Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
NICHOLAS PAINES, QC
(Sitting as a Deputy Judge of the High Court)
Between :
THE QUEEN ON THE APPLICATION OF MAHMOUD | Claimant |
- and - | |
SECRETARY OF STATE FOR HOME DEPARTMENT | Defendant |
Mr T Richards (instructed by Sutovic & Hartigan) for the Claimant
Mr O Draper (instructed by Treasury Solicitor) for the Defendant
Hearing date: 30th March 2012
Approved Judgment
Nicholas Paines QC :
This is my final judgment in this case. It replaces the judgment I delivered orally on 28 May, in which I gave a ruling on the legality of the claimant’s detention over the period from its inception until the latter part of 2011. I found that the detention was for the most part lawful though the claimant is, in my judgment, entitled to nominal damages for a period when detention was maintained in the mistaken belief that he originated from the Kurdish Region of Iraq. At the time I delivered judgment I did not feel able to rule conclusively on the lawfulness of detention since the date of the decision of the Court of Appeal setting aside the judgment of the Upper Tribunal in the case of HM (Iraq), to which I shall go on to refer. In the light of the further submissions received from both parties, I conclude that the claimant’s detention order (he is currently on bail) has remained lawful.
The Facts
The claimant is a citizen of Iraq. He is of half Kurdish descent and born in September 1984. He originates from Mahmour. This is in the area controlled by the Baghdad authorities, as I shall call them, to distinguish the main part of Iraq from the northern region controlled by the Kurdish Regional Government, to which I shall refer from time to time as the KRG.
It appears the claimant arrived in the United Kingdom on 2 July 2002 and immediately claimed asylum. He was then aged about 17¾. He said that he had arrived that day on a lorry via Turkey. The basis of his asylum claim was that he used to work with his father in a motor tyre shop. His father had gone to buy some tyres from a government source using money provided by some customers. The money proved to be counterfeit and the claimant's father was arrested for fraud against the government. Later the security forces returned to the claimant's home and told him to collect his father's body as his father had been hanged for this alleged crime. The claimant's grandfather advised the claimant to leave Iraq or else he would be hanged too.
The Secretary of State rejected the claim for asylum, taking the view that if the security forces had intended to take reprisals against the claimant they would have done so when they had the opportunity to take him away from his house at the time of the visit that the claimant described. Secondly, the Secretary of State noted that the claimant had travelled to the UK through safe countries and did not claim asylum in those countries. The Secretary of State granted exceptional leave to remain until July 2006 in accordance with policy. The claimant did not appeal against the decision.
Fairly soon the claimant began to commit criminal offences. In June 2003, he was convicted of driving with excess alcohol and having no insurance and was given an 80-hour community punishment order. In July that of year, he was convicted of two counts of driving whilst disqualified and driving without insurance, also of breach of bail and breach of his community punishment order. He was sentenced to 3 months' detention in a Young Offenders Institution. In March 2004, he was convicted again of driving whilst disqualified and having no insurance and was sentenced to 4 months' detention in a Young Offenders Institution. In April of 2004, he was again convicted of two counts of driving whilst disqualified and convicted of breach of bail. There is a dispute about whether he was also convicted of two counts of theft. The claimant disputed that before the Asylum and Immigration Tribunal, though the tribunal on that occasion preferred the evidence of the Secretary of State. It is fair to say, as Mr Richards on behalf of the claimant did to me at the hearing, that the Secretary of State has never produced a certificate of conviction.
In November 2004, the claimant was again convicted of driving whilst disqualified and having no insurance and also of failing to stop. He was again sentenced to detention in a Young Offenders Institution, this time for 120 days. In August 2005, he was yet again convicted of driving whilst disqualified and having no insurance. He was also, according to the Secretary of State, convicted of possession of an offensive weapon. The claimant disputed that before the AIT, which again rejected his evidence, though no certificate of conviction has been produced. In February 2006 he was convicted of a relatively minor matter of breach of the supervision order and fined £20. In November 2007 he was convicted after a four-day trial, having pleaded not guilty, of dangerous driving. He was sentenced to 12 months' imprisonment and, in his sentencing remarks, HH Judge Barrett QC said:
"The circumstances of your driving, as the jury found and were satisfied so that they were sure, put many people in the community at grave risk of severe injury. Driving on the wrong side of the road at a time when schools were coming out from the end of a day, in a busy shopping area and around not one but a number of roundabouts, so that it was perchance rather than deliberate that the oncoming traffic was not involved in a head-on collision. Given your previous record and giving the appalling dangerous nature of your driving, pursued as you well knew by a police car, I have only one alternative in my judgment in terms of sentence, which is to impose a sentence of immediate custody."
At that time, the claimant was in a relationship with a young woman, Lorrayne. She was carrying their child. Following the claimant's imprisonment at the sentencing hearing on 14 December 2007, Lorrayne ended the relationship in a telephone conversation on 14 February 2008. Their son was born in July 2008. The claimant has never seen him and has had no contact with Lorrayne since February of 2008. The claimant said in his evidence to the AIT in July 2008 that Lorrayne's parents did not like him because of his offending. It seems, however, that Lorrayne's grandmother is more sympathetic. In late 2011 she told the claimant's solicitor that she spoke to the claimant on the telephone at least once a week and sends him photographs of his son. Lorrayne herself also told the solicitor that she was content for the claimant to see their son. The claimant has not seen him, as I have said. His bail curfew conditions prevent him travelling to Bolton, where Lorrayne and the boy live, by bus and Mr Richards told me the claimant cannot afford the rail fare. Mr Draper pointed out that the child could have been brought to see him if contact was valued by Lorrayne, and that had not happened. It also occurred to me that the claimant could afford albeit a smaller number of rail trips, at the same cost as a greater number of coach trips.
In January 2008, early in the prison sentence, the Secretary of State invited representations as to why the claimant should not be deported. The claimant appears at that stage to have relied on his family life with Lorrayne and prospective family life with his son as well as upon the situation in Iraq. Regarding the situation in Iraq, he said:
"Now that Saddam Hussain is gone I am afraid for my life to go back because of the area I used to live in. It is very unstable because of killings between Shia Muslims and Sunni Muslims and also the terrorists that are present in Iraq."
The representations were rejected and the Secretary of State decided to deport the claimant. He appealed to the AIT which summarised his evidence on danger in Iraq as follows:
"He asserted that his father assisted the previous regime and that he was responsible for the imprisonment of many Kurds. The Appellant had come from an area that was half Arab and half Kurd. He, however, left in 2002 and does not believe that he would be safe if he was returned to Iraq. He said that a bomb had recently exploded in Kirkuk and that his home area was not safe. His partner did not attend the hearing before us as they had now separated. His former partner had given birth to their son 'about three weeks ago' but he did not know his name. The Appellant had tried to make contact with his partner but her parents did not like him because 'I am in prison'. His attempts to make contact were unsuccessful and/or had been thwarted. He had had no contact with his partner since February of this year."
The tribunal dismissed his appeal, reasoning as follows:
"20. The essential basis of the Appellant's case is his asylum claim. This claim was refused in 2002 and was again refused within the context of a Reasons for Deportation letter dated 21st April 2008. We have to say that we too find little of any substance in the Appellant's asylum claim. His originally set out fears appear to have related to the former regime in Iraq. Unsurprisingly, perhaps, since the Appellant is said to have left that country in 2002. That regime is now no longer in place and the Appellant appears to have shifted the focus away from his original claims to fear as a consequence of his father's involvement with the former regime as opposed to persecution by it. The Appellant is clearly seeking to have it both ways. We take the clear view that his original asylum claim was entirely without merit and nothing has changed in its basis in the intervening years until the present application. He was reduced in the hearing before us to making highly generalised comments about the overall instability - which of course is probably accurate - of the situation within Iraq as opposed to targeted, or indeed the likelihood of, persecution directed at himself for any Convention or any other reason. There is therefore no substance to his asylum claim at all. We do not accept that he was or would be targeted for persecution or ill-treatment by any specified group within Iraq upon return. We are therefore agreed that his asylum claim is unmeritorious and should fail.
21. We apply the same findings and standard of proof to the Article 3 issues. We take the view that no Article of ECHR is activated by the Appellant's asylum claim.
22. No issues of humanitarian protection are raised by or attach to the Appellant's claim.
23. We now turn to the deportation issues. We set them within the context of our findings above and come to the view that there is nothing present within the Appellant's claim that rebuts the presumption in favour of his deportation.
24. We are in no doubt that the Appellant's criminal behaviour since his arrival into the UK more than justifies the decision to deport him to Iraq. He has committed a string of offences since his arrival. He has been warned not once but twice about the consequences of re-offending. He has paid no discernible attention to these warnings at all and if anything, his criminal conduct has intensified in seriousness. He can have no one to blame but himself for ignoring the warnings that were given to him. We take the view therefore that the presumption in favour of his deportation is not only justified but required in relation to this Appellant.
25. We have considered very carefully the Article 8 issues that have been raised by the Appellant. We are aware that he is now said to have a son born recently within the UK. While this may be so, it is of significance that no evidence of any sort has been adduced in support of this assertion. No witnesses attended the hearing on behalf of the Appellant and he did not even know the name of his son. There is therefore no evidence of any established family life in the UK presented by the Appellant in this case.
26. While it is probably inevitable that the Appellant will have - outside periods of imprisonment - established a private life in the UK over the six years or so since his arrival, we do not accept that this should prevent his deportation. We take the view that any interference with his private life is more than justified in the interests of public safety and efficient immigration control. There are simply no Article 8 issues that, in our judgment, affect the decision that he should be deported."
That decision was upheld on reconsideration.
The claimant had, in the meantime, been transferred to immigration detention in May 2008 upon his release from his criminal sentence. In March 2009 the Secretary of State took a fresh decision to make a deportation order and the claimant appealed again. That appeal was dismissed by the AIT. I shall not rehearse their reasons, but I note their concluding observation that:
"We would wish, however, to emphasise the public interest in the removal of the appellant in the light of his very serious criminal history, the very high risk of re-offending which he presents and his lack of remorse as we have found his attitude to be. We find that the respondent exercised her discretion correctly and mindful of the true facts."
This case is not concerned with the correctness of the deportation decision, but rather the lawfulness of detention. However, given that the detention is with a view to securing his removal, it is relevant for me to bear in mind the strong public interest in his removal found by the AIT. I also note a number of unsuccessful bail applications by him according to the very helpful chronology in Mr Richards's skeleton argument: four to the tribunal and two to the High Court. In February of last year in this court, Ouseley J considered bail of his own motion, and said "this is certainly not a case for bail". However, I acknowledge that the First-tier Tribunal did grant bail in September of 2011, subject to reporting and curfew conditions with an electronic tag. Mr Richards, on behalf of the claimant, challenges the unlawfulness of the claimant's initial immigration detention and his continuing detention on the well-known Hardial Singh principles.
The Law
Section 3(5) of the Immigration Act 1971 makes a person who is not a British citizen liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Section 5(1) makes provision for the making of a deportation order. In schedule 3 to the Act, paragraph 1(1) empowers the Secretary of State to give directions for the removal of a person against whom a deportation order is in force. Paragraph 2(3) provides that where a deportation order is in force a person may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom. The word "pending" has been judicially interpreted as containing the requirements both that the detention should be with a view to deportation or removal and that deportation should be in prospect.
In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, Woolf J, as he then was, said:
"7. Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorize detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
8. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
The principles set out by Woolf J were conveniently summarised by Lord Dyson in R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at paragraph 22 as follows:
"It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows:
(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 a 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."
I also note his conclusion at paragraph 88:
"To summarise, therefore, in cases such as these, all that the claimant has to do is to prove that he was detained. The Secretary of State must prove that the detention was justified in law. She cannot do this by showing that, although the decision to detain was tainted by public law error in the sense that I have described, a decision to detain free from error could and would have been made."
In R (I) v Secretary of State for the Home Department, Dyson LJ, as he then was, listed some of the relevant factors as follows:
"... In my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
Regarding the possibility of further offending, I note the observations of Toulson LJ in A v Secretary of State for the Home Department [2007] EWCA Civ 804 at paragraph 55 which were approved by Lord Dyson in Lumba. Toulson LJ said:
"A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view, that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because he has a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
Other relevant factors can be refusal to return voluntarily to the country of origin and the fact of an appeal or other judicial proceedings taken by the claimant where they prolong the duration of detention by postponing deportation. In the context of these matters, Mr Draper, for the Secretary of State, drew my attention to paragraphs 127 to 128 of Lumba, where Lord Dyson said:
"127. It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. 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 risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.
128. What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a "trump card" which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R(I), "the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation." If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R(I) and Keene LJ in R(A) and I agree with them."
Lord Dyson dealt with appeals by claimants in a passage culminating in paragraph 121. Discussing what was termed the exclusionary rule, that is to say a rule that time taken up by an appeal is to be excluded from the computation of time for Hardial Singh purposes, he concluded:
"To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Hussain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one."
Mr Draper drew attention to the indication that the risk of absconding and re-offending was "of paramount importance" though, as Mr Richards observed to me, Lord Dyson added at paragraph 123 a note of caution against inferring a risk of absconding in every case.
The challenge to the claimant's detention
For the purposes of his attack on the lawfulness of his client's detention, Mr Richards divides the overall span of detention into sub-periods. It was recognised that there is a degree of artificiality in this, but the nature of the obstacles to the claimant's removal has changed over time and it is necessary to review the situation, period by period, by reference to the obstacles which existed at various points in time and the likely timescale of their removal. Mr Richards invites me to adopt the approach of the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, and R MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 of balancing the prospects of removal with other relevant factors such as the risk of absconding and danger to the public, impact on Convention rights and so forth. He submits that there has been no sufficient prospect of removal within a reasonable time, either at the beginning or throughout almost all of the period of immigration detention, which is from May 2008 to date, albeit with bail granted in September of last year.
Detention from May 2008 to October 2009
I start with the period from May 2008 to October 2009; the significance of October 2009 will become apparent. The historical position is that forced returns to Iraq had ceased by the time the invasion of that country began. In June 2003 a Minister told Parliament that consideration of asylum claims from Iraqi nationals had resumed and that a returns programme was being developed; it initially involved voluntary returns, but enforced returns would start later in the year. They would be effected by the most appropriate route. It appears from a Government press release that a returns agreement had been made with Iraq by February of 2004, but a witness statement of Mr Declan O'Neill of UKBA dated 22 November 2011 (prepared for the purposes of the appeal to the Court of Appeal in HM (Iraq) but included in the trial bundles in this case) refers to a memorandum of understanding between the two Governments of January 2005. It appears that there had been both enforced and voluntary returns from 2004 onwards, but only to the Kurdish region and only of people originating in the three provinces controlled by the Kurdish Regional Government. Enforced returns to Baghdad did not take place until October 2009, at the end of the period I am currently considering. The reason for this was, according to the witness statement of Mr O'Neill and a witness statement of Miss Honeyman on behalf of the Secretary of State, the lack of British operational staff in Baghdad to cope with any contingencies and to protect the escorts. A difficulty in returning ethnic Kurds to Baghdad (and I remind myself that claimant was a half-ethnic Kurd) seems also to have been perceived.
Events leading up to and surrounding the first enforced return charter flight since the war, which occurred on 15 October 2009, were the subject of judicial review proceedings heard by Langstaff J in February 2010 in R (on the application of A (Iraq)) v Secretary of State for the Home Department [2010] EWHC 625 (Admin). Langstaff J heard oral evidence and made the following findings:
"36. I turn then to the events which led up to the flight to Baghdad. The background began with a Memorandum Of Understanding signed between the UK and Iraqi governments in January 2005. Under that Memorandum, charter flights containing deportees began, and have continued, to the KRG. They had not, however, taken place to Baghdad prior to October 2009 as far as involuntary deportees were concerned. It is plain to me that the process in arranging for the flight of the 15th. was a long and slow one. Mr Pearce-Higginson, who was the senior civil servant in the Foreign and Commonwealth office who had the responsibility for making the arrangements, told me that he went to Baghdad in March 2009. He there engaged in a meeting which was one and a half hours in length, of which no notes were made (or if they were ever made, they did not survive). That meeting began to pave the way for the flight which was later to occur. However, there was reluctance in Iraq to aspects of the proposed flight. These were elucidated in an e mail of 5 May 2009 (see bundle D6A). In summary it described reluctance to see an increase in returns from Iraqi nationals from the UK to Iraq. The detail of it showed that at that stage proposals were made, intended both to start opening the way for returning Arab Iraqis to Iraq to Baghdad, and to follow up the request by the Kurdish Prime Minister and others that some charter flights returning deportees to the KRG should be rooted through Baghdad.
37. Mr Pearce-Higginson told me that on 31 August he flew again to Baghdad. On arrival at the airport he met and spoke to the Colonel who was there in charge of immigration through Baghdad international airport. That official expressed resistance to returns which [were] made using EUL letters, that is documentation short of a passport, and assurances were given that any "case" the Iraqi immigration officials were not happy with would be returned to the UK at the expense of the United Kingdom government.
38. The e mail of 1 September, see D7, records the result of an internal meeting in the FCO which gave as the criteria for inclusion in the flight:
'Single adult males preferably with ties to Baghdad or close by.'
39. Some spaces were reserved for "CCD cases", that is foreign national prisoners. As to those, Mr Pearce Higginson had discussed such cases in principle with the Ministry of the Interior in Baghdad. He had stressed that the numbers of such cases would be low. He was not pressed for further details and did not offer any. He explained to me, and I accept, that as far as the Foreign and Commonwealth Office is concerned, a former prisoner who has served his sentence is free from any criminal restriction on his liberty, and whether he reveals the details of any offence for which he has served his sentence is a matter between him and anyone who chooses to ask. It is not a matter, as far as he is concerned, which the Foreign and Commonwealth Office make any point about. As a matter therefore of principle, such details are not normally supplied.
40. If it be relevant therefore, there seems to me to be little, if any, restriction on the claimant's return arising out of the fact of his criminal convictions.
41. The criteria for inclusion in the flight were set out by RESCU, the internal department responsible within the Borders Agency for returns and enforcement. It read:
'Selection criteria: Iraqi males aged 18 and over, single, FAS appeal rights exhausted, reporting or in detention, subjects must originate from central or southern Iraq.'
42. Then in bold and in large print:
'CANDIDATES FOR THIS INITIAL CHARTER FLIGHT ARE RESTRICTED TO ETHNIC ARAB IRAQIS FROM CENTRAL OR SOUTHERN IRAQ. KURDISH FROM OUTSIDE OF THE KRG, IE FROM KIRKUK, MOSUL OR MAHKMUR SHOULD BE EXCLUDED.'
43. On 24 September, however, those criteria were widened. It appeared that it was proving difficult to find enough people who filled those criteria to occupy the seats on the charter flight. It was as a result of that widening of the criteria that the claimant, who otherwise would not have fitted them, became eligible for inclusion and was included on the flight. At C, between pages 51 and 55 are a number of e mails which record the changes taking place very shortly before the flight took off. I shall summarise the effect of them. A list of potential passengers had been supplied on the 30 September through the embassy in Baghdad to the Iraqi authorities. It was not a final list. The authorities in Iraq at the Ministry of Interior had apparently not received that list by the end or towards the end of the second week of October. In addition, one problem referred to in those e mails was that the Colonel in charge of immigration at Baghdad airport was refusing to accept citizens who were returning without having Iraqi documents, ie on EUL letters.
44. The possibility of problems at the airport was referred to, and on 12 October the final list was demanded by the Iraqi authorities as a matter of some urgency. The Ministry of Interior was on 12 October referring to a 'little obstacle' in terms of the documentation that had to be supplied with each of the deportees. The list was sent. The response was, 'We will do our best'.”
Mr O'Neill gives the following further information:
"UKBA operated its first charter flight into Baghdad just 15 days after the arrival of our Migration Delivery Officer (MDO) on 1 October 2009. Although prior to the 15 October 2009 charter flight, there had been some discussions between staff from the British Embassy in Baghdad and Iraqi officials, it is fair to say that a comprehensive working relationship had not been developed in advance of the flight which probably contributed to the difficulties which arose in terms of 34 individuals being returned back to the UK. The Iraqi authorities had been consulted on accepting the charter flight, but the processes followed prior to its arrival, specifically adequate pre-clearance with Iraqi officials prior to removal of these returnees, was were not followed through. Following the 15 October 2009 charter flight, MDO Baghdad took steps to develop a strong working relationship with key contacts in the relevant Iraqi Ministries. This involved ensuring that the Iraqis were satisfied that our procedures when undertaking enforcement operations were sound, identifying areas where it was possible to cooperate, and look at alternative methods of working. Prior to charters, or removal by scheduled flight, UKBA provides the Iraqi authorities with a list of those whom we wish to return on the flight, and consult with them at all stages."
Mr Richards says on the basis of this information that as of May 2008, when the claimant's immigration detention began, there was no sufficient prospect and, indeed, no prospect at all of return within any foreseeable period. He summarised that the highest the Secretary of State could put the prospect of returning the claimant at that time in the colloquial phrase "stuff happens". In other words, there might be an unforeseeable improvement in the conditions affecting the possibility of enforced return, but only Mr Micawber could, in May 2008, have envisaged a prospect of returning the claimant.
Another matter relied on by Mr Richards was this: while the notice of the decision to detain the claimant gave the likelihood of his absconding as a reason for his detention and said nothing about the prospects of returning him, that matter was considered in internal detention reviews. Early reviews merely said that removal could be arranged within a reasonable timescale, subject to the claimant's appeal and the obtaining of travel documents, without giving any further reasons for that view.
A review conducted on 5 December 2008 said, under the heading of "Likelihood of Removal within a Reasonable Timescale (outline details of barriers to removal including availability, travel documents and likely timing to removal these)":
"All appeal rights have been exhausted and I will be referring this case to RESCU as Mr Mahmoud originates from Makhmoor within the KRG".
That was erroneous: Makhmoor is not within the KRG, although the claimant does originate there.
That incorrect statement about the claimant's origin within the KRG was repeated in all subsequent reviews until 23 September 2009 when it was said, under the same heading as I have read before:
"The High Court review (Filter) sought on 17 June 2009 was refused on 1 July 2009 and appeal rights became exhausted on 13 July 2009. Because Mr Mahmoud is from Makhmoor, which falls (just) outside the KRG, his removal is not imminent, unless he gives other addresses inside the KRG, RESCU will not accept him.
Proposal: based on the presumption to release, I have considered whether to continue the detention of this detainee. In light of their risk of further offending and the harm that may cause, as well as their likelihood of absconding I consider these additional factors outweigh the presumption to release. I therefore authorise their detention for further 28 days.
Mr Mahmoud has been convicted of serious criminal offences and while it is appreciated he has been punished for this offence, it is submitted that his continued detention is conducive to the public good whilst deportation action is pursued. He is not suitable for release under the contact management scheme and given his convictions, driving whilst disqualified, driving without a licence, failure to stop, failure to surrender to custody ... he remains a risk of harm to the public...
Mr Mahmoud has demonstrated a breach of United Kingdom laws in the past..."
The signatory of that review, Ms Grace Adeyemi, has given a witness statement in these proceedings. In that statement, she said:
"Throughout this period, the Claimant was detained due to the series of crimes committed by him strongly outweighing any presumption to liberty at this time to protect the public, especially in the light of his high risk of absconding if released. It was considered that the claimant could be deported within a reasonable period (taking into account the severity of his offending and the other factors) because he could at any time choose to return voluntarily and because it was wrongly thought that he could be returned to the KRG. In any case, the SSHD hoped and expected that progress would be made in securing enforced returns to the rest of Iraq, and so would have detained the Claimant even had this mistake not been made."
Detention from October 2009 to June 2010
I turn to the period between October 2009 and June 2010. I set out Langstaff J's relevant findings of fact, about which there is no dispute, in relation to the deportation flight of October 2009. These were:
"47. Summarising the effect of the evidence before me, the plane arrived around 10 o'clock. It was met by the Colonel at the airport. He was antagonistic from the outset. What appears to have caused this antagonism was firstly his difficulty in reconciling the number of returnees on the flight with the details of those he had been told internally would be arriving. That may be a consequence of the late delivery of the passenger manifest. It may be a problem in communication within the Iraqi government. He then noticed, having asked that all the deportees be taken off the plane, that a number appeared to him to be ethnic Kurds. He asked why it was that he had been sent ethnic Kurds. It was plain that he was seeking to object to them on that basis. The 44 deportees were taken to the airport building by bus and about half an hour later were returned to the plane, save nine who had been kept in the airport building. Of the 35 who remained, the Colonel made the point that they did not have proper documentation. That was not true of all - and of those who remained in the airport building, accepted by the Iraqi government through the Colonel, five had full documentation, but two did not. Of those who were rejected by him, one or two had full documentation. He addressed the deportees in Arabic, I accept from the claimant, although I have to say that the claimant's recollection was suspect (he had thought when he first gave evidence that this address had taken place without the deportees ever having moved to the airport building and back, and only later, when his memory no doubt was prompted by the witness statements of others, accepted that he had indeed first been to the airport building). The Colonel indicated that he thought that Kurds would be at physical risk in Baghdad, and he was not himself prepared to accept the responsibility for the consequences if that risk materialised. A process of negotiation began, in the course of which the Colonel was persuaded by one of the deportees to accept him too. The others, largely Kurds but not entirely so, were re-embarked...
50. From this history emerge these reasons for refusal. First and generally was reluctance in some quarters in Iraq to accept any returnees; Secondly, an insistence upon full documentation and a distrust of EUL letters; thirdly - and significantly, because in my view this featured persistently throughout the evidence which I have heard - a dislike of acceptance at Baghdad of those who were of Kurdish ethnicity."
Mr Richards paints the flight as a failure. Mr Draper presents it as a partial success, pointing out that for the first time a charter flight landed and, moreover, some deportees were successfully returned to Iraq. Clearly, however, the experience of that flight had made concrete a difficulty which, as I have said, I find was probably anticipated in view of the original intention being not to put people of Kurdish ethnicity on the flight: those people were not accepted by the Baghdad authorities. As to what happened next, Langstaff J made the following findings in his judgment of February 2010:
"51. The consequence of what had happened was naturally that upon what is called 'wash up', the defendant sought to learn the lessons for the future as to what had occurred.
52. In an e mail of 5 November 2009, see C56, it was reported by the embassy in Baghdad that the General from the Ministry of the Interior with whom contact had been made prior to the flight, had said that it was regrettable that he and his staff had not been present at the airport to meet the returns charter. That is something which the embassy had been assured would happen to ensure that things went smoothly, and it did not. It appears from that e-mail that there was some welcome discussion about the possibility that a representative of the Ministry of the Interior from Iraq would subsequently come to the United Kingdom to gain a better understanding of the process which the Defendant uses to determine who should be returned and in what circumstances.
53. At the 'wash up', matters were summarised in these terms, see D27:
'A critical review of the operation has established lessons learnt and next steps.'
They are set out in some detail:
'To mitigate the risk of non cooperation with future flights ... '
Then there follows a list of five matters:
'(i) UKBA will offer a visit programme for key Iraqi officials in advance of the next flight to secure buy-in to the charter.'
'(ii) FCO is seeking to obtain a letter from the Iraqi PM's office detailing support from the UK's enforced returns programme.'
I interpose to say in evidence it was accepted that is an overstatement. They had not by then and have not yet sought such a letter.
'(iii) the FCO will review, engage and update on actions with key Iraqi personnel in the lead up to the next flight.'
'(iv) We are engaging with EU partners to identify and learn from their returns processes to Iraq.'
I interpose, the Danes in particular have had a number of successful charters of detainees to Iraq.
'(v) a ministerial visit may be proposed to reiterate the level of importance the UK places on enforced returns to Iraq.'
54. The visit program which was to be offered to those from Iraq was the subject of a diplomatic note issued on 15 November 2009 setting out a vision, see C58 and 59. The note expresses the hope that:
'The government of Iraq can identify some suitable delegates for such a visit, and would be happy to explore dates for a possible visit at the earliest opportunity.'
55. I was told the identification of such delegates is ongoing. One so as far as has been identified from one of the ministries, but not the other three or more anticipated delegates. No date is yet set for the visit. It cannot be before the Iraqi election which takes place in early March this year, and this has given rise to the comment by Ms Williams, who appears for the claimant, that the first step of the five identified on the wash up has not yet been taken, let alone the later ones."
Langstaff J commented:
"60. Critical in my determination has to be a view as to the likely timescale for the next charter flight of involuntary returnees to Baghdad. Here the history would suggest it is likely to be some considerable time away, because it has taken some four years since the Memorandum Of Understanding, very nearly five, before the first such flight under it to Baghdad, and that had to be preceded by meetings in March, July and September. Since October there has been no further attempt to engage in that sort of discussion.
61. Against that background, in the circumstances which I have heard evidence about, I have to form a view as to whether the defendant's undoubted desire on good grounds to deport the claimant will come to fruition. It is unlikely, in my view, to happen soon and it is not contended that it will. It is unlikely, in my view, to occur in the medium term, and is not contended directly that it will. When asked to provide a timescale, the defendant merely says "within a reasonable time". It is in many respects speculative, but I have to form the best assessment I can of the broad timescale before there will be any flight again to Baghdad, and more importantly in this case, whether this claimant is likely to be a passenger on that flight. Since the feature which most told against the 34 deportees being accepted in Iraq was Kurdish ethnicity, and a second feature, difficulty with documentation, this would argue that the claimant is unlikely to be an early passenger. However, the priority which the government places upon returning foreign national prisoners tells in the other direction, as does the fact that the claimant himself was high on the list for return as demonstrated by the fact that he was included in the flight in October.
62. On this evidence, taken as a whole, I cannot, it seems to me, have any reasonable assurance that the flight would at the earliest occur before the end of this calendar year. Even that is uncertain, and the probable date is likely to be later. The length of the detention, if it extends for that period, is thus uncertain and very close to arbitrary."
The claimant in that case was, like the present claimant, an Iraqi of Kurdish ethnicity, not from the KRG. He had been sentenced to 2 years' imprisonment after a trial for indecent assault. His immigration detention had, like Mr Mahmoud's, commenced in May 2008. Langstaff J concluded:
"Whilst I do [not] assert that in no circumstances could detention of 21 months and continuing be justified, I hold on the particular facts of this particular case that this claimant's detention would, if it were to continue, be unlawful. I say nothing about whether his detention thus far has or has not been lawful. I say nothing, I emphasise, about the position, whatever it may be, of others who may have been on the flight to Iraq and who have now returned. This decision is necessarily specific to this claimant's case. But I reach the conclusion upon the basis that the detention is already long and is likely to become very long, upon my best estimate, imperfect though it is, of when it may be that forcible return will be available."
Langstaff J's prognosis was, as has been seen, a pessimistic one. In the result it turned out to be overly pessimistic. Writing in November 2011, Mr O'Neill commented on the events of 15 October in paragraph 17 of his statement, which I have already set out. He also continued the story beyond October 2009 in the following terms:
"11. Following the charter flight on 15 October 2009, two formal invitations to visit the United Kingdom were issued by SSHD to Iraqi officials of their Ministry of the Interior. The first invited the Iraqis to send a High Level cross-government (Ministerial) delegation to meet UKBA officials and to witness SSHD's asylum processes, from an application through to determination, with an overview on legal safeguards. It was envisaged that the emphasis would be on thorough removal practice, which was the area in which we were seeking cooperation with the Iraqi authorities. The second invited Iraqi immigration officials to visit London and work with UKBA to identify Iraqi citizens for removal.
12. In the event and in response to the second invitation, a delegation of four Iraqi immigration officials arrived in London on 30 May 2010. During this exercise the delegates visited detention centres and interviewed individuals whom UKBA believed were Iraqi, in order to clear them for return to Iraq. The delegation was also asked to take a view on the likelihood of a person being Iraqi on the basis of the evidence and documents available, i.e. any available documentary evidence and/or bio-data supporting UKBA's assertion that the person was Iraqi.
13. The Iraqi delegation spent 3 days (between 1-3 June 2010) working with UKBA colleagues, and during this period they conducted interviews in the following Immigration removal centres (IRCs): Colnbrook, Harmondsworth, Brook and Tinsley House. As a result of those interviews, 16 individuals were removed following the first pre clearance exercise. Two left voluntarily via the Assisted Voluntary Return (AVR) program, 4 were removed on scheduled flights to Baghdad (Royal Jordanian via Amman) and 10 were removed on charter flights. The ability to pre-clear returnees reduced the chances of these persons being refused entry upon arrival. This was a benefit resulting from obtaining pre-clearance. The United Kingdom also participated in a number of repatriation charters shortly after the visit, resulting in the return of 53 Iraqi citizens (11 on a Frontex charter flight into Baghdad led by the Swedish authorities on 9 June 2010, and a further 42 on a United Kingdom only charter flight on 16 June 2010). These individuals had been pre-cleared by the Iraqi delegation, which also had the benefit of minimising time in detention".
He went on to refer to a similar pre-clearance visit in August 2010, leading to five charter flight removals in September/October 2010 and a pre-clearance visit in June 2011, again leading to a charter flight (though, in circumstances I shall go on to discuss, that proposed return flight was restrained by an injunction granted by Bean J).
That is about to bring me on to consideration of the next obstacle to deportation, but I must first record that the claimant was one of those who was pre-cleared in June 2010 and removal directions were given for his enforced return on a charter flight due to take off on 16 June. Mr Richards accepts that the June pre-clearance gave, for a brief time, a prospect of the claimant's removal, but he points out that there is no evidence as to when the pre-clearance exercise became a firm prospect. Apart from that concession as to a period of 10 days in June 2010, he does not regard the prospects of the claimant's removal subsequent to the October 2009 flight as any better than they were prior to October 2009.
The Period from June 2010 to date
I have mentioned that the claimant was due to be removed on a flight on 16 June 2010, to which Mr O'Neil referred. But his solicitors obtained evidence of alleged mistreatment within Iraq of returnees on the earlier flight of 9 June. That prompted them to make, first, an application to the Secretary of State to revoke the claimant's deportation order and cancel the removal directions on account of the mistreatment as well as on other grounds and, secondly, an application for judicial review of the decision to deport the claimant to Iraq. That is not the same judicial review claim as I am dealing with.
On the day on which the flight was due to take place, Blake J granted an interlocutory injunction on the papers, restraining the claimant's removal. His reasons were:
"1. The finding of the panel of the AIT in 2009 at para 8 is clearly an inadequate response to Article 15(c) protection. There is a country guidance case where determination is pending before the UTIAC.
2. Removal may be premature in the absence of a response to the application to revoke a deportation order and one that addresses the claims arising from the events of 9 June 2009."
Point one in those reasons refers to the country guidance case of HM (Iraq), in which one of the issues was Article 15(c) of the EU Qualification Directive (Directive 2004/83). HM (Iraq) had been heard by the Immigration and Asylum Chamber of the Upper Tribunal presided over by Blake J a few days earlier. The tribunal gave their decision ([2010] UKUT 331 (IAC)) on 22 September 2010 in which they dealt also with the evidence regarding 9 June flight, the issue of mistreatment having come to the attention of the tribunal after the hearing. The tribunal were provided with various written materials. They concluded that the allegations of mistreatment following that flight were unsubstantiated. However, their decision as a whole was set aside by the Court of Appeal 14 months later on 30 November 2011 ([2011] EWCA Civ 1536), for procedural reasons which it is unnecessary to go into. It has not yet been re-decided.
Mr Richards first submitted that the evidence of mistreatment showed that it would be a breach of Article 3 of the ECHR for the Secretary of State to remove the claimant, and that that was a further obstacle to removal within a reasonable time. When I pointed out to him that that was tantamount to inviting me to re-decide that part of HM Iraq, which I suggested I was not equipped to do, particularly in circumstances where it is to be re-determined by the Upper Tribunal, he submitted instead that the Secretary of State could not rationally remove the claimant while those allegations remained unresolved, and that that was an obstacle to removal within a reasonable time.
In July 2010 the first judicial review proceedings, to which I have referred, were withdrawn upon the Secretary of State's agreeing to take a decision on the claimant's application for revocation of his deportation order. The Secretary of State did not make her decision (in which she in the result declined to revoke the deportation order) until 6 April 2011. Mr Richards accepts that it was reasonable for her to have awaited the decision in HM (Iraq), but says it was inexcusable that she delayed a further six months after that decision was given.
The present judicial review claim was brought on 24 September 2010 accompanied by an urgent application for bail. On 30 September Cranston J refused bail after a hearing, but directed that it should be reconsidered along with the issue of permission to bring judicial review. On 20 October, Sales J refused permission and bail on the papers. In summary, his reasoning, insofar as relevant to the issues before me, was that the claimant had been cleared for reception by the Iraq authorities, deportation flights were taking place on a regular basis, and HM (Iraq), which had been recently promulgated (and, of course, not by then set aside) did not indicate that it was unsafe to remove the claimant. The fact that his deportation was under reconsideration did not mean that there was no prospect of his removal. His appeals against deportation had failed in the past, indicating that deportation remained appropriate in his case. Given this, it was not arguable that the mere length of his detention so far rendered further detention unlawful.
Nevertheless, the Secretary of State agreed with the claimant's solicitors at a point in late 2010 not to deport the claimant pending the outcome of these judicial review proceedings. At an oral renewal of the permission application on 24 February 2011, Ouseley J, in a considered judgment, granted permission in respect of some of the periods of detention, but refused it in respect of others. In April, on a paper application to the Court of Appeal, Elias LJ expanded the permission to cover all the periods of detention. I interpose that all of this happened before HM (Iraq) was set aside by the Court of Appeal.
I return to the Secretary of State's decision not to revoke the deportation order, given in April 2011. The claimant promptly appealed to the First-tier Tribunal. The appeal was heard in August 2011 and the decision issued on 12 October. It allowed the claimant's appeal to the limited extent of remitting the case to the Secretary of State to consider the possible impact of section 55 of the Borders Citizenship and Immigration Act 2009 (welfare of children), which had not been dealt with in the decision. The claimant then appealed to the Upper Tribunal on the grounds that the First-tier Tribunal had failed to consider the claimant's grounds of appeal against what had been dealt with in the Secretary of State's decision. Permission to appeal to the Upper Tribunal has been granted but the Upper Tribunal has not yet heard the appeal. The Upper Tribunal has determined that it will, if possible, determine the claimant's appeal against the Secretary of State's decision itself. A tribunal judge gave certain directions in December 2011 and in January of this year. The claimant's solicitors wrote to the tribunal in February of this year, apologising for what they described as great delay in dealing with these, but it seems to me that delay on their part was a matter of a few weeks only. The solicitors proposed a timetable involving exchanges of skeleton arguments to be completed by mid-April and sought an oral hearing in the Upper Tribunal. It seems to me that that hearing could now take place relatively soon but for the need to await the re-decision of HM (Iraq).
The Claimant's Submissions
I have already summarised Mr Richards's submissions regarding the period from May 2008 to June 2010. Regarding the period from June/September 2010, Mr Richards submitted that there was no prospect of removal because of the unresolved issue of mistreatment of returnees, evidenced by the allegations regarding the 9 June flight. He said I could not rely on HM (Iraq) as resolving the issue because the decision had been set aside; the issue remained to this day an obstacle to the claimant's lawful removal. He submitted that as regards the period after the release of the HM (Iraq) decision in September 2010, detention became unlawful for three further reasons: first, the Secretary of State's delay in deciding the application for revocation of the deportation order after the HM (Iraq) decision was released; secondly, the claimant's appeal against that refusal, which continues to make removal impossible, not having been certified as clearly unfounded; and, thirdly, the overall length of the claimant's detention since May 2008. He points to the frustration of the claimant's desire to have access to his son and the claimant's self-harm and attempted suicide in prison (which seem to have occurred in early 2008). He said that there was a limited risk of the claimant absconding, or even no risk; he cited the claimant's family ties and submitted that he had complied with immigration law since making the immigration claim, that his offending was predominantly for minor offences and was behind him and that he has complied since last September with his bail conditions. I shall refer to other submissions of Mr Richards and Mr Draper as necessary in giving my reasons for my decision, which I now proceed to do.
My Assessment
I remind myself that the issue is whether there has been and is a reasonable prospect of the claimant's return within a reasonable period, bearing in mind that the longer the period of past detention, the harder it becomes to justify a period of prospective future detention as reasonable. I start in May 2008. I have outlined Mr Richards's submission already. In response, Mr Draper submitted that it was not necessary in order to satisfy Hardial Singh principles for the Secretary of State to be able to state a date upon which return would occur. The Government was working towards clearing the obstacles to removal following the ending of hostilities and it was reasonably foreseeable, in Mr Draper's submission, that the point would be reached at which removal could be effected within a timescale that was reasonable given the claimant's circumstances. The period for which the claimant was likely to be detained, although of unpredictable duration, could not be said to be a priori an unreasonable one in view of the claimant's history and the considerable risk that he would abscond if released at the end of his criminal sentence.
He also points out that almost continuously until July 2009 the claimant was pursuing unsuccessful appeals against deportation and suggests that detention during the period of those appeals was not unreasonable. That point does not of course touch the original decision to detain.
Looking first at the decision to detain, I have found this a somewhat troubling question in view of the fact that negotiations with the Iraqi authorities and the provision by the UK of adequate reception staff on the ground at Baghdad did not reach the point at which a return flight was possible until October 2009, 17 months after the initial immigration detention, and did not reach the point at which people of Kurdish ethnicity like the claimant could be deported to Baghdad until June 2010, just over two years later.
I also note at this point that two mistaken beliefs were entertained in the first period of detention that I am considering. They were, first, that the claimant could be returned to the KRG and, secondly, that he could return voluntarily. That was shown in hindsight to be, at least possibly, mistaken in view of Baghdad's rejection of returnees of Kurdish ethnicity in October 2009.
I do not agree with Mr Draper that the existence of the claimant's appeals makes a difference to the early period. They can do so where the appeal is the only obstacle to removal, especially where the appeal is unmeritorious. But in the present case there were other obstacles which were not of the claimant's making such that his return could not have been enforced before July 2009 even were he not appealing. In these circumstances I do not think the existence of those appeals is an answer to any Hardial Singh difficulty: the appeals were not the only reason why he was not being deported (see paragraph 121 of Lumba).
However, going back to the initial decision to detain him, I remind myself that in May 2008 the claimant presented as a man on the point of release from a criminal sentence imposed for a serious offence which had seriously endangered the public, as Judge Barrett QC's sentencing remarks emphasised. The Secretary of State considered that it was in the public interest that he should be deported and that is a decision twice upheld, the second time in emphatic terms, by the IAT. In my judgment there was a serious prospect, approaching a certainty that, if released from the criminal sentence, he would disappear and deportation would be frustrated. I do not regard his previous co-operation with the IND as a weighty factor; his criminal record and breaches of bail and the fact that he would henceforth be subject to a deportation order changed the picture. Thirdly, the Government was working and had for some time been working, albeit slowly, towards reaching a position in which there could be enforced returns. This was of course not within its sole control but required the co-operation of the Iraqi authorities. For all these reasons taken together, I consider that there was, in May 2008, a prospect of effecting the claimant's return within a period which was reasonable given the other factors I have mentioned. I have not repeated the detail of the steps that have been taken between Britain and Iraq, as recorded by Langstaff J, and in the witness statements I have referred to, but I have borne them in mind. I do not consider that the decision initially to put the claimant into detention was tainted by the errors I have mentioned about his KRG origin. If I am wrong on that, I consider that he would have been detained, even if that error had not been made at the outset (assuming, contrary to my actual conclusion, that it was). The decision to put him in detention was, in my judgment, lawful but if I am wrong about that his entitlement to damages would be to a nominal amount.
From December 2008 through to August 2009, the detention reviews show, as I have indicated, that the decision to maintain the claimant's detention was tainted by the erroneous belief that he could be returned to the Kurdish region. That, in my judgment, made the detention in that period unlawful, but I consider that it would have been maintained without the error, as Ms Adeyemi asserts. I hold that he is entitled to nominal damages in respect of that period. I do not consider that, as Mr Richards submitted, the unlawfulness of maintaining his detention in that period colours my assessment of the subsequent detention given that he would have been lawfully detained if the error had not been made. I respectfully share the view of Ouseley J in his decision of February last year that detention can become lawful again once tainted factors have ceased to apply. The error was corrected in the September 2009 detention review which I have already read.
As regards the prospect of voluntary return, I agree with Mr Richards that that was only very briefly entertained by the claimant as a possibility and in fact, given that the claimant is of half-Kurdish ethnicity, it seems likely that his voluntary return would not have been accepted in Baghdad prior to 2010. I do not find that the prospect of voluntary return assists the Secretary of State in respect of this period.
In my judgment, detention has been lawful from September 2009 onwards. By that September prospects of removal had greatly improved. Although the October 2009 experience revealed an additional obstacle to the deportation of ethnic Kurds to Baghdad -- one which I have already said I think may have been anticipated -- there was a prospect of that obstacle being removed within a future period which, in my judgment, could be foreseen to be reasonable. In reaching that conclusion I rely in particular on the evidence of Mr O'Neil, first at paragraph 17 about the lessons that were learnt from the October 2009 experience and then about the steps that were being put in place, a topic of course also covered by Langstaff J.
I have borne in mind the conclusion reached by Langstaff J in February 2010. I accept of course that I cannot say that the June 2010 clearance exercise was foreseeable simply because it happened; but I see nothing in the evidence that suggests that it happened as a result of any form of unexpected or improbable breakthrough. I bear that in mind in approaching the findings recorded by Langstaff J and the evidence in paragraphs 11-13 of Mr O'Neill's witness statement, not all of which could have been available to Langstaff J in February 2010. I must make my own decision, which is that clearance of ethnic Kurds for removal was foreseeable within a period shorter than Langstaff J anticipated, not necessarily by June, but within the calendar year 2010. Bearing in mind what I have said about the claimant's history I consider that his continued detention for that sort of period would be for a reasonable period.
The next obstacle was the fear of mistreatment within Iraq arising out of the allegations about the 9 June 2010 flight. As I have already observed, I am not in a position to resolve the issue of whether there was a practice of mistreatment of returnees. Mr Richards suggested I should approach the matter on the alternative basis that the obstacle was that it would be perverse of the Secretary of State to make enforced returns before the doubt over proper treatment was resolved.
I see the issue slightly differently. The issue I have to decide is whether there was a prospect of return within a reasonable period. It was the case in June 2010 that the issue of mistreatment was to be ruled upon by the Upper Tribunal within a short period. It may not have been possible to make enforced returns within that period -- I note that Collins J restrained the return of an individual pending the Upper Tribunal's decision in an order made in early September -- but it was nevertheless foreseeable that the issue of mistreatment would be authoritatively resolved by the Tribunal, as the terms of Collins J's order indicate.
There is the difficulty that the Upper Tribunal was set upon deciding the case in a fashion which the Court of Appeal later found to be procedurally objectionable. The issue, as I have already mentioned, has still not been ruled upon again following the setting aside of the Upper Tribunal's decision. However, I have to decide what was foreseeable at the time and, in my judgment, the Secretary of State was entitled to assume in June 2010 that the issue would be resolved by the Upper Tribunal's decision. In my judgment, continued detention of the claimant, pending the Upper Tribunal's decision, amounted to continued detention for a reasonable period in all the circumstances.
After September 2010, it seems to me that the Secretary of State could, once the decision had been promulgated, lawfully continue the claimant's detention in reliance upon it, subject to what I go on to say about other obstacles in this case. One such obstacle to early deportation arose from the Secretary of State's undertaking in July 2010 to reconsider the claimant's deportation order. Mr Richards does not complain of the giving of that undertaking, but complains of the Secretary of State's delay in giving a fresh decision between the delivery of the Upper Tribunal's decision and April of 2011. Mr Draper relies in this context on the holding in R (Saleh) v Secretary of State for the Home Department [2012] EWHC 329 (Admin), in which Dobbs J said:
"Moreover, the defendant has drawn the court's attention to the case of R (on the application of Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549, a decision of the Court of Appeal Civil Division, where at paragraph 12 the court points out that the Hardial Singh principles emanate from basic administrative law, and that it is not enough in retrospect to find one part of the process took longer than it should have done, but that the claimant has to show that it was, in effect, so bad as to amount to illegality. That is what the courts have to be looking at. The claimant has failed to show that."
He also relies on the existence of a yet further obstacle, namely the Secretary of State's agreement in October 2010 that she would not deport the claimant pending the conclusion of this judicial review. He says that that was an obstacle desired by the claimant and therefore the period of continued detention to which it gave rise was reasonable. I agree with Mr Richards that that is not a complete answer to his complaint of delay in reconsidering the deportation order. There was, implicit in the decision to reconsider, the possibility that the Secretary of State might revoke the deportation order, in which case detention would end and the judicial review would become academic. I have considered paragraphs 33 to 41 of the witness statement of Miss Adeyemi, in which she accounts for the delay. There was some delay, a period of approximately five weeks, attributable to the claimant's case file being with the judicial review team as a result of the present judicial review proceedings. But, given that a decision refusing to revoke the deportation had been drafted on 7 October 2010 and the file was back with the asylum team by 26 November 2010, I do consider that delay until April 2011 was, in terms of good administration, unjustifiable. I do not know why a further draft of the decision was prepared on 13 January 2011. I think there is force in the point that the claimant was entitled to know the outcome of the review earlier than he did.
However, given that from October 2010 onwards a refusal decision was in prospect, and given the undertaking not to deport the claimant pending the conclusion of the judicial review, the delay in issuing the review decision did not in fact prolong the claimant's detention. That, coupled with the fact that the decision was from an early stage (if not always) likely to be one of refusal to revoke, may well explain why its finalisation was not given higher priority. At that point in time there was no other foreseeable obstacle to deportation apart from the undertaking not to deport pending the judicial review. The issue of mistreatment within Iraq appeared to have been disposed of by HM (Iraq). There was a prospect, therefore, of removal at the conclusion of this judicial review, and delay until the conclusion of this judicial review was something desired by the claimant. I also agree with Mr Draper that the delay in issuing the review decision, though legitimately a matter of some criticism, was not so bad as to amount to illegality, as Dobbs J put it. From June 2010 to April 2011 the foreseeable future period of the claimant's detention was in my judgment a reasonable one.
The next obstacle, which arose in April 2011, was the claimant's appeal to the First Tier Tribunal against the refusal to revoke the deportation order. I have recited the history of that. The Secretary of State made an acknowledged error in the decision of April 2011 in failing to consider section 55 of the Borders Act. But for that, the First-tier Tribunal would presumably have decided the appeal in October of last year. There might have been a further appeal to the Upper Tribunal; that could only a matter of speculation. Given the history of the claimant's previous appeals, it was at least a foreseeable possibility that the refusal to revoke deportation would be upheld. When the error in failing to consider section 55 was acknowledged before the First-tier Tribunal, it was, it seems to me, a matter of judgment whether the better course was to remit so that, if the Secretary of State's decision remained adverse, the claimant could appeal against a decision which took account of all relevant factors. It would, I think, be excessive to say that the overlooking of section 55 in the decision letter of itself made a further period of detention unreasonable and Mr Richards did not so submit. His focus was more on the delay in issuing the letter, delaying the start of the appeal which the claimant brought. I do not think it is possible to conclude that either the error in overlooking section 55 in April 2011 or the course which the First-tier Tribunal later decided to take caused the prospective period of further detention to become unreasonable, particularly given the fact that deportation could not occur prior to the conclusion of this judicial review.
It does not seem to me to be possible to find that any of the likely prospective periods of future detention to which the stance taken by the Secretary of State in the First-tier Tribunal and the decisions of the First-tier and Upper Tribunals in the course of last year gave rise were going to be unreasonable periods. Until the setting aside of the HM (Iraq) decision in November 2011, the only obstacles to the claimant's deportation were litigation that he was himself pursuing. Given the result of previous appeals against deportation, I do not consider his Tribunal appeal to have much merit.
As I have already indicated in considering the initial decision to detain the claimant, I, in common with Ouseley J, view the risk that the claimant would disappear if the detention order were quashed as very high. Clearly, he does not wish to return to Iraq. That is understandable from his perspective, but the public interest is that he should do so. The temptation to avoid return to Iraq by disappearing is bound to be very strong and I do not think that his wish to see his young son would deter him from disappearing if the detention order were to be quashed. The fact is that he has never ever seen his son in four years, even though visits by train are possible within the terms of his curfew order. Making arrangements to see the son would increase the risk of his being apprehended in the event that, at the culmination of all the litigation affecting his return, fresh removal directions were made. As I have already said, his earlier co-operation with the IND is, to my mind, a matter of little weight. The deportation order changed things very dramatically.
At the time I gave my oral judgment, I lacked information as to the prognosis for the re-determination of HM (Iraq) by the Upper Tribunal. I accordingly sought submissions from the parties on three matters: the likely timescale for that re-determination; whether the need to await the re-determination was an obstacle to the progress of the claimant’s Tribunal appeal or to enforced returns generally; and (in view of the injunction granted by Bean J in June 2011) whether the issue of alleged mistreatment of returnees resurfaced as an obstacle to deportation at an earlier date than that of the Court of Appeal’s decision in HM (Iraq). The parties have provided some information on these matters as well as drawing my attention to the recent decision of the Court of Appeal in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 and, in Mr Richards’s case, raising one further matter.
The parties agree that the Upper Tribunal re-heard HM (Iraq) between 30 April and 4 May and have given the parties to that appeal until 25 July to make any further written submissions. The Secretary of State says that the decision will be promulgated ‘thereafter’; Mr Richards submits that it will not be until after the long vacation. I anticipate that it will take the Tribunal a certain amount of time to process the evidence and submissions to it (the first HM decision was understandably lengthy), but am confident that they will produce their decision as soon as reasonably possible.
As to the position prior to the Court of Appeal’s decision in HM (Iraq), the Secretary of State relies on SG (Iraq) as holding that, in the absence of clear and coherent evidence contradicting it, the Upper Tribunal’s decision in HM (Iraq) remained authoritative; I agree with Mr Richards that the Secretary of State’s submission appears to imply that that remains the position after its setting aside also. Mr Richards also submits that there is a clear and coherent body of evidence contradicting the decision, namely the evidence that was before the Upper Tribunal.
Mr Richards further relies on a change of policy by the Iraqi authorities, to the effect only returnees holding a current or expired Iraqi passport, or other travel documentation issued by an Iraqi authority, will be accepted; he submits that the claimant does not have such documentation. He has drawn my attention to an e-mail sent by his instructing solicitors to the Treasury Solicitor on 9 July, inviting the Secretary of State to agree that as well as some other matters, to which no reply has been made.
In SG (Iraq) the Court of Appeal noted that different approaches had been taken by different judges of the Administrative Court to applications to stay removals to Iraq while HM (Iraq) was under appeal to the Court of Appeal. Stanley Burnton LJ, with whose judgment the other members of the Court agreed, held (paragraphs 67-71) that a Country Guidance determination of the Upper Tribunal remained authoritative unless and until set aside on appeal or replaced by a subsequent Country Guidance determination; the filing of an application for permission to appeal or the grant of permission to appeal could not, of itself, justify the grant of an injunction staying a removal based on the determination. A stay could be granted as a matter of discretion if the evidence relied upon by a claimant or the appellant in the Country Guidance case either (a) if it was evidence that had been considered by the Upper Tribunal, cast substantial doubt on the reliability of the Tribunal’s findings or (b) if it was new evidence, amounted to a ‘clear and coherent body of evidence that the findings of the Tribunal were in error’.
I am not asked to stay a removal but to determine whether a continued detention order is compatible with the Hardial Singh principles. I have already indicated that I am not in a position to decide the issue of mistreatment myself, and both parties appear to accept that the claimant cannot be removed before the new HM (Iraq) decision is promulgated. I agree with Mr Richards that I cannot take the terms of the previous HM (Iraq) decision as conclusive on the issue of mistreatment within Iraq in view of its setting aside by the Court of Appeal, but I can say that the terms of that decision of an experienced chamber of the Upper Tribunal afford at least a prospect that the new decision will be the same. I respectfully agree with the observation of Langstaff J in SG (Iraq) (quoted by Stanley Burnton LJ at paragraph 12) that there is no reason for thinking that the whole basis of the decision is undermined by the procedural difficulties that arose. The claimant’s own appeal is not formally stayed pending HM (Iraq) and I am unaware of any reason why it cannot proceed to be heard, even if not finally determined, before publication of the HM (Iraq) decision.
I have limited information on whether any enforced returns to Iraq have taken place since the setting aside of HM (Iraq), but this does not matter. The claimant has in progress an appeal to the Tribunal which, it seems to me, cannot be concluded before the new HM decision.
The change of policy on travel documents, referred to by Mr Richards, was touched on in the witness statement of Mr O’Neill of UKBA to which I have already referred. It appears, from his instructing solicitors’ e-mail that I have referred to, that more information is given in subsequent witness statements of Mr O’Neill in the HM (Iraq) case that I have not seen. Unhelpfully, the Secretary of State has not co-operated in establishing the position, but Mr Richards did not rely on this matter at the hearing before me and has not sought now to adduce any further evidence on it or to reopen the argument. The claimant was, as I have said, ‘pre-cleared’ by the visiting Iraqi authorities in June 2010 and I do not possess sufficient material to determine whether his non-possession of an Iraqi-issued passport or travel document is now an obstacle to his removal and/or whether it can be overcome. This is a matter that, if not ruled upon in HM (Iraq), can presumably be ventilated in his appeal to the Upper Tribunal.
I therefore proceed on the basis that the claimant cannot be removed before HM (Iraq) and his own appeal are decided, but that both those decisions ought to be able to be given before the end of this year. There is more than a prospect that the terms of those decisions will not prevent his removal. I have already set out my findings on the considerations militating in favour of his continued detention. I agree with the point made by Sales J (when considering the case on the papers), that the length of past detention cannot automatically make continued detention unreasonable, whilst accepting that the past period of detention has increased by nine months since Sales J spoke and has been followed by a period of approximately eleven months under bail conditions. The length of past detention is in my judgment relevant to assessing legality of prospective future delay, but considerable weight must be given (as I infer Sales J did) to the prospect of achieving deportation within a reasonable further period. The fact that the claimant is currently on bail and not incarcerated is also a factor supporting the reasonableness of any future period of subsistence of the detention order that that may involve. So, I consider, is the fact that the situation which has left the HM (Iraq) obstacle to deportation in place is not one of the Secretary of State's making. It has arisen because an experienced chamber of the Upper Tribunal, faced with a procedural difficulty, took the course that they thought gave the best chance of achieving a decision on a number of important issues with regard to returns to Iraq, but the Court of Appeal disagreed. This is something that happens in litigation.
I am not able to conclude that the evidence of mistreatment relied on by the claimant but rejected by the Upper Tribunal is such as (in Stanley Burnton LJ’s words) to cast substantial doubt on the reliability of their findings. It is a matter of judgment whether it amounted to credible evidence of treatment in violation of the Human Rights Convention; even if I were to examine it and take a different view from them, that would not in my view amount to the sort of substantial doubt that the Court of Appeal contemplated. If it were otherwise, the mere existence of an appeal would rob country guidance decisions of almost all authority, contrary to paragraph 67 of Stanley Burnton LJ’s judgment in SG. I therefore conclude that, until the setting aside of the first HM decision on 30 November 2011, the only obstacle to the claimant’s removal was the litigation that he was pursuing; continuation of the detention order during that period was not unlawful. Since that date the need to await a re-determination of HM (Iraq) has been a fresh obstacle, but it has at all times been foreseeable that the Upper Tribunal would proceed to make the re-determination as speedily as reasonably possible, as they have so far done. I do not therefore consider that the continued existence of the claimant’s detention order has been contrary to the Hardial Singh principles in the period since the Court of Appeal’s decision.