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

The claimant, Mr Malek Hossian Abdollahi, challenges the legality of his detention under the Immigration Act 1971 for 26 months between 18 May 2009 and 15 July 2011, when he was released on bail granted by the First Tier Tribunal. These proceedings were lodged on 10 January 2011. After Walker J refused permission on the papers, the application was renewed. On 5 July 2011, at an oral hearing, King J granted permission “on all grounds”.

In summary, Mr Hawkin, on behalf of the claimant, submitted that the claimant should not have been detained in the first place because at the time of his detention he had a pending asylum claim, his wife and children had been temporarily admitted to the United Kingdom and were in the country pursuing an appeal against the refusal of their claim for asylum. There was thus, he submitted, no prospect of removing the claimant from the United Kingdom within a reasonable period. It was only towards the end of the period of his detention that his appeal rights were exhausted. His appeal against deportation, and his human rights appeal, were dismissed on 4 November 2009, six months after the commencement of his period of immigration detention.

As to the claimant’s wife and children, it was submitted that the defendant failed adequately to consider the claimant’s rights under Article 8 of the European Convention of Human Rights. It was also submitted she failed to comply with her duty under section 55 of the Borders, Citizenship and Immigration Act 2009, to safeguard and promote the welfare of the claimant’s children, or to follow the procedure set out in the Children and Family Process Instructions of the Criminal Casework Directorate (hereafter “CCD”) of the UK Border Agency on splitting families for the purposes of detention and deportation (paragraph 3.1.1 and 3.5.5 are set out at [50] – [52]). In particular, it was submitted that the decision to detain the claimant but not his family was not taken by an official of the required seniority, after consultation with the Office of the Children’s Champion (hereafter “OCC”) and clearance at CCD Director level, or after reconsidering “the family issue”. For these reasons, it was submitted that decision violated the first and second of the Hardial Singh [1984] 1 WLR 704 principles: see [43].

The claimant’s case is that there was no evidence of absconding by him. Accordingly, the “risk of absconding” factor in the determination of what period of detention is “reasonable” could not apply so as to extend what would otherwise be a reasonable period of detention. Similarly, it was submitted that, since there is no evidence that he poses a risk to the public, this factor could not be regarded as extending what would otherwise be a reasonable period for detention. It was also argued that because the claimant’s application for emergency travel documentation was mislaid for a period by the defendant (see [35]), the defendant did not comply with the fourth of the Hardial Singh principles, that she should act with “reasonable diligence and expedition” to effect removal.

The amended grounds and skeleton argument list the claimant’s wife and three sons as the second to fifth claimants. However, King J made no order in relation to the application in Mr Hawkin’s amended grounds to add them to the proceedings as claimants. King J’s order refers only to the claimant. No step had been taken before the July 2011 hearing to make the proposed additional claimants parties to the proceedings. This might have been done by filing an appropriate application and paying the appropriate fee or, in the case of the three children, filing details of any litigation friend and a certificate of suitability. Nor has any such step been taken in the six months since King J’s order. It was not suggested during that time that this issue had been the subject of decision by King J or that his order was mistaken in not including the wife and children. Accordingly, at the hearing I rejected Mr Hawkin’s contention that there are five claimants and proceeded on the basis that the only parties to these proceedings are Mr Abdollahi and the Home Secretary. For these reasons, and because any claim by the family is contingent on him establishing the unlawfulness of his detention, I also rejected an application made after the hearing to add his wife and children as claimants. I did not consider they were prejudiced by this since success by the claimant in these proceedings would have left it open to the family to bring appropriate proceedings for any loss they have suffered.

The evidence on behalf of the claimant consists of statements dated 23 June 2011 by Tahereh Vahdani, his wife, and Arash Abdollahi, his eldest son, now aged 16. The court was furnished with signed and dated copies of these statements only during the course of the hearing. There are also before me two statements by the claimant made in the context of his appeals to the Tribunal. One is dated 12 December 2008 and the other 11 November 2005. There are also letters from Dr Bertenshaw, a consultant paediatrician, dated 22 March 2011, about the claimant’s middle son, Puria, Dr Aldwark, a cardiology registrar, dated 30 March 2011, about the claimant’s wife’s chest pain, and from Dr Scott, a GP at the Windmill Practice, dated 23 April 2011, about her depression.

Charles Foday, an Executive Officer in the Criminal Casework Directorate of the United Kingdom Border Agency, who was allocated the claimant’s case on 3 February 2011, has made a statement, dated 7 February 2012, on behalf of the defendant.

The claimant maintains that he first entered the United Kingdom in March 2000. He claimed asylum on 18 April that year, on the ground that if he was to return to Iran, he would be subject to persecution from the Iranian authorities because he refused to give up land in his name which the authorities said belonged to them. He maintained that, when he refused to do so, he was given an ultimatum to leave or face the consequences, arrested on charges of spying, and ill-treated. His application for asylum was refused on 11 December 2000, and on 3 January 2001 he lodged an appeal.

On 9 April 2001, while the claimant’s appeal was still pending, he signed a disclaimer declaring that he wished to be assisted in returning to Iran under the Voluntary Assisted Returns Programme (“VARP”), and that he understood that by doing so, he would be withdrawing his application for asylum. In the VARP form, he gave as his reasons for wishing to return as he was missing his family and felt he needed to be with them. His initial statement stated that he returned because he was informed his family’s life was in danger. But in his second statement he said that he had chosen to return because his father told him that the problem with the land had been solved and it would be safe to return. He returned to Iran on 26 April 2001.

The claimant’s appeal was heard by an adjudicator on 4 July 2001. Notwithstanding the statement in his disclaimer that he would be withdrawing his asylum application (and thus his appeal), he was represented by counsel instructed by his then solicitors, the Derby Law Centre. It appears from the decision of the adjudicator that the claimant had chosen not to keep in touch with his then solicitors. The adjudicator found that, on the evidence, the claimant’s account of persecution in Iran was credible, but that the reasons for that persecution did not fall within any of the Refugee Convention grounds. He, however, allowed the appeal on human rights grounds, stating that if the claimant was returned to Iran, he would be subjected to treatment in breach of Articles 3 and 5 of the European Convention. After the hearing of the appeal, the IAA office at Birmingham received a copy of the letter sent to the claimant giving notice of the hearing with a manuscript note indicating that the claimant had moved and gone to Iran.

The next material fact is that during October 2001, six months after his voluntary return to Iran, the claimant re-entered the United Kingdom. On 19 November 2001, in the light of the adjudicator’s decision, he was granted exceptional leave to remain for four years, until 19 November 2005. It appears that his wife and children left Iran in 2002. A EURODAC check by the UK Border Agency revealed that his wife claimed asylum in Germany on 16 March 2003. On 8 September 2004, the claimant entered the United Kingdom at Dover. His wife and two children were found in the boot of his car by HM Customs at Dover. Notwithstanding his wife’s application in Germany, responsibility for her asylum application reverted to the United Kingdom in May 2005, because of non-compliance with the timetables required by the Dublin II Regulation.

On 17 November 2005, two days before the claimant’s four years exceptional leave to remain came to an end, he applied for indefinite leave to remain. That application was still pending when the claimant, now living at an address in Nottingham, applied to return to Iran under the iteration of the policy to encourage voluntary returns then in force. This was the Voluntary Assisted Return and Re-integration Programme (“VARRP”). His wife and three sons, the youngest of whom was born in the United Kingdom in November 2005, were named as dependents. On the form he gave as his reason for wishing to return: “not got a good life in UK”.

The family returned to Iran on 23 November 2006. Before doing so, the claimant and his wife signed IS101(PA), the form containing notices of (a) withdrawal of applications for asylum, (b) intention not to exercise appeal rights, and (c) withdrawal of appeal forms. The practical effect of this was that the claimant’s application for ILR was no longer live. It is common ground that the application “was voided” on 6 June 2007. The claimant and his family were paid a substantial sum (one detention review refers to some £15,000; another to £16,500) under the VARRP to assist in the costs of returning and “reintegrating” into Iran.

According to the claimant, (see his statement dated 12 December 2008), things did not go well on his return. He maintained that on arriving at Tehran airport he was asked why he had left Iran and claimed asylum in the UK, and why he had returned to Iran. The family were to take another flight to Shiraz airport. The claimant stated he was given a letter to deliver to the police at Shiraz airport. He did not do so, but opened the letter. He stated it contained details about the family, stated that court records existed, and that a matter concerning the claimant was under investigation. He also stated that after he made enquiries through his father, he learned that there were new charges against him of applying for asylum in the United Kingdom, collaborating with opposition groups outside Iran, and converting his religion, as well as the existing ones of escape from prison and illegally leaving Iran. He stated that the family then went into hiding and, in May 2007, when they received a court summons, they decided to return to the United Kingdom. He also stated that the police raided the family home and mistreated his wife, that there were difficulties with the children’s education, in part because of their lack of Farsi, and in part because of the attitude of the authorities.

An agent obtained false Finnish and Iranian passports for the family. They travelled to the United Kingdom via Venezuela, Brazil and Grenada. They arrived on 1 October 2008 and attempted to enter as EU nationals using the forged Finnish passports, but were detained at Gatwick airport. The claimant’s wife and children claimed asylum with him as a dependent. The claimant was arrested on 2 October, and lodged an asylum application for himself, but not for his family. On 16 October, he pleaded guilty to two counts of possessing a false/improperly obtained identity document, and was sentenced to 15 months imprisonment. When sentencing him, the judge stated that he would be automatically deported. On 20 November, he was served with a “liability to deport” letter. Representations based on political and religious grounds and a number of Articles of the European Convention on Human Rights were made on 15 December.

On 24 January 2009, the claimant was served with notice dated 22 January of a decision to detain him under the Immigration Act 1971. This was apparently because it was erroneously thought that his prison term ended at that time. In fact, it did not end until 18 May 2009. The material parts of the accompanying letter are that the Secretary of State decided that the claimant should be detained because (a) he is likely to abscond if given temporary admission or release, (b) he has used or attempted to use deception in a way that led the UK Border Agency to consider he may continue to deceive, and (c) he had not produced satisfactory evidence of his identity, nationality, or lawful basis to be in the United Kingdom. The letter stated that the Secretary of State had taken into account Articles 5 and 8 of the European Convention on Human Rights, and whether the claimant’s right to respect for private and family life would be breached if he remained in detention. As to that, it stated that “the Secretary of State is not satisfied that your relationships in the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8”. Save for the suggestion that the person making the decision to detain the claimant may not have had sight of the files of his wife and children, neither the documents nor Miss Chan in her submissions were able to suggest why it was considered that the claimant’s relationships with his wife and three children, who had been temporarily admitted to the United Kingdom, were not “of sufficient proximity” to give rise to a family life for the purposes of Article 8.

The claimant’s wife’s application for asylum with the claimant as a dependent was refused on 17 February 2009. Although she initially lodged an appeal, it was withdrawn on 21 May 2009, shortly after the end of the claimant’s period of imprisonment.

On 18 May 2009, the claimant was served with a notice of a decision (dated 8 May) to make a deportation order. He was also served with a further notice of a decision to detain him under the Immigration Act 1971. The reasons for detention and what was stated in relation to family life are identical to those in the letter dated 22 January. The claimant appealed against the decision to make a deportation order on 22 May. The decision to make a deportation order was maintained in a letter dated 10 September rejecting further representations. As to the appeal, there were hearings on 13 August and 17 September. On 10 August 2009 his application for asylum was refused, and, on 4 November 2009, his appeal against deportation was dismissed. The Tribunal found the claimant not to be a credible witness, noting in particular inconsistencies in his explanations for his two returns to Iran. It found that he had not been embroiled in a land dispute with the Iranian authorities, had not been arrested or ill-treated in Iran, and had not, as he claimed at a late stage, converted to Christianity: see Decision, [64] and [92].

The Tribunal also dismissed the claimant’s human rights appeal. In relation to the latter, the Tribunal noted that his wife had unsuccessfully applied for asylum, but had withdrawn an appeal against its refusal. It considered (see Decision, [101]) the position of the claimant’s wife and family, and in particular the health problems of the wife and the youngest child, and the fact that the children were receiving schooling in the United Kingdom. It stated (at [105]) that it was not persuaded that “any private life established by either of the concerned persons [was] of particular or unusual depth or complexity” and that none of the affected persons had any lawful right to be in the United Kingdom. It concluded (at [106]) that removal would be proportionate because there would be no separation of family members brought about by the deportation of the claimant because he would be accompanied by the other family members, none of whom had any lawful right to be in the UK.

The defendant’s “Enforcement Instructions and Guidance”, chapter 55, requires there to be a review of detention every 28 days by officials of specified seniority. The first period has to be authorised by a Senior Executive Officer or an Immigration Inspector, the second by an Assistant Director, the third by either a higher Executive Officer or a CIO. In the case of the claimant, 8 of the 27 authorisations were by officials of a rank below the required seniority. Those included the first three authorisations. Because of the confusion as to when the claimant’s period of imprisonment ended, there were two detention reviews in February and March 2009, when the defendant was still under the misapprehension that the claimant’s period of imprisonment had ended. These reviews stated that the signatory concluded that the claimant “does meet the criteria for release under conditions of rigorous contact management”, but that his immigration history is “an indication that he presents an increased risk of absconding if released”. The section of the review dealing with likelihood of removal within a reasonable timescale was left uncompleted in both these reviews.

The review dated 12 May 2009 repeated what was said about the criteria for release and the risk of absconding. It also stated:

The July 2009 review referred to a hearing in the appeal proceedings. This was in fact a pre-hearing review. It also referred to the claimant’s family, stated they had no basis to remain here, and that the claimant had no other known ties in the UK to provide him with support and influence compliance with any restrictions. As to the likelihood of removal within a reasonable timescale, the review asserted that “this can happen”. This section also referred to the appeal. In the August review, it was stated that, subject to the dismissal of the appeal, “deportation can be initiated immediately”, and that because the claimant returned to Iran voluntarily on two occasions, it was considered that a travel document could be obtained from him and his removal effected within a reasonable timescale. However, in the “proposal” section of this review, it was stated that the UK Border Agency is “unable to give a realistic estimate of the likelihood or timescale to removal”. Mr Hawkin placed significant reliance on this as undermining the second and third of the principles in the cases of Hardial Singh and I: see [43].

The September 2009 review referred to “the asylum application” as being under consideration. It stated that a decision would be made well before the appeal hearing. Mr Hawkin submitted that, since, if the asylum decision was negative, an adjournment of the appeal would be inevitable, this shows an erroneous approach by the defendant to this issue and to the likelihood of removal. The application for asylum was in fact refused in August, and the hearing of the appeal was adjourned. This was recorded in the review dated 2 October 2009. This stated that the most recent asylum application was a deliberate attempt to frustrate the removal process, and that as the claimant must realise that, having been refused asylum on three occasions and voluntarily returned to Iran on two occasions, there is little realistic chance of being granted asylum, he has no incentive to remain in contact with the authorities were he to be released. The writer maintained the UKBA’s position that, because the claimant had twice returned to Iran, a travel document may be issued within a reasonable timescale. He also stated the reasons the Agency did not consider that the presence of his wife and children would ensure that the claimant complied with any conditions or restrictions imposed on him on any release.

The next review, on 29 October 2009, referred to the refusal of bail on 26 October, and to the views of the Immigration Judge that the claimant’s conviction illustrated he is capable of dishonesty. That, together with the fact that he had made it clear he would not willingly return to Iran, suggested a risk of absconding, particularly if his appeal against deportation were to fail. Mr Hawkin submitted that the reasoning of the Immigration Judge wrongly extrapolated a risk of absconding from the use of false documents and unwillingness to return, factors which he stated are common to virtually all asylum claims. He argued that this was unfounded and should not have been relied on by the UK Border Agency. This review also referred to a letter from the claimant stating his wife was now sick, and that this was depressing for the children, who needed him to take care of them.

The next significant date is 2 November 2009, when section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”) came into force. The review dated 26 November referred to the dismissal of the appeal on 4 November. The December review refers to the claimant’s application for reconsideration of the dismissal of his appeal against deportation, and states that the claimant’s wife and family are residing in the United Kingdom unlawfully, but that no action has been taken to ensure that the wife remains in contact with the UK Border Agency. It was in this review that the need to contact the OCC for advice on the claimant’s deportation was first raised. Mr Hawkin submitted that the advice should also have concerned the decision to detain and maintain detention.

During the period of his detention, the claimant made eight applications for bail, seven of which were refused. Two of those applications, on 5 August and 23 October 2009, were made while his appeal was pending. On the first of those occasions, the Immigration Judge stated inter alia “…the applicant has twice returned to Iran, in 2001 and 2006, under the voluntary aided assisted return programme. This must detract from the current asylum application, which has been made…If I release the applicant on bail, I conclude that he will not keep in touch with the immigration authorities. He has little incentive to comply with restrictions or conditions. If I release the applicant on bail, I believe he will abscond”. On 23 October, the Immigration Judge referred to the conviction for offences relating to false documentation, and stated that the conviction illustrated that the applicant “is capable of dishonesty”. The judge also referred to the fact that the claimant made it clear in evidence that he would not willingly return to Iran. The Immigration Judge considered that those factors suggested a risk of absconding, particularly if the appeal against deportation was to fail, because the claimant was almost at the end of the appeal process at that stage. The Immigration Judge considered that he could be removed “within a reasonable time frame if his appeal fails”.

The application for reconsideration was rejected on 1 December 2009 and the family’s case was referred to the OCC on 23 December. The OCC stated in a letter received on 5 January 2010 that as the Tribunal had been satisfied that the claimant would be removed with his family, the OCC had no objections to it. It, however, advised that social services should be contacted in relation to the ability of the claimant’s wife to cope with the children. This was done on 7 January 2010. Responses dated 8 and 11 January were received from the Nottingham City Council’s Children’s Services team. These state that the children’s schools had been contacted, the family did not meet the Council’s thresholds, and although no further action would be taken, the schools would monitor the children. The January detention review referred to the references to the OCC and the County Council.

The next material development was that, on 14 January 2010, a deportation order was made in respect of the claimant. He was interviewed in February 2010, and asked to complete and sign forms to be submitted to the Iranian Embassy in order to obtain an emergency travel document. When the claimant was informed that the Iranian Embassy would see the forms, he refused to complete them or sign them. He did so on the ground that he could not contemplate returning to Iran, where he feared for his life. He was also non-compliant at interviews on 4 and 10 May 2010. It is recorded in his bail summary that when the consequences of non-cooperation and the implications of not complying with a request to assist in obtaining an emergency travel document, the claimant responded that he was “willing to sacrifice” himself. By then he had refused to complete the application form for an emergency travel document on five occasions. On 12 October 2010 he refused to complete parts of the form.

Returning to the detention reviews, that dated 22 March 2010 referred to the claimant’s non-co-operation and states that “the likelihood of removal with his family is very remote”. The Assistant Director who signed the review stated that, in the light of the claimant’s risk of absconding, as well as his risk of further offending, the presumption to release was outweighed and detention should be maintained pending the outcome of a referral for consideration of managing the claimant via “robust contact management”. The Deputy Director countersigning the review agreed that the claimant should “be referred for release as a priority” although the level of non-compliance indicated a risk of absconding which balanced the presumption to liberty, but only authorised detention for one week to enable the referral to be made. The referral was made on 17 March, but the outcome was not known by the expiry of the Deputy Director’s seven day period. On 8 April it was agreed that the claimant should not be released.

During April and May 2010, consideration was given to prosecuting the claimant for non-compliance. The review dated 11 May recommended that detention be maintained for a further 28 day period while prosecution for non-co-operation was considered. The relevant provision is section 35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”).

The claimant’s June 2010 detention review recorded that he continued to be non-cooperative, and that he was moved to Dover on 29 May so that the prosecution team could interview him. The claimant made a further application for temporary admission on 22 June, but this was refused. There was a further unsuccessful application for bail in August 2010. The Immigration Judge stated that, in view of the non-co-operation and the claimant’s statement during the hearing that he had no intention of returning to Iran, the judge had no doubt that if the claimant was released on bail he would abscond to prevent his removal. The comments on the review dated 3 September by the Deputy Director noted that, despite being satisfied that the presumption of liberty has been outweighed by the risk of absconding, there was concern at “the length of time [the claimant] has been separated from his family”. The Deputy Director stated that, unless there is some indication that there will be a prosecution, consideration must be given to release. On 27 September the Deputy Director repeated his previous comments.

In the review dated 29 November, it was stated that a prosecution might not be able to be instituted because the claimant had completed a bio-data form by then. It was also stated that “removal is not considered to be imminent or within a reasonable timescale”. The Deputy Director authorised detention for two weeks while the case was referred for release. The Deputy Director commented that the claimant “poses little risk to the public, and while there is a residual risk of absconding, he has co-operated to some extent with the ETD process although remains unwilling to return to Iran”.

The review dated 23 December 2010 was considered by the Director, Angela Kyle. She agreed with the Team Leader’s recommendation that a further period of detention was appropriate. She stated that while the claimant “could not be said to pose a high risk of re-offending and further harm, his appalling immigration record and the nature of his conviction demonstrates a higher than usual risk of absconding, and this factor outweighs the presumption in favour of liberty”. She, however, wanted the case referred to the Strategic Director, in order that a view could be obtained as to whether the risk of absconding could be mitigated through robust contact management.

These proceedings were launched on 10 January 2011, but only served on the defendant on 18 March. After the launch of proceedings, on 3 February a further application for bail was refused. The Immigration Judge referred to the claimant’s failure to co-operate in the defendant’s attempts to secure a travel document, and to his statement that he did not do so because he did not wish to return to Iran. The decision stated that “in my conclusion, if released on bail, [he] will disappear and abscond with his family…”.

It was only on 8 March 2011 that the claimant completed an “Emergency Travel Document” interview. On 21 March, further human rights representations were submitted on his behalf. On 27 June 2011 those representations were refused, and the claim was certified. The claimant’s Emergency Travel Document application was not submitted to the Iranian authorities when it was received in March because applications from his family had to be prepared and submitted. They were not interviewed until April 2011. After Mr Foday received the family’s interview records and applications on 1 June, he discovered that the file containing the claimant’s application was missing. He instituted a search for it, but it was not found until early July, when Mr Foday found it while looking for another file. During this period, Walker J refused the claimant’s application for permission on the papers, and the claimant, in a notice dated 28 April, renewed the application to an oral hearing.

Mr Foday’s evidence (statement, paragraph 25) is that he did not consider that the loss of the application for emergency travel documents prolonged the claimant’s period in detention. This, he stated, was because throughout the period this application for judicial review was under consideration, as was further consideration of the claimant’s human rights submissions, which were only certified in the letter dated 27 June to which I have referred. That letter stated that consideration had been given to the effect of the claimant’s deportation on his right to a family life in the United Kingdom. It referred to the fact that his wife and children, although in the United Kingdom, had no legal basis to remain and can return to Iran with him. It contained the first reference to section 55 of the 2009 Act. It stated that, while recognising that the interests of the children are a primary consideration, the other factors of the claimant’s case outweighed them.

I have referred to the claimant’s applications for bail, and in particular to the applications on 5 August and 23 October 2009 and 3 February 2011. On those occasions and thereafter the Immigration Judges’ conclusions that the claimant posed a risk of absconding were based on his past history of clandestine entry and deception, and his two returns to the United Kingdom after having voluntarily returned to Iran with the support of public funds, the fact that he did not co-operate in obtaining travel documentation until early March 2011, and his statements when giving evidence and in the detention reviews that he would not return to Iran and (see the detention review dated 7 June 2011) that he would only be returned in a body-bag.

After the claimant’s Emergency Travel Document application was found, it and the applications of his family and supporting documents were sent to the Iranian Embassy by recorded delivery on 13 July (Mr Foday, statement, paragraph 27).

On 15 July the claimant was released on immigration bail by an Immigration Judge. By then, Mr Foday had been informed by colleagues in the relevant department that it was proving very difficult to progress the Emergency Travel Document application with the Iranian authorities. Relationships with Iran were deteriorating and, on 2 December 2011, the Iranian Embassy in the United Kingdom closed.

Section 5(1) of the Immigration Act 1971 (“the 1971 Act”) empowers the Secretary of State to make a deportation order against a person who is liable to deportation. Section 5(5) states that the provisions of schedule 3 to the Act, with respect to immigration detention or control, apply to those against whom deportation orders are in force. Paragraph 2 of schedule 3 empowers the detention of those who have been served with notice that they are liable to deportation, and those in respect of whom a deportation order has been served. By paragraph 2(3) “where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom…”.

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

As well as the decision of the House of Lords in Kadir’s case, and the recent decisions of the Supreme Court in R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 and R (SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, there is a line of Court of Appeal decisions including R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, and R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 112, and a number of first instance decisions, for example R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, R (Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057 (Admin), and R (SM) v Secretary of State for the Home Department [2011] EWHC 338 (Admin), in which the case law and principles are summarised.

The two recent Supreme Court cases approved and applied the principles set out in Hardial Singh and I’s cases, and in the latter Dyson LJ (as he then was), at [46] and [47], reformulated the principles set out in ex parte Hardial Singh. He considered that there were four principles governing the lawfulness of detention pending “removal or departure”. These are: (i) the Home Secretary 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 Home Secretary will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Home Secretary should act with reasonable diligence and expedition to effect removal. In R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12, it was common ground that that statement correctly encapsulated the principles. However, in R (A (Somalia)) v Secretary of State for the Home Department [2007] EWCA Civ 804 at [43] and [45], the principles were stated in a slightly different way.

In A (Somalia)’s case, Toulson LJ re-stated the four principles as two core principles. The first is that the power to detain may be exercised only for the purpose for which it exists; i.e. to secure removal or departure. The second is that the power may be exercised only during such period as is reasonably necessary for that purpose. The question for Toulson LJ was whether there was “a sufficient prospect” of the Home Secretary being able to achieve removal to warrant detention, having regard to all the circumstances. Toulson LJ considered (see [45]) that principle (iii) in I’s case is a facet or a consequence of the two core principles, and not a third principle, although cf. Richards LJ in R (MH) v Secretary of State for the Home Department EWCA Civ 1112 at [47].

In the circumstances of the present case, the different formulations do not, in my view, lead to any difference. It is clearly important for the Home Secretary to have regard to all the circumstances. Those circumstances include the length of the period of detention, and the nature of the obstacles which stand in the path of the Home Secretary removing and preventing a deportation, including whether the detainee has co-operated in the process of return, that is in obtaining Emergency Travel Documents. They also include the diligence, speed and effectiveness of the steps taken by the Home Secretary to surmount such obstacles, the risk that, if released, the detainee will either abscond, commit criminal offences, or pose a danger to the public.

The circumstances also include the effect of detention on the detained person, and – see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [24]; R (NXT) v Secretary of State for the Home Department [2011] EWHC 969 (Admin) at [108] – [109] – his or her family in this country, in particular children. The best interests of children are a primary consideration, although (see ZH (Tanzania) at [26]) this does not “lead inexorably to a decision in conformity with those interests”. Provided other considerations are not treated as more significant a decision-maker could conclude that the strength of those other considerations outweighed the best interests of the children. As to the prospects of effecting removal, in MH’s case Richards LJ stated ([2010] EWCA Civ 112 at [65]) that what constitutes a “sufficient prospect” is a question of balance in each case, depending on the weight of the various factors which have to be taken into account. He also stated “there can…be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur, and without any certainty that removal will occur at all”.

The cases show that considerable periods of detention may be held to be reasonable in the light of the circumstances: see A (Somalia) [2007] EWCA Civ 804 (48 months); R (MH) [2010] EWCA Civ 1112 (38 months); and R (ABM) [2010] EWHC 2057 (Admin) (36 months). These are all longer periods than the 26 months in this case.

There is some common ground between the parties. There are, however, differences. For example, they differ in relation to what can give rise to a risk of absconding, the effect of non-co-operation on what constitutes a reasonable period of detention, and the effect of a pending outstanding appeal. They also differ as to what has to be done in cases in which the person to be detained will be split from his wife and children.

Because the liberty of the individual is being curtailed by administrative detention, it is for the court to determine whether the length of detention is reasonable: see A (Somalia) at [62] and [71] and MH’s case at [67]. It is the court which is the primary decision-maker and which must determine the legal boundaries of administrative detention, although there may, as Toulson LJ recognised, possibly be incidental questions of fact, as to which the court may recognise that the Home Secretary is better placed to decide than it is. The burden of showing that there is a lawful justification for the detention, that is imprisonment, of a person, lies on the Home Secretary: see R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12 at [65], referring to R v Deputy Governor of Parkhurst Prison, ex. p. Hague [1992] 1 AC 162, and see SK (Zimbabwe) [2011] UKSC 23 at [49].

In determining whether detention is justified, it is also necessary to have regard to relevant policy guidance. Section 3 of the 29 September 2009 version of the Criminal Casework Directorate’s Children and Family Cases Process Instruction (“the departmental policy”) deals with “splitting families for the purposes of detention and deportation”. The material parts of this state:

Paragraph 1.1.1 concerns how to contact the Children’s Champion. It states that the official in charge of the case should “summarise any relevant information that they have and send it to the OCC ‘Children’s Champion’ inbox” and gives details of an email address. It also states that each stage of the process, i.e. the deportation order, the arrangements to detain, and the arrangements to remove, “may be considered in one single request for advice in order to minimise the number of referrals to the OCC for each case”.

Detention is dealt with in paragraph 3.1.5. This provides:

Mr Hawkin had five limbs to his submissions. These were that the claimant should not have been detained because of: (a) his pending asylum claim; (b) the temporary admission of his wife and children and the failure of the defendant to comply with her duty to safeguard and promote the welfare of the children; (c) the failure to follow the relevant policy guidelines on splitting families for the purpose of detention; (d) the absence of evidence that he posed a risk of absconding or a risk to the public; and (e) the defendant’s failure to act with “reasonable diligence and expedition” when the defendant mislaid the claimant’s application for emergency travel documentation for a period.

I deal first with (c), failure to follow relevant policy. The submission that detention was not lawful because the decision to detain and the 28 day detention reviews were not carried out by officials of sufficient seniority can be addressed briefly. Lord Dyson in WL (Congo)’s case at [68] expressly disavowed the suggestion that such a breach would render the detention unlawful. He stated:

The second limb of (c) and (b) are the submissions that the detention was unlawful because of the failure; (i) to follow the Criminal Casework Directorate’s instructions for children and family cases, and (ii) to have regard to the children’s best interests and, after the relevant date, section 55 of the 2009 Act. Miss Chan submitted that the failure to consult the OCC did not render the claimant’s detention unlawful from the outset. She submitted that, had consultation with the OCC taken place at that stage, it would have made no difference to the decision to detain the claimant. The best evidence of what would have happened had earlier consultation taken place was, she argued, the response from the OCC when consulted in December 2009. The response of the OCC dated 5 January 2010 was that, as it was satisfied that the claimant and his family would be removed together, it had no objections. The OCC advised that social services should be contacted in respect of the suggestion that the claimant’s wife was struggling to cope with the children, but when the social services were contacted, the response was (see [27]) they had no concern. Miss Chan also relied on the fact that the defendant was well aware that the claimant had a family and children, and they were often mentioned in the detention reviews.

As far as the children’s interests are concerned, Miss Chan submitted that the detention reviews showed that their position was considered. The absence of explicit reference to section 55 of the 2009 Act before the letter dated 27 June 2011 (see [36]) did not render the claimant’s detention unlawful because it was clear from earlier reviews that the position of the family and children were taken into account. Moreover, in considering the duty to safeguard the children’s welfare and their best interests, it had to be borne in mind that the family’s initial separation occurred not as a result of the claimant being detained under immigration powers, but because of his 15 month period of imprisonment. This is certainly an important part of the context in which decisions were being made, as was the fact, also relied on by Miss Chan, that the defendant always contemplated the family would be removed together: see, for example, the July 2009 review summarised at [22].

On the issue of consulting the OCC and the consideration of the children’s interests, the approach taken by the defendant is troubling. Miss Chan suggested that the sparse treatment of their position at the time of the initial decision to detain, and in the early reviews, may have been because the person making the decision to detain the claimant did not have sight of the files on his wife and children. The detention review in May 2009 (see [21]) mistakenly assumed that the family were also detained. Moreover, on 18 May when the claimant’s period of detention started, his wife had an appeal against the refusal of her application for asylum lodged. It was only on 21 May that she withdrew that appeal.

The judgments in WL (Congo) show that the fact that the defendant could have detained the claimant lawfully will not render detention lawful where there has been a breach of a requirement of public law if that breach bears on and is relevant to the decision to detain. Miss Chan’s submission that earlier consultation would have made no difference in substance repeated the unsuccessful submission on behalf of the Secretary of State in WL (Congo). It sought to apply a causation test which (see [2001] 2 WLR 671 at [66] per Lord Dyson) “shifts the focus of the tort onto the question of how the defendant would have acted on the hypothesis of a lawful self-direction, rather than on the claimant’s right not in fact to be unlawfully detained”. Lord Dyson stated there was no warrant for this, and that the correct and principled approach is to ask whether there was in fact lawful justification for the detention.

Lord Dyson accepted that it was not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment, and that technical breaches, for example decisions made by an official of an inappropriately junior grade, will not do so. This was because he considered such errors were “not capable of” affecting the decision to detain or not to detain. Baroness Hale stated (at [207]) that the test is whether the breach of public law duty is “capable of affecting the result” and continued that this was “not the same as saying that the result would have been different had there been no breach”.

I do not consider that it can be said that a failure properly to consider the position of the children at the time of detention and to consult the OCC as required by Departmental policy is a technical error, or an error of the kind that is not capable of affecting the decision to detain. It appears, moreover, that the defendant may have considered that the policy only applied in relation to the decision to remove, rather than the decision to detain, because it was only after the dismissal of the claimant’s appeal that the OCC was consulted. In fact, it is clear from the policy (see [50] – [51]) that it applied to “any decision to split a family” including by detention. Accordingly, on this issue, I reject Miss Chan’s submissions in relation to the period before the OCC and Nottingham Social Services were consulted.

As to the rest of the grounds, I reject Mr Hawkin’s submissions. I first deal with his submission that there cannot be any prospect of removal if an asylum application or appeal is pending, because the decision to make a deportation order is either not in force, or will be suspended. It is clear that the fact that a detainee has an appeal pending does not mean that removal is not pending, and that there can (see the statement of Richards LJ in MH’s case I have set out at [46]) be a realistic prospect of removal even though it is not possible to predict the date by which this can be expected to occur, or even to be certain that it will occur.

In WL (Congo)’s case, Lord Dyson stated at [115] that determining the position where an appeal against deportation or an asylum appeal is being pursued is “a fact-specific exercise”. The effect of an appeal will depend on the other factors, such as (see [116]) the level of risk of absconding or re-offending, and (see [118]) whether the appeal is prima facie meritorious or obviously hopeless. “Time taken in the pursuit of hopeless challenges should be given minimal weight in the computation of a reasonable period of detention”: see [120].

Lord Dyson also stated that the court considering the legality of a detention will often be able to assess the prima facie merits of an appeal. It will be able to take into account matters such as whether a claim has been certified as “clearly unfounded”, there have been one or more determinations by Immigration Judges dismissing a person’s claims as “wholly lacking in credibility”. It will also be able to take into account whether there have been orders for reconsideration or a grant of permission to appeal to the Court of Appeal.

In the present case, the background is that the claimant voluntarily returned to Iran on two occasions (see [9] and [12] – [13] of this judgment) after making applications for asylum. On the first occasion he did so while an appeal against the refusal of asylum by the defendant was still pending. The application for asylum after the claimant re-entered the country illegally for the third time (see [15]) and the subsequent appeal against the deportation order made needs to be judged against that background. The claimant’s March 2011 human rights representations were certified in June.

In these circumstances, I do not consider that the fact that a further asylum application and an appeal against the deportation order were pending when the claimant’s period of imprisonment came to an end and his period of immigration detention started meant that there was not “a sufficient prospect” of the defendant being able to achieve removal within a reasonable period. It cannot be said that his appeal was a meritorious one. Accordingly, the time between the commencement of the claimant’s detention on 18 May 2009 and 4 November, when his appeal against deportation was dismissed, has (see Lord Dyson at [121]) “minimal weight in assessing what is a reasonable period of detention”. It is also significant that Lord Dyson recognised that the fact that even the pursuit of a meritorious appeal does not necessarily mean that the period of detention during the appeal should be taken into account in its entirety for the benefit of the detained person. He stated only that “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”.

I also reject the submission that in this case the “risk of absconding” factor cannot apply to extend what would otherwise be a reasonable period of detention. Mr Hawkin submitted that there was no evidence of previous absconding, or of failure to comply with conditions of temporary admission, release or immigration bail. He argued that, apart from the arrival in October 2010 using forged passports, there was no evidence of previous disregard of immigration laws. He submitted that possession of forged passports is a common feature of the “inevitably unlawful entry required in order to claim asylum” and that “in the circumstances, to actually prosecute the claimant was dubious to say the least”: see skeleton argument, paragraph 19. He contended that, on the Secretary of State’s approach, “virtually every asylum seeker who enters the United Kingdom is at a ‘high risk of absconding’”: claimant’s response to defendant’s skeleton argument, paragraph 10.

On the evidence, the claimant poses no risk to the public from serious criminal activity of the sort that the claimants in the cases of A (Somalia), NXT, the second claimant in MA and TT, and Chen posed. Those claimants had respectively been convicted of rape, serious drugs offences, burglary, and rape. In MA and TT the first claimant, albeit without such a record, had failed to comply with reporting restrictions, and the second claimant had absconded to Ireland.

What, however, of the risk of absconding? While this may not have been as high as the cases of A (Somalia), NXT and MA and TT, I reject the submission that there was no risk of absconding and no evidence of such a risk. The non-co-operation by the claimant in the process of return by completing the application for Emergency Travel Documents, his firm position that he did not wish to return and was determined to remain in the United Kingdom, and the views of the Immigration Judges who refused bail on the grounds that he posed a risk of absconding provide such evidence.

Although in this case the claimant has a wife and children in the United Kingdom, they have no leave to remain. Since his wife’s appeal against the refusal of her application for asylum was (see [17]) withdrawn on 21 May 2009, they have no status themselves. For these reasons and because they entered the United Kingdom with the claimant using the false passports they cannot be regarded as inhibiting any risk of absconding by him, possibly with them.

In the light of R (Conan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin) at [30], the fact that bail has been refused is not material to the determination of the lawfulness of detention, since an Immigration Judge considering an application for bail has no power to determine the lawfulness of the detention. But the fact that bail has been refused is not irrelevant to the separate consideration of the lawfulness of a person’s detention by this court. This is because of the overlap between the considerations material to the grant of bail and those relevant to the determination of whether or not detention is lawful. The risk of absconding or of committing further offences are two such overlapping considerations: see MA and TT’s case [2010] EWHC 2350 (Admin) at [15], per the Deputy Judge, Mr Ian Dove QC. The Deputy Judge, however, also accepted that, in assessing the weight to be attached to decisions on applications for bail, it is necessary to have regard to the extent and quality of the information available to the Immigration Judges determining the applications.

In the present case, in the determination dated 5 August 2009, the Immigration Judge considered (see [26]) that the claimant’s returns to Iran under the VARP and VARRP schemes detracted from the asylum application that had subsequently been made, and that this meant that the claimant had little incentive to comply with restrictions or conditions. In the bail application determined on 23 October 2009 the judge referred to the conviction for the passport offences, which he stated illustrated that the claimant was capable of dishonesty, and the fact that because the claimant was almost at the end of the appeal process at that stage and had stated he would not willingly return to Iran, he posed a risk of absconding. The Immigration Judges considering later applications for bail also considered that the claimant posed a risk of absconding because of his past history of deception, his two returns to the United Kingdom after having voluntarily returned to Iran, the fact that he did not co-operate in obtaining travel documentation until early March 2011, and his statements that he would not return to Iran.

Another factor was the claimant’s non-co-operation in obtaining Iranian travel documentation until over 18 months after he was detained. In some cases this may be an altogether independent factor. It is not in this case. As I have stated, it was taken into account by some of the Immigration Judges who considered his applications for bail, and care must be taken to avoid double-counting.

Moreover, in WL (Congo)’s case, Lord Dyson, re-iterating his approach in I’s case at [51], warned against “the danger of drawing an inference of risk of absconding in every case” of non-co-operation ([2011] UKSC 12 at [123]). He also (at [128]) stated that the fact that a detained person has refused voluntary return should not be regarded as a “trump card” enabling the Secretary of State to continue to detain until deportation can be effected, whenever that may be.

Lord Dyson stated that the most common examples of non-co-operation are: (i) a refusal by a person who does not have a valid passport to co-operate with the obtaining of travel documents to enable him to return; and (ii) a person’s refusal to avail himself of one of the Home Office schemes by which he may leave the United Kingdom voluntarily. He stated ([122]) that most of the discussion in the cases centred on the second situation. Analytically, there may not be much difference between the effect of the two, although example (i) might be regarded as a more active form of non-co-operation than example (ii). Lord Dyson also stated (agreeing with Simon Brown LJ in I’s case and Keene LJ in A (Somalia)’s case) that “if the refusal of voluntary return has any relevance…even if a risk of absconding cannot be inferred from the refusal, it must be limited”. That may possibly suggest that he was primarily focusing on the second, more common, example of non-co-operation. His is a narrower approach than that taken by Toulson LJ in A (Somalia). Toulson LJ regarded the refusal of voluntary repatriation as important not only as evidence of the risk of absconding, but also because he regarded the loss of liberty involved in the continued detention as a product of the individual’s own making: see [2007] EWCA Civ 804 at [54].

In considering the position in this case, it is not only the lack of co-operation, both by refusing to return voluntarily and positive non-co-operation by refusing to provide the data necessary for the application for Emergency Travel Documents to be made for such a considerable time, that are relevant. It is also necessary to consider the background against which this non-co-operation took place. Of particular relevance are the claimant’s two returns to the United Kingdom after having voluntarily returned to Iran with the support of public funds, one clandestinely and one fraudulently, and his subsequent statements that he would not return to Iran. The firmness of those statements is illustrated by the one (see [37]) recorded in the detention review dated 7 June 2011, that he would only be returned in a body-bag. These factors have led me to conclude that he does pose a risk of absconding, albeit a lower risk than in the cases to which I have referred at [65].

Since it is generally acknowledged that the determination of the legality of a detention is a highly fact-sensitive matter, and depends on all the circumstances of the case, it is important not to look at any one factor in isolation. As the Deputy Judge in R (BE) v Secretary of State for the Home Department [2011] EWHC 690 (Admin), Mr Stephen Morris QC, stated (at [16]) there is a balancing exercise involving something of a sliding scale and “where there is a high risk of absconding and of serious harm from reoffending a lesser prospect of removal will be sufficient than where the risks of absconding and harm are lower”. In this case, given the earlier voluntary returns with proper documentation, there was a greater prospect of removal. The claimant is not entitled to rely on his own non-co-operation as the basis of a submission that there is no prospect of removal within a reasonable time. In the light of all these circumstances, the fact that he posed a lower risk of absconding than in the other cases did not mean that his detention was unjustified and unlawful.

I also reject the submission that the fact that the defendant mislaid the claimant’s application for an Emergency Travel Document shows that she did not act with reasonable diligence and expedition to effect removal, and thus did not satisfy the fourth of the principles in I’s case concerning the lawfulness of detention pending removal. This could only have been relevant after 11 March 2011 when the claimant’s application form was finally completed. Before then, he had been consistently non-compliant. He had refused to complete the form on five occasions between November 2009 and May 2010. In October 2010, at a time when a prosecution under section 35 of the 2004 Act was being considered, he refused to complete some parts of the form, but completed a bio-data form.

The documents were not sent to the Iranian authorities when the defendant first received them because (see [35]) the bio-data of his family members had to be obtained and applications from them prepared. They were not interviewed until April 2011. When their interview records and application forms were received by Mr Foday at the beginning of June, he discovered that the file containing the claimant’s application was missing. It was not found until early July. The applications were sent to the Iranian Embassy very soon after his application was found. I do not consider that the fact that the family was not interviewed until April 2011, or the period during which Mr Foday was unable to locate the claimant’s application, showed a failure to act with reasonable diligence and expedition.

I have rejected all but one of Mr Hawkin’s submissions. But I accepted his submission about the failure to follow the Departmental policy requiring consultation with the OCC at “the earliest possible juncture” when deciding to detain and in its initial stages. This means that the defendant has not shown a lawful justification for the detention until 11 January 2010 when (see [27]) the OCC and Nottingham Social Services had been consulted. Accordingly, she is liable for the tort of false imprisonment. It is, however, clear from WL (Congo)’s case that, at this stage, the position had the appropriate policies and correct principles been applied is relevant to the question of remedy. The Supreme Court held that if the application of those policies and principles would have meant that it was inevitable that the individual concerned would have been detained, the person detained would suffer no loss or damage as a result of the unlawful exercise of the power to detain and would not be entitled to compensatory damages. A majority of the court also held that there is no justification for awarding a detained person in those circumstances exemplary or vindicatory damages. It was held that in such a case, a claimant is entitled only to nominal damages. See also R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 at [38] and [57].

In this case, the factors to be considered are the claimant’s non-co-operation, his firm statements that he would not return to Iran, the risk of absconding, albeit not a risk at the highest level, and the background of the two returns to the United Kingdom after voluntarily returning to Iran, on the most recent occasion with the use of false passports discussed at [61] to [78]. In the light of those matters, I have concluded that the claimant could have been detained in any event in the lawful exercise of the power of detention and he would have been so detained. For these reasons, while the defendant is liable in the tort of false imprisonment, the claimant is only entitled to nominal damages. To that extent, this application is granted. I have received and considered written submissions as to the form of the order.