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

The Claimant is a Pakistani national, born in 1970: he says he does not know his precise date of birth. He came to this country in December 2000 and claimed asylum, on the basis that he faced persecution in Pakistan because he had become Ahmadi. The history of his immigration status over the following years is rather unclear, but it is immaterial for present purposes. On 14 March 2007 he was convicted following a trial in the Crown Court of wounding his wife with the intent to do grievous bodily harm. He absconded in the interval immediately following his conviction and was on 16 March sentenced in his absence to four years’ imprisonment. The Judge made a recommendation for deportation. A few months later he surrendered himself, apparently spontaneously; and on 30 July 2007 he began to serve his sentence.

On 1 April 2009 the custodial portion of the Claimant’s sentence expired, but the Secretary of State maintained his detention under para. 2 (3) of Schedule 3 to the Immigration Act 1971, and on 9 July 2009 a deportation order was made. The Claimant appealed against the order. On 31 July he was released on bail by the Asylum and Immigration Tribunal. His appeal was refused on 10 November 2009: the decision also involved the dismissal of any claim that he had to asylum. The Tribunal found that his account of having become an Ahmadi was fabricated. His appeal rights became exhausted on 11 December 2009.

It was a condition of the Claimant’s bail that he lived with two named sureties. However, in the spring of 2010 the sureties in question made it clear that they no longer wished to accommodate him. He was re-detained on 23 April 2010 and has remained in detention ever since, i.e. for just over two years. Throughout the period following his appeal, the UK Borders Agency (“UKBA”) has been making efforts to arrange his deportation to Pakistan, but they have encountered difficulties. The essential problem is that he has no passport or other identity documents, and the Pakistani authorities are unwilling to provide travel documents unless he provides sufficient information to verify that he is who he says he is. He has been either unwilling or unable to provide that information. I will return to this aspect in due course.

By these proceedings, which were issued on 27 January this year, the Claimant seeks a declaration that his detention since 23 April 2010, or alternatively from such later date as the Court may determine, has been unlawful; together with a declaration that his rights under article 5 of the European Convention of Human Rights have been breached. He seeks a mandatory order for his immediate release, together with damages. Permission to apply for judicial review was granted on 2 March 2012. He has been represented before me by Mr Adam Sandell and the Home Secretary has been represented by Ms Julie Anderson.

Initially the Claimant based his claim entirely on what I may call Hardial Singh principles. In his skeleton argument lodged in the week before the hearing Mr Sandell raised a further distinct point based on an alleged technical defect in the decision to re-detain the Claimant on 23 April 2010. The day before the hearing he gave notice of a third point based on the very recent decision of the European Court of Human Rights in Mathloom v Greece; but it is common ground that that issue cannot be considered without a further hearing.

I take first the technical point. The Secretary of State provided on disclosure the minute of the decision taken to re-detain the Claimant in April 2010, which is dated 16 April. It is headed “Minutes of a Decision to Detain a Person in accordance with section 36 (1) of the UK Borders Act 2007”. Likewise, the notice of detention itself refers to section 36 (1) of the 2007 Act. In fact, as Mr Sandell points out, section 36 was inapplicable in the circumstances of the Claimant’s case. It confers a power on the Secretary of State to detain a person – to paraphrase – pending the making of a deportation order. But a deportation order had already been made. The relevant power in the Claimant’s case was, as I have already said, under para. 2 (3) of Schedule 3 to the 1971 Act, which reads (so far as material) as follows:

I do not accept that argument. This is not a case of the type which was under consideration in Lumba. The decision to detain in that case was unlawful because it was taken pursuant to a policy which required detention on a blanket basis in every case: the point made by Lord Dyson was that it was no answer to say that as a matter of fact the same decision would almost certainly have been reached if the decision had been made on a the basis of the facts of the particular case. In the present case, by contrast, the reference to section 36 did not entail any unlawful element. It was simply a mislabelling of a perfectly lawful power. It is not suggested that the decision-taker would or should have had regard to different considerations if he had correctly described the power under which he was acting as deriving from the 1971 Act. Since the point is one which only emerged on disclosure and is based on a real – and I have to say careless – error I think it appropriate to allow the Claimant permission to take the point. But I dismiss it on its merits.

I return to the initially pleaded case. The relevant principles are not in doubt. They are most conveniently to be found in paras. 46-48 of the judgment of Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196, which adopts and expands the original statement of principle by Woolf J in R v Governor of Durham Prison, ex p. Hardial Singh[1984] 1 WLR 704. They read as follows:

Essentially the same principles apply if the case is framed by reference to article 5 of the Convention. I have been referred to a large number of authorities which exemplify the application of these principles in particular cases, but both Mr Sandell and Ms Anderson were agreed that these were of limited value since everything depends on the particular circumstances of the particular case – though neither could resist referring me nevertheless to cases that they thought helped them.

The Claimant’s case can be summarised as follows. It was not reasonable in all the circumstances for the Secretary of State to re-detain him on 23 April 2010 (bearing in mind that he had already been detained during the previous year for some four months); but, even if it was, the period for which it was reasonable to detain him expired some time ago - or, at least, should be treated as expiring as at the date of my decision, so that he should not be detained any longer. Having regard to the factors identified in the authorities:

I start by considering the problems which have prevented the Claimant’s removal to date. It is necessary to go through the history chronologically.

An application for emergency travel documents for the Claimant was submitted to the Pakistani High Commission on 31 August 2009, i.e. within about four weeks of the deportation order being made. I do not regard that as unduly slow. Mr Sandell made the point that the file showed that papers had been at least partly prepared over six months previously, while the Claimant was still serving his custodial sentence; but it seems to me entirely reasonable for UKBA to await the making of a formal deportation order. Though no doubt it was likely that such an order would be made, that could not be assumed. It is also a consideration that emergency travel documents have only a limited shelf-life – in the case of Pakistan, one month from the date of issue – so that if they are obtained before they can be used the work may be wasted. There was at that stage no reason to anticipate problems with the application.

An interview was arranged for the Claimant at the Pakistani High Commission on 9 September, but it was cancelled at the request of his own representatives, presumably because his appeal against the deportation order was now pending. Nothing was done by UKBA to press the issue of emergency travel documents until the appeal had been resolved. That too was in my view entirely reasonable. There was no point in expending resources on an application that might turn out to be unnecessary, or at least premature. The Claimant was of course by then on bail.

Following the exhaustion of the Claimant’s appeal rights further arrangements were made for him to be interviewed, and it was decided that he should be re-detained. But that decision was not, however, implemented. While he was still on bail the Claimant attended an interview at the Pakistani High Commission on 9 April 2010. There was no immediate report from the High Commission to UKBA of the outcome of the interview, but there was no reason to anticipate that there had been any difficulties.

A further decision in relation to the Claimant’s detention was made on 16 April, as already discussed above. There is a full minute reviewing the relevant factors. The summary, headed “Proposal”, reads:

The Claimant was duly re-detained on 23 April. The High Commission was chased for a report on the outcome of its meeting with him on 9 April. On 4 June the response was received that

On 29 May 2011 the Claimant made representations to the Secretary of State seeking to raise a fresh claim for asylum based on reports of recent attacks on Ahmadis in Pakistan. They were considered and rejected by letter dated 2 August. They were certified under section 94 of the Nationality Immigration and Asylum Act 2002 – plainly correctly, since the Tribunal had decided that he was not an Ahmadi. UKBA did not attempt to progress his removal during the time that these representations were being considered. They cannot be criticised for awaiting their outcome.

On 28 July 2010, having advance notice of the impending refusal of the fresh representations, the relevant case worker in UKBA contacted the “Pakistan Business Expert” at the specialist unit dealing with such cases (“RGDU”) and asked him to inform the High Commission that the provision of travel documents was now the only barrier to the Claimant’s removal. The Commission’s response, received on 13 September, was, as recorded in the file:

At this stage something went wrong. The RGDU Pakistan Business Expert approached the staff at the High Commission on 19 January asking for an urgent update: that, however, rather missed the point since the Commission had left the ball in UKBA’s court. More seriously, he gave the High Commission photocopies of a passport which was in the name of a Mohammed Akram but in fact related to a gentleman called Sheraz Hussein. There is a history to this. It had been noted earlier in the file that UKBA had records of two Mohammed Akrams who appeared to have the same date of birth (though it is in fact evident on any but the most superficial reading that the dates in question – 1.1.70 - were conventional and simply reflected the fact that at that point UKBA did not have a precise date of birth for either), one of the two being Sheraz Hussein. Although it is not clear that UKBA had at that stage got to the bottom of this confusion, they were aware in general terms that it existed. When it became clear, in mid-February, that UKBA were now proceeding on the basis that he was Sheraz Hussein the Claimant protested. The matter was investigated by an Immigration Officer, and eventually on 20 June 2011 a report was received confirming the true position. The author of the report observes:

While it is easy to understand the difficulties which UKBA has to deal with in cases of this kind, I must proceed on the basis that it was at least to some extent at fault in allowing the confusion about this Claimant’s identity to arise, or at least to persist as long as it did. Mr Sandell says that UKBA’s failure in this regard created a substantial delay in the proper investigation of his case. I am not convinced that that is the case. An assertive interview of the kind conducted in May 2011 would have been necessary in any case once it became clear that the Claimant had no documentary support for his claimed identity. Perhaps it might have occurred a month or two earlier, but it is not clear that that is so.

In any event, once it had been definitively established that the Claimant was not Sheraz Hussein, a fresh application was made to the Pakistan High Commission, incorporating only such information as UKBA had for the Claimant, on 22 June 2011. I have no record of when a response was received, but the file shows that by early November it was understood that “the Pakistanis are unable to verify this case without supporting evidence”.

By October 2011 UKBA appreciated that this was a case of real difficulty. Various steps were taken to obtain more information that would satisfy the Pakistani authorities. These are set out in Mr Grimes’ witness statement. In summary:

Until September 2011 the Claimant made repeated applications for bail, but they were resisted by UKBA, principally on the basis of his criminal record and history of absconding, and bail was refused by the Tribunal on each occasion. He has made no applications since that date.

That is the history to date. I turn to consider the various factors on which the question of the lawfulness of the Claimant’s detention depends.

I start with the question of the extent to which the failure of UKBA to obtain travel documents for the Claimant over so long a period is the result either of lack of diligence, or other fault, on its part or of non-co-operation, or other fault, on the part of the Claimant.

Taking the Claimant first, substantial parts of the delay are matters for which he must take responsibility – specifically the confusion at his interview with the Pakistani High Commission about whether he had an outstanding legacy claim and his subsequent ill-founded fresh representations claim. It may be debatable to what extent his conduct in these regards was positively culpable; certainly I accept that it has not been shown to be heinous or obviously cynical. But that may not ultimately matter very much. The more important question is whether the fundamental problem about his failure to provide solid information about his life in Pakistan such as would enable his identity to be verified is due to his being unable to do so or whether he is holding useful information back. This is, frankly, not a question on which it is easy to form a reliable view in proceedings of this sort, where I have not heard the Claimant give evidence and have only a sketchy outline of the information sought and provided. I accept that the Claimant has not been in Pakistan for many years. Even so, I agree with the view expressed by Mr Grimes that “it is implausible that a person who has been born educated and lived as an adult in Pakistan cannot provide any information or connections to establish his identity”. I strongly suspect that the Claimant could provide better information if he chose. To the extent that it is necessary to make a finding on the question I would find, on the balance of probabilities, that the Claimant had indeed withheld information; but I have to acknowledge that that finding is based only on general considerations rather than on specific evidence.

Turning to UKBA, I have found that they were at fault in relation to the Sheraz Hussein episode, which may, at most, have set back its enquiries by three months. But it is not the law that a period of detention must be regarded as unreasonable merely because some part of the removal process could have been progressed more quickly. The judgment required is a broader one. UKBA was in a genuinely difficult situation caused by the absence of any authoritative documentation establishing the Claimant’s identity, and the confusion which arose over his apparent namesake is the more venial in that context. In other respects, I can see nothing to criticise. Much of the apparent delay in the earlier part of the period was, as I have said, attributable to things done, or not done, by the Claimant; and the steps taken in the last few months appear to have been energetic and appropriate – certainly Mr Sandell found nothing to criticise in them.

Two other factors need to be brought into the equation, namely the risks of re-offending and of absconding if the Claimant were released.

So far as re-offending is concerned, the fact that the Claimant has a conviction for a serious offence of violence is concerning. He has never admitted his guilt and he has accordingly not had the benefit, such as it might have been, of any courses in prison designed to address his offending behaviour. Mr Sandell, as I have said, pointed out that the offence was committed in very particular circumstances and that the Judge declined to make a finding of dangerousness. However, there are some other indications in the papers before me of a tendency to at least aggressive behaviour. When the Claimant fell out with his sureties in March 2010, they told UKBA that he had been “very threatening and rude” and that they had reported him to the police. On the other hand, no charges ensued and they also told UKBA that “it wasn’t about the threatening, it was about them not wanting to be sureties”: the Claimant’s account is that they wanted him to leave because he could not contribute financially. Following his re-detention there was an incident when an allegation was made a sexual assault of some kind, but the Claimant says that this was fabricated, and, again, there is no indication that the matter was taken further. As against all that, he received consistently good reports for his conduct in prison and has also undertaken positive roles while in detention. The overall picture which I draw from the evidence is of a man who is capable of resorting to violence but does not habitually do so. It was entirely legitimate of UKBA to take his previous conviction into account in its initial decision to re-detain the Claimant and to maintain his detention since then; but the risk is not of such a character and degree as to justify his indefinite detention in order to protect the public.

As for the risk of absconding, here too the Claimant’s previous history shows that the risk is real, and I can understand why UKBA has taken that risk into account in resisting bail. I was reminded by Ms Anderson that, at least as a general proposition, the temptation to abscond becomes greater the more imminent the prospect of removal. But, again, the picture is not straightforward. Although the Claimant absconded in 2007 he did surrender himself voluntarily, and he complied with his bail conditions when released in 2010 and was himself pro-active in reporting the problems with his sureties. A further consideration is that the Claimant has recently been diagnosed with hepatitis C. Although he is not symptomatic, the medical advice is that his condition requires regular monitoring, which means that it will be less likely that the Claimant will wish to abscond or will be able to cover his tracks if he does so. (I should add for completeness that the Claimant does not assert that his condition is itself a reason why he should not be removed.)

Weighing all those factors, I have come to the conclusion that it is no longer reasonable to detain the Claimant or, to put it another way, that there is not a sufficient prospect of his being removed within a reasonable period to justify his continuing detention. His case has over the last nine months or so been treated as a priority and UKBA has put, apparently, all the efforts that it can into obtaining the information that would persuade the Pakistani authorities to provide travel documents, including the raising of his case by the Home Secretary. But those efforts have so far proved fruitless, and there is no evidence that things are about to change. It is now almost six months since the Home Secretary’s visit to Pakistan; but there are no signs of substantial progress. I do not say that his removal has become impossible. On the contrary, I think it more likely than not that at some point the process of engagement with the Pakistani authorities and/or the supply of further information will lead to the issue of travel documents. But there is no indication of when that might be. In circumstances where the claimant has already been in detention for two years (with another four months in 2010) I do not believe that it is reasonable to continue to detain him on the basis of the likelihood that it will be possible to remove him sooner or later. If there were a high risk of his committing further serious offences or even of absconding the balance would fall differently; but the risks in question, as discussed at paragraphs 29 and 30 above, are not in my judgment high. I take into account the consideration that the Claimant may be the author of his own circumstances by his failure to supply information which would assist the removal process; but that cannot justify indefinite detention.

I would accordingly order the Claimant’s immediate release, subject only to the setting of appropriate conditions for release. I have given counsel advance notice of this aspect of my decision, and terms acceptable to the Defendant have been agreed.

There remains the question whether the Claimant’s detention had become unlawful at some earlier point. I have already held that his re-detention was lawful (see paragraph 15 above). In my judgment it has not been established that the prospects of his removal became sufficiently poor that his continued detention could not be justified at any significantly prior date; or that UKBA would have reached the present apparent impasse significantly sooner if they had used more diligence (bearing in mind the absence of almost any useful information from the Claimant); or, overall, that his detention up to now has been unreasonable. I acknowledge that to a purist it may seem unacceptably pragmatic to treat the date of this judgment as marking the precise moment at which the period of the Claimant’s detention becomes excessive; but any date taken will be to some extent arbitrary. I believe that the broad justice of the case is best served by adopting the date that I have.