considered to be within a reasonable timescale”. These two passages, under those two headings, are repeated in the review signed by a director on 2 July 2009. The director CCD comments in that review, “It is open to [the Claimant] to comply with the deportation order and he has chosen not to do so. We must now persist in putting to him the option of going voluntarily, including by offering again the FRS”.

This echoes a similar comment made by the SEO who signed the May 2008 review on 13 May 2008. The SEO also noted, “We could arrange his flight very quickly, and at public expense, if he chose to comply”. A link between prospects of removal and the Claimant’s refusal to return voluntarily is also articulated in the review dated 4 July 2008. The Claimant’s “removal is achievable within a reasonable timeframe should he chose to comply with the order.” A similar point is made in the reviews dated 9 January and 5 May 2009. In the reviews dated 27 May 2009, 22 July 2009 and 19 August 2009, “The country situation on removals to Iraq” is said to remain the same, but “he remains in a position to leave the UK voluntarily”. A comment by the deputy director CCD, on the review dated 15 September 2009, makes a similar point: the Claimant “could have chosen at any time to shorten his period of detention by complying with the Deportation Order. However he is determined to thwart the deportation process...”.

The review signed by a director on 29 July 2009 repeats under the progress heading that the situation in Iraq remains the same, but that the Claimant can leave voluntarily. It does not say, under the removal heading, that removal is likely within a reasonable time. The director CCD comments that the Claimant “can choose to shorten his period in detention at any time by complying with the documentation process”. The same point is made in a comment dated 20 August on the August 2009 review. These remarks are curious, as no other references to the absence of documents as an impediment to removal have been drawn to my attention. Indeed the entries I have referred to above, at paragraph 55, above, suggest, on the contrary, that there was no such difficulty in this case.

The review signed by a director on 31 March 2010 says, “We are engaging with internal stakeholders for advice on enforcing his removal, and we are actively progressing the case. His removal remains a realistic prospect, within a reasonable timescale, and we continue to offer participation in the FRS scheme”. In the review signed by a director on 5 May 2010, the Deputy Director repeats (4 May) that “Removal remains a realistic prospect within a reasonable timescale.” A further comment from the same officer (5 May) states that “I.... am aware that UKBA are currently working with FCG on returns”.

Section 5(1) of the Immigration Act 1971 (“the 1971 Act”) gives the Secretary of State power to make a deportation order against a person who is liable to deportation, “that is to say, an order requiring him to leave and prohibiting him from entering the United Kingdom....”. Section 5(5) enacts Schedule 3, “with respect to the removal from the United Kingdom of persons against whom deportation orders are in force, and with respect to the detention or control of persons in connection with deportation.” Where a deportation order is in force against a person, paragraph 1 of Schedule 3 gives the Secretary of State power to give directions for the removal of that person from the United Kingdom.

Paragraph 2(1) of Schedule 3 to the 1971 Act applies to cases where a recommendation for deportation made by a court is in force in respect of any person. Neither side has suggested that any such recommendation was made in this case, and I assume, therefore, that paragraph 2(1) is not in issue.

The rest of paragraph 2 provides:

Paragraph 22 of Schedule 3 authorises the release on bail of a person liable to detention. Bail can only be granted by a chief immigration officer or by the FTT. Paragraphs 23-25 make consequential provisions about such bail.

The principles limiting these powers of detention are known as the “Hardial Singh” principles. They were first articulated in R v Governor of Durham Prison ex p Hardial Singh[1984] 1 WLR 704 by Woolf J (as he then was). They were restated by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2002] INLR 196, at paragraph 46. In Lumba the majority of the Supreme Court accepted Dyson LJ’s restatement of these principles. His exposition (at paragraph 22 of the decision) was as follows:

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

The deportee can only be detained for a period that is reasonable in all the circumstances.

If before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to deport the detainee within a reasonable period, he should not seek to exercise the power of detention.

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

Dyson LJ continued:

In Lumba Lord Dyson SCJ said, at paragraph 115, that the application of the Hardial Singh principles is a “fact-specific exercise”, which should not be done “rigidly or mechanically”.

The next issue how the court should decide whether a claimant is entitled to more than nominal damages. Mr Auburn relied on OM v Secretary of State for the Home Department [2011] EWCA Civ 909. Richards LJ, with whom Ward and Hughes LLJ agreed, held (judgment, paragraph 23), that normal compensatory principles applied, citing Lord Hope, at paragraph 56 of R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1209. It is for the claimant to prove his loss on the balance of probabilities. Richards LJ said

He continued,

A similar approach to this issue was adopted at by the Deputy High Court Judge in R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin), at paragraphs 76-92 and 218-230.

In I (at paragraph 48), Dyson LJ listed some of the factors that the Court will take into account when considering the reasonableness of a period of detention. He said:

Mr Auburn submits that the Secretary of State must be allowed a reasonable period to make the necessary arrangements for removing a deportee. He relies on the decision of Burnett J in MI and AO at paragraph 52.

He draws attention to this passage in paragraph 52 of Burnett J’s judgment:

Mr Auburn also submits that the reasonable period to make arrangements for returning a deportee can be longer than would otherwise be the case where there is a risk that the deportee will abscond or re-offend. In R(M) v Secretary of State for the Home Department [2008] EWCA Civ 307, Dyson LJ stated (at paragaph14),

Mr Auburn further submits that although when viewed as a whole a period may be long, where deportation is reasonably in prospect at each point a lengthy detention may not be unreasonable, relying on R (TP) v Secretary of State for the Home Department [2009] CSOH 121. As is apparent from its citation, this is a Scots case.

Mr Auburn relies on the Claimant’s (almost continuous) refusal to return. He says that it is relevant both to the risk of absconding, and generally to the reasonableness of the length of any detention. The Court of Appeal in I, he submits, agreed that a refusal voluntarily to return was a relevant consideration, but disagreed about the weight to be attached to it. Mr Auburn also referred me to A v SSHD [2007] EWCA Civ 804. In that case, Toulson LJ said (at paragraph 54):

Toulson LJ further held (at paragraphs 57-58) that A’s desire not to return to Somalia because the situation there was volatile and chaotic was irrelevant to the lawfulness of his detention in circumstances where his return would not have involved a breach of the Refugee Convention or the European Convention on Human Rights (“the ECHR”).

I can see why Mr Auburn draws my attention to this passage in A. However, it must be read with some caution, as, in my judgment, Lord Dyson SCJ has recently re-stated the position with a somewhat different emphasis, in Lumba, at paragraphs 122-128. He said that a refusal to return voluntarily may lead to a proper inference that there is a risk of absconding, but not always.

It was necessary, in his judgment, to distinguish between cases where return is possible and where it is not. If return is not possible, then a refusal to go voluntarily cannot be held against a claimant. Refusal to accept voluntary repatriation is an irrelevant consideration where (i) return is not possible for reasons extraneous to the detainee; or (ii) the detainee is pursuing appeals against his deportation, provided that the appeals are not abusive. In all other cases, it is a relevant consideration, but not a trump card.

At paragraph 128 he said,

Even if return is possible, if a claimant challenges his deportation, it is entirely reasonable for him to stay in the United Kingdom pending the outcome of those proceedings (unless they are an abuse). He said (at paragraph 127), “The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a real risk of persecution or treatment contrary to article 3”. A detainee should not be penalised for seeking to vindicate his rights under the ECHR or under the Refugee Convention.

Lord Dyson considered the effect of the exercise of appeal rights in Lumba, at paragraphs 111-121. He rejected any rule which would exclude time spent on appeals from the assessment of what is a reasonable period. His conclusions were that time spent pursuing hopeless legal challenges should be given minimal weight in the assessment (paragraph 120), particularly where the appeal is the only bar to removal (paragraph 121). Where there have been orders for reconsideration and grant of permission to appeal by the Court of Appeal, “the court will easily recognise that the challenge has some merit” (paragraph 120). On the other hand, the entire period pursuing a meritorious appeal does not necessarily mean that the whole period of detention should be counted to the benefit of the detainee. Risks of re-offending and of absconding will also be relevant, and of paramount importance (paragraph 121).

For the Claimant, Mr Slatter submits that it should have been obvious to the Secretary of State either from the outset of the Claimant’s detention, or if not, then shortly after that, that the Secretary of State would not be able to remove the Claimant within a reasonable time. Mr Auburn, on the other hand, argues that it was at all times, or at any rate, at all times until 23 October 2009, clear that removal would be possible within a reasonable time. 23 October 2009 was the date when the Claimant withdrew his short-lived consent to voluntary return.

Mr Slatter relies on the absence of any removals to Baghdad, the only place in Iraq to which the Claimant could have been removed, and to the evidence which was referred to by the Judges in MI and in Bashir. Moreover, both sides agreed, for the purposes of the AIT appeal in February 2008, that the Claimant could not be removed to Iraq at that stage. The AIT also recorded that there was no means of knowing when or how he would be deported (determination, paragraph 41). This was a clear recognition, submits Mr Slatter, that the Secretary of State was not going to be able to remove the Claimant within a reasonable time.

Mr Slatter also relies on the availability of travel documents. There was no difficulty here; by the time the Claimant had exhausted his appeal rights on 20 March 2008 against the decision of 8 November 2007, the only bar to removal was the inability of the Secretary of State to make the necessary arrangements.

He further submits that it was clear that the prospect of any return, other than the voluntary return of a person who did not come from Kurdistan, was remote: MI at paragraph 58. Burnett J held in that case that it should have been apparent from the detention review for MI on 30 June 2008 (see paragraph 63), and for AO on 8 January 2008 (see paragraphs 70, and 77-78), that removal could not be effected within a reasonable time. However, I note that the point at which the detention of each of those claimants became unlawful depended on the particular features of each case, including the periods for which they had already been detained, and their risks of absconding and re-offending.

Mr Slatter also draws my attention to Burnett J’s statement in paragraph 52 of the judgment in MI about the Secretary of State’s hopes about removal. While in that case Burnett J had little doubt that the Secretary of State did have such a hope, that was all the evidence showed it to be (paragraph 61). He also refers to paragraph 63 of that judgment.

Mr Slatter also refers to the Claimant’s representations of 23 June 2008, asking for revocation of the deportation order signed on 12 May 2008. Eventually, on 13 August 2008, the Secretary of State said that the Claimant’s case would be reconsidered. Later, on 26 January 2009, the Secretary of State did revoke the deportation order and made another decision. In due course, the appeal against that decision was allowed by consent. At that stage, the Secretary of State accepted that the Tribunal should have allowed the Claimant’s appeal under article 3 of the ECHR.

He submits that the initial criteria for inclusion on the first return to Baghdad on 15 October 2009, as noted by Langstaff J in A, expressly excluded Kurds from outside Kurdistan (paragraphs 41- 42). The Iraqi Colonel at the airport had objected to returnees who were Kurdish due to fears for their safety (paragraph 47). A reluctance in Baghdad to receive those who were Kurdish featured persistently throughout the evidence heard by Langstaff J (paragraph 50). On 19 February 2010, Langstaff J held that the prospect of a Kurdish deportee being next removed to Baghdad before the end of the calendar year was unlikely given the history of the time taken to make the necessary arrangements (paragraphs 60-62).

Mr Auburn submits, in brief, that there are three reasons why detention was for a reasonable period.

I will first consider the impact of the third Hardial Singh principle, as it determines the outer limit of lawful detention. I must decide, by reference to the third Hardial Singh principle, first, what a reasonable period of detention would have been, and then at what stage, if any, before the expiry of that period, it was, or should have been, clear to the Secretary of State that it was not going to be possible to remove the Claimant within that reasonable period. If that principle has been breached, the Claimant is entitled to more than nominal damages for any detention in beyond that limit. I will then consider whether, at any stage before any breach of the third Hardial Singh principle, the Claimant’s detention was, or became, unlawful for any other reason. I will also consider whether, in respect of any part of that period or periods, the Claimant is entitled to more than nominal damages.

In Lumba, Lord Dyson SCJ said that a convenient starting point is to determine whether, and if so, when, there is a realistic prospect of removal (judgment, paragraph 103). There may be cases where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport within a period that is reasonable in all the circumstances, having regard, in particular, to the time the person has already spent in detention. What is reasonable depends on a broad assessment of all the relevant features of the case.

We now know that the removal of the Claimant was not possible at any time during the period of his detention, essentially because the Claimant is a Kurd from Baghdad. First, he did not fit the criteria for removal to the area of the KRG. Second, in my judgment, it was doubtful, to say the last, for a long period, whether removals could take place to Baghdad at all; but third, once the first (and as far as I have been told) only such removal had taken place, clear that a removal of a Kurd to Baghdad was not possible either.

It does not necessarily follow that there was never a realistic prospect of removal within a reasonable time in this case, however. Even if, given the unsettled conditions in Iraq, such a prospect rested only on a hope, as Burnett J held in MI and AO, a period of detention could, nonetheless, have been in accordance with the Hardial Singh principles at least for some of that time. This case is on all fours with those cases in that respect, in particular because the period when Central and Southern Iraq were (temporarily, as it later became clear) more stable, coincided with the early stages of the Claimant’s detention.

Moreover, the claimants in those cases posed significantly lower risks of re-offending and of absconding than the Claimant. The Claimant had a worse record of offending, and a more serious index offence, than the claimants in those cases. He had committed two bail offences, and even his own expert (whose evidence is summarised in one of the AIT’s determinations) assessed his risk of re-offending as medium. The AIT’s reasons for refusing bail (on more than one occasion) refer to these aspects of his case. So, on the face of it, if broadly similar considerations apply to the reasonable period in the Claimant’s case and to those in the other Iraqi cases, a longer period of detention would be justified in his case than in theirs.

I do not consider, however, that the Claimant’s refusal to return voluntarily helps in this assessment, despite the fact that in October 2009 the Claimant briefly expressed an interest in the FRS. First, there is an inherent contradiction in the reasoning many of the later detention reviews, which is reflected in the submissions Mr Auburn makes about this part of the case. Many of the progress reports attached to the acknowledgement of service give the Claimant’s refusal to return voluntarily as a reason for his continuing detention. Very many of the detention reviews repeat, in identical terms, that the Claimant was visited on 12 September 2008 by an immigration officer who “assertively recommended” the FRS. They say that the Claimant “repeated” (my emphasis) that he had no interest in this, “because his family were in the UK and he had no desire to go back to Iraq”. The detention reviews then say, under the ‘removal’ heading, “Once [the Claimant’s] appeal rights are exhausted, he will still be in a position to leave the UK voluntarily”, to give an example (from 6 March 2009).

Second, for most of the period of his detention, the Claimant was either pursuing what turned out to be a meritorious appeal (against the second decision), or making representations of one kind or another about, or appealing against, a decision which the Secretary of State ultimately withdrew (the first decision). I do not consider that in those circumstances, the Secretary of State could reasonably have believed that the Claimant would, or indeed, should, leave voluntarily.

Nor do the detention reviews suggest that there was any material on which any hope of voluntary return rested (leaving aside the few days in October 2009 between the date when the Claimant accepted the FRS, only to reject it again within a few days). The documents only refer to two occasions when the FRS was “assertively recommended” to the Claimant, in August and September 2008. Neither the repeated reminders of the FRS in the monthly progress reports, nor the fluctuating amounts on offer, even £3000, enticed the Claimant, until a brief period in October 2009, by which point he had been detained for two years past the end of his custodial term.

His brief acceptance of the FRS in October 2009 may seem surprising (particularly since he was only offered £500 at that stage), but perhaps he decided that he might prefer freedom in Iraq to custody in the United Kingdom. But in my judgment (and apart from a few days in October 2009), in the light of what had gone before, the Secretary of State did not have a reasonable expectation that the Claimant would accept the FRS after September 2008. By then he had twice, and trenchantly, refused it.

I conclude from the references to voluntary return in the detention reviews, and its prominence in the reasoning under the removal heading, that, in the absence of any evidence explaining the Secretary of State’s thought processes during this period, detention was being used to put pressure on the Claimant to leave voluntarily. Moreover, this pressure was being exerted in circumstances where the Secretary of State’s own documents gave no grounds at all for any reasonable belief that (absent such pressure), the Claimant would in fact return voluntarily, and the Claimant was giving every sign of wanting to stay in the United Kingdom.

I can understand that his refusal to leave willingly might have been frustrating for those dealing with his case, but it does not justify his prolonged detention in circumstances where (a) for much of the period there were no reasonable grounds to think he would go voluntarily; and (b) there was, in any event, no realistic prospect of removing him. While it might have been reasonable for the Secretary of State to rely on the possibility of voluntary return before September 2008, it was not reasonable after that.

In the absence of the authorities to which I have referred above, I would have rejected a submission by Mr Auburn that the phrase “pending his removal or departure from the United Kingdom” in paragraph 2(3) of Schedule 3 to the 1971 enables the Secretary of State to detain a FNP for the purposes of getting him to leave voluntarily. In my judgment the word “departure” puts an outer temporal limit on the exercise of the power to detain, but does not cast any light on its purpose. The result of a deportation order may be that a person is removed, or that he leaves in response to it, and that is why the word “departure” is used. The proximity in Schedule 3, in adjacent paragraphs, of the removal and detention powers reinforces my view that detention must be for the purposes of removal, and not of coercing departure.

I would therefore have held that a refusal to return voluntarily cannot be relevant to the assessment of what is a reasonable period of detention. I am bound, nonetheless, to hold that, in law, it is of some relevance. On the facts of this case, however, it can only be relevant during the period before September 2008.

I wondered initially whether the decision in HH might undermine the basis of the Claimant’s detention by undermining the validity of the first decision to make a deportation order. As I have mentioned, Mr Slatter very fairly drew my attention, in this context, to the decisions of Burnett J and of the Court of Appeal in MI. I consider that I am bound by the decision of the Court of Appeal to hold that this is not a permissible line of attack on the validity of that order, or, it follows, on any period of detention pursuant to it.

This is a somewhat more difficult issue. It could be said that the decision of the Court of Appeal shows that the second decision to make a deportation order was always unlawful, as it was eventually accepted by the Secretary of State, in short, that to refoule the Claimant would put him at risk of a breach of his article 3 rights. It could be said that the consent order declared the legal position, and that that had always been the legal position. I do not consider that the issue is as straightforward as that, however. In my judgment, the consent order expresses a mixed conclusion of fact and law. It cannot be inferred that that mixed conclusion must necessarily have been reached by any decision maker at any time during the currency of the second decision. Rather, it seems to me, it only crystallised at the date of the determination of IJ Pullig, as it was from his mixed conclusions of fact and law that the position declared in the consent order was deduced. It follows, in my judgment, that from 24 June 2010, at the latest, it should have been clear that the removal of the Claimant to Iraq would have led to a breach of his article 3 rights; and thus, from that date at the latest, it was not lawful to detain him “pending removal”.

I conclude, taking all these factors into account, that a reasonable period of detention in this case would have been 18 months. There were risks of absconding and re-offending, which cannot be understated, but the Claimant had evidently co-operated in providing his bio data. Did it, or should it have, become clear to the Secretary of State before the Claimant had been detained for 18 months (that is, before 11 May 2009), that removal was not going to be possible within a reasonable period? I consider that it did, or should have done.

It is true that initially there was an improvement in conditions in Iraq during late 2007 to early 2008. It was only clear with hindsight that this was to be a temporary improvement; and even after conditions worsened, the Secretary of State might reasonably have thought, for a time, that they would improve again. But they did not, and the Secretary of State must have known, that even if they did improve again, making arrangements for the removal of Iraqi Kurds other than to the KRG would be bound to take time, as Burnett J pointed out in MI.

As Burnett J said, there is a limit to the length of time for which the prospects of removal to an unstable country can be permitted to rest on little more than a hope. It is conceivable that if the Secretary of State had served some evidence in this case explaining her thought processes from Summer 2008 onwards, I might have been persuaded otherwise. For example, the Secretary of State might have referred to negotiations with the Iraqi Government following the MOU as grounds for a belief that there was a reasonable prospect of removing Kurds to Central and Southern Iraq within a reasonable time. But there is no such evidence. Nor is there any material in the detention reviews to support a suggestion that removal was likely within a matter of months, or that anybody thought that it was. The formula that there is “a reasonable prospect of removal within a reasonable time” is repeated many times, but no objective grounds for that view are evident.

In all the circumstances I conclude that it should have been clear to the Secretary of State by 8 January 2009, when the deportation order was revoked, that removal was not going to be possible within a reasonable time. There is no evidence that there was any prospect of removing the Claimant, or that anyone considered, on reasonable grounds, that there was such a prospect. In addition the fact that a new immigration decision would be made meant that the Claimant would then have a second, in-country, right of appeal. There was no reason to think that he would not invoke that right, with the result that for some months, there would be a legal bar to removal, in addition to the fact that there was no apparent prospect of removal’s taking place. This means that the Claimant is entitled to damages to compensate him for his detention from that date to the date when he was released on bail.

On the limited evidence I conclude that, on the balance of probabilities, the Claimant was detained pursuant to Cullen from the outset until the date in September 2008 (apparently 9 September) when that policy lapsed. That means that his detention for that period was unlawful. I conclude that from September 2008 until 8 January 2009, however, his detention was lawful.

In my judgment, had the Claimant not been detained on the basis of the Cullen policy, the Secretary of State could lawfully have detained him between 7 November 2007 and September 2008, and would have done so. He is therefore entitled to nominal damages only in respect of that period of unlawful detention.

For these reasons, I reach the following five conclusions.

I will hear, or deal in writing with, submissions about the form of order, and in particular, about the terms of any declaration.