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

HIS HONOUR JUDGE DAVIS: This is not the first time that the claimant, Khalid Belfken, has been the subject of proceedings in this court. On 10th July 2012 Beatson J considered his case [2012] EWHC 2932 (Admin). In that instance Beatson J was considering an application for permission to apply for judicial review, challenging the claimant's detention, which is precisely the nature of his claim today.

In that case Beatson J gave permission and made a mandatory order directing the claimant's release. I respectfully adopt the history of the case as set out by Beatson J between paragraphs 2 and 5 of his judgment.

The proceedings with which I am concerned were commenced earlier in 2013 and permission was granted by His Honour Judge McKenna, sitting as a Judge of the High Court on 22nd July. I now considering his application for judicial review, the decision being reviewed being his detention.

The claimant, it is agreed, arrived in this country in March 2005. His notional date of birth as ascribed to him by the Secretary of State was 1st January 1990. He claimed asylum shortly after his arrival. Asylum was refused but he was given leave to remain until his 18th birthday in accordance with the policy then obtained.

It was very soon after that that he began committing criminal offences. He has a long and varied record, certainly very long for somebody of his age, given that even now he is only in his early 20s. It began in October of 2005, when he burgled somebody's home. His first custodial sentence was in 2007, but that was by no means the next time he was convicted. The custodial sentence, one of 6 months' detention and training, was his twelfth appearance before a court. In 2011 he went to prison for offences of burglary including burgling people's homes, a total sentence of 12 months. Then in 2012 he stole property, failed to comply with a community order he was given and finally towards the end of 2012, he stole again and received a prison sentence.

With the very greatest of respect to him he is not somebody who offers any real benefit whatsoever to this country or the community. If he were a UK national, that would be that and he would be regarded as somebody who would be receiving longer and longer sentences if he continued to offend. He is not a UK national. He says that he is a Moroccan national. But he last was in Morocco, on his case at least, when he was 9 or thereabouts and the problem that arises in this case arises from the fact that the Moroccan authorities refuse to accept his return to that country. I have already referred to the fact that Beatson J has considered a previous set of proceedings in relation to the claimant's detention. It goes back to 2008, when he was in detention for a period of something approaching 3 years. In the course of that detention there were three applications made for an emergency travel document. The claimant does not have a passport and never has had since he left Morocco at a very young age. Each of those applications for an emergency travel document was rejected. The rejection in each case took a number of months. In 2008 the application was supported by fingerprints. That was rejected. The conclusion was reached by the authorities in the United Kingdom that there was every prospect that the claimant's fingerprints would not have been on a Moroccan database because of his age when he left Morocco. The second application in the middle of 2009 was also supported by fingerprints. That failed, the Moroccan embassy saying that they found that the claimant was not a Moroccan national. The third application in 2010 was supported by a language analysis report, a copy of which is within the papers in these proceedings. It is quite a detailed ...

The claimant's release merely led immediately to him committing more offences. The gap in his offending that is apparent from the police record was simply due to the fact that he was detained, not because he was in any way turning over a new leaf. So, with his further detention as a result of criminal offences, a further application for emergency travel documentation was made in order to see his deportation to Morocco. His detention under the immigration provisions began in December 2011. It was that detention that Beatson J considered. The attempt to obtain emergency travel documentation appears on that occasion to have been supported by fingerprints, arguably a somewhat sterile exercise given how it had proceeded before. But, in any event, an emergency travel document was refused by the Moroccan Consulate.

It is notable that in that process there was, albeit late in the day a face-to-face interview with the Moroccan consulate. An email subsequent to the refusal of the emergency travel document indicated that the Moroccan consulate was unable to issue such documentation because the fingerprints submitted were not identifiable in Morocco and the Consulate officials were "unable to confirm nationality by interview".

When Beatson J reached the conclusion that he did he noted the fact that the claimant had a very bad history and was concerned as to what would happen when he was released. Beatson J's concern was entirely justified because, as has already been identified in the rehearsal of the criminal history, the claimant continued to commit criminal offences and indeed there is evidence that he failed to report as required under the orders sanctioned by Beatson J.

His detention, the propriety of which is challenged in these proceeding began on 18th March. As a matter of fact, and this is agreed, although that is when the detention began, it was not authorised in the appropriate manner under the immigration provisions until the beginning of July. It was the 3rd July that the detention was authorised.

There is no doubt that for that period, namely 18th March through to 3rd July, the purported detention under the immigration provisions was in public law terms unlawful. But it is accepted on the part of Mr Denholm, who appears for the claimant, that there are cases in which unlawfulness due to public law breaches would, without more, have entitled a claimant to substantial damages. He accepts that this is not one of though cases and he accepts that the principles as set out in the case of R Lumba v Secretary of State for Home Department [2011] 2 WLR 671 apply, as indicated in the headnote at subparagraph (3) on page 673. I do not recite it any further. The reality is this case turns upon whether the detention was lawful under the principles set out in the well-known case of Hardial Singh [1984] 1 WLR 704 as refined in further authority.

The four principles in Hardial Singh as they have been refined are as follows. First, the Secretary of State must intend to deport the person and that is the only permissible use for the power to detain. Second, the deportee may only be detained for a period that is reasonable in all the circumstances. Third, if before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to affect deportation within a reasonable period, then the Secretary of State should not seek to exercise the power of detention any further. It may be that that would mean the detention should not be exercised at all. Fourth, the Secretary of State should act with reasonable diligence and expedition to effect removal.

It is agreed on both sides that the relevant consideration that this court has to consider, as indeed Beatson J had to in 2012, is the issue of whether the Secretary of State should have appreciated that she would not be able to affect deportation within a reasonable period.

What is a reasonable period for these purposes? Again, the jurisprudence is extensive. I respectfully adopt the analysis set out by Hickinbottom J in R Mahfoud v Secretary of State the Home Department [2010] EWHC 2057 (Admin), where he said in the sixth paragraph of the judgment:

The position here was that the claimant was somebody who was not just likely to but almost certain to re-offend. He was somebody who very possibly would abscond at least in the sense not co-operate with any reporting. Therefore, as is argued by the Secretary of State, there are significant factors that suggest that the detention should continue for some considerable period in order to effect the deportation. The reasonable period in the case of somebody like Mr Belfken is very much longer than in the case of somebody who may have committed an offence which brings them within the foreign criminal provisions but otherwise is a reasonable and responsible member of the community.

However, as Hickinbottom J says, that does not amount to a trump card. The Secretary of State in this case concedes that, on the other side of the balance, it is necessary to consider the prospects that the Secretary of State might be able to effect the deportation of Mr Belfken.

As to that, the claimant asserts that taking into account the burden of proof that lies on the Secretary of State, the overwhelming preponderance of the evidence is certainly now that there is no real likelihood that that will be possible.

The claimant accepts that there is evidence, some of it is disputed, that the claimant has not been wholly co-operative in this process but the claimant argues, with justification, that irrespective of any co-operation the claimant gave, there is in fact little or nothing he would be able to do that would affect the view of the Moroccan authorities, given the long negative history in this case vis a vis those authorities.

The Secretary of State was entitled, as of the 18th March to make a further effort to effect the deportation of Mr Belfken. He was somebody who, as I have already indicated, added and adds nothing to the well being of the United Kingdom, very much the reverse. But whilst she was entitled to engage in that process for a period, once it became apparent that face-to-face interview had occurred and nothing immediate had followed from it, at that point she should have concluded that there was no sensible expectation within any reasonable period in the context of this case, of being able to effect deportation. That was, as a matter of fact, the conclusion of a relatively junior official, within her department. I emphasise the word "relatively". He was apparently a higher executive officer. That person wrote on the 27th August 2013:

None of this is meant to indicate that Mr Belfken should not be deported. Far from it. He richly deserves deportation and the deportation request, the efforts to deport will not cease with his release, but I am simply here to consider whether his immigration detention is lawful bearing in mind the Hardial Singh principles. The inevitable consequence of my conclusion is that from the 13th August until today's date and until he is released, he is entitled to damages for his unlawful detention, a prospect which doubtless would concern if not horrify many right-thinking members of the community. It is to be emphasised that he is being detained under particular provisions which are governed by particular principles and they must be applied rigorously by the Secretary of State. For the reasons I have given I do not consider that they have been so applied in this case.

I shall briefly review the way in which the case was put by the Secretary of State, both in her skeleton argument and in oral argument today. The argument was that there is no need for the Secretary of State to point to a particular date. She is entirely correct in that. As I have emphasised already, in a case which has this kind of history there must be some genuine evidence of a prospect of removal. The conclusion that seems to me to be inevitable from all the material that I have, more pertinently she had, is that there is no current prospect of removal or more particularly removal within a reasonable period.

It may be true that the claimant has not co-operated in relation to a potential release address. I have little direct evidence on the point but that does not, in my judgment, impinge at all on whether, within a reasonable period, the Secretary of State is going to be able to effect deportation.

In the skeleton argument it is argued that what happened after the order of Beatson J is relevant. There were breaches of the conditions imposed and there was continuing criminal offending. Thus, a fresh Hardial Singh assessment has to be carried out. Plainly that is right. But that fresh assessment cannot stand in isolation. It is bound to and must consider everything that has gone before. The history of this case is bound to lead to the conclusion (at the point I have identified) that no deportation would have been capable of being effected within a reasonable period.

As I say, I have taken into account all the matters the Secretary of State has raised today. But none of them seem to me to discharge the burden of proof which is on her to demonstrate that each of the relevant principles in Hardial Singh have been identified and met and in relation to the third, I am satisfied they have not.

So I shall need to hear as to what the order consequent upon those findings.

MR THOMANN: My Lord I am grateful. There are some conditions that my client has asked me to impose upon an order for release. It may well be that Mr Denholm and I will be able to agree those and hand up an order in those terms if we are given a moment. Would that be convenient?

HIS HONOUR JUDGE DAVIS: I will give you as long as you want.

MR DENHOLM: I think that it would be helpful and to enable me to liaise me with my instructing solicitor as well.

HIS HONOUR JUDGE DAVIS: Then you will have to agree how the issue of damages in relation to the period from 13th August to whenever release occurs is dealt with.

MR DENHOLM: I think our proposal will be a stay to enable the parties to negotiate and a transfer to a Queen's Bench Master if not.

HIS HONOUR JUDGE DAVIS: I will just rise. If you do not achieve anything in 15 minutes it may be that I will go away and have some lunch but I daresay you will be able to do it in that time.

MR THOMANN: My Lord you will be pleased to hear that we have agreed the substance of an order. There is one matter on which we do require your assistance which is costs.

MR DENHOLM: Just to be clear. We formally agreed the procedural matters that flow from your Lordship's judgment. There are various conditions proposed by the Secretary of State which we are not opposing but we do not have formal instructions to accept them, so we will ask your Lordship --

HIS HONOUR JUDGE DAVIS: Yes, all right. If you hand up whatever it is that is proposed. (Same Handed) (Pause) Right. So far as the conditions are concerned, presumably ... I know there are occasions where the Secretary of State comes to a point where she thinks: yes, detention cannot continue, for whatever reason and conditions will be imposed. But presumably she then says: the electronically monitored curfew requirement will be X and the person concerned signs up to those. Indeed they have to, they have to acknowledge them. Is it permissible for me to simply say the claimant will comply with any tagging requirements that the Secretary of State comes up with?

MR THOMANN: I think there is a requirement to be tagged in principle. I do not understand that to require him to keep curfew hours.

HIS HONOUR JUDGE DAVIS: I see. It is to be merely electronically monitored.

MR THOMANN: Yes.

HIS HONOUR JUDGE DAVIS: Should not the order say that? That it is comply with electronic monitoring requirements. If there is no curfew - obviously there does not have to be any specification in the order.

MR THOMANN: I think Mr Denholm is right, it does usually imply a curfew and at the moment the order is open ended in terms of that involves. It may be that the hours can be the subject of agreement between at least ... if I suggest something that Mr Denholm will not object to it. The suggestion that comes to mind, which is usual, is between the hours of 8.00 in the evening and 8.00 in the morning.

HIS HONOUR JUDGE DAVIS: Right. You say that is "usual".

MR THOMANN: I am very much in your hands on that.

HIS HONOUR JUDGE DAVIS: You may or may not appreciate my more usual experience of tagging requirements is in the criminal courts. They for them to be effect in bail terms and they have to be nine hours which means in practice they always are 9 hours. If there is a "usual", it is 9.00 in the evening until 6.00 in the morning.

MR DENHOLM: My Lord, I confess no knowledge of the "usual" practice in either (Pause).

HIS HONOUR JUDGE DAVIS: It simply seems to me that for me to approve an order, whereby the claimant agrees to comply with any tagging requirements imposed by the defendant is simply too opened.

MR DENHOLM: I think on reflection that must be right, yes. It leaves the door open to curfews at multiple points during the day or any length of time. I have seen cases in which the tagging requirements have been present at the property for periods twice a day, so it is not unrealistic to think that may happen. So I think we do need to identify a period.

HIS HONOUR JUDGE DAVIS: The purpose of this so that he stays wherever he is supposed to be. If on any occasion he is not there, then literally the alarm bell goes off. At least the defendant, should she think it worthwhile doing so, can make immediate enquiries as to where he is.

MR THOMANN: Yes, perhaps it would make sense for that to be stood over to one side for now while my instructing solicitor takes my client's views on it. The reason it is worded as open ended as it is is because there is a prospect that the claimant may be in accommodation where it will be practically impossible to set up tagging. That is why the phraseology has been use "any tagging requirements". I entirely accept that it would be more satisfactory to actually specify those to date if we can.

HIS HONOUR JUDGE DAVIS: There are not many places where you can tag somebody. I mean Serco will literally come and fit a telephone line or the relevant box in any premises nowadays. In the old days it used to be: have you got a land line. That does not matter now.

MR THOMANN: I think the concern raised on the claimant's side is that he may be in a hotel or accommodation of that nature where it would be difficult. Beyond that, the issue --

HIS HONOUR JUDGE DAVIS: I am sorry to interrupt. I think the solution therefore must be that I do not impose tagging requirements but you have liberty to apply given that the conditions are being imposed on release, consequent upon an order by this court.

MR THOMANN: That is a possibility. I wonder if we could save costs and time if I obtain instructions in a moment for specific hours and I suggest those and I cannot see any reason why we would not impose those now, if they are sensible. (Pause) We would have to say any tagging conditions imposed between the hours of, to use my Lord's suggestion a moment ago, 9.00 at night and 6.00 in the morning. I think we are catering for the contingency although it might not prove feasible.

HIS HONOUR JUDGE DAVIS: The lack of feasibility will be if he simply lodged in a friend's house who says: no, you cannot put your box in my house.

MR THOMANN: Yes.

HIS HONOUR JUDGE DAVIS: The claimants do comply with any electronic monitoring requirements in so far as they are practicable, with a curfew between 9.00 pm and 6.00 am?

MR THOMANN: Subject to any instructions I am about to receive I have no objection. Can I confirm briefly with my instructing solicitor?

HIS HONOUR JUDGE DAVIS: Yes surely.

MR DENHOLM: My Lord, as before we obviously do not have directions formally agreed but we would not oppose.

HIS HONOUR JUDGE DAVIS: I understand that.

MR THOMANN: I am grateful for that opportunity. My instructions are 8.00 to 8.00 is the preference but my Lord if you consider it appropriate we could live with 9.00 to 6.00.

HIS HONOUR JUDGE DAVIS: It is not as if there is some activity which he is going to do at 8 o'clock but 9 o'clock does not matter. It is simply to make sure you keep tabs on him. That is the purpose of all this. (Pause) I suppose where he reports is entirely dependent on where he lives.

MR THOMANN: That is the idea of the order.

HIS HONOUR JUDGE DAVIS: Where is the usual location. Is it a Home Office premises or a police station or does it just depend?

MR THOMANN: My understanding is it depends. The most satisfactory location is a Home Office location.

HIS HONOUR JUDGE DAVIS: Yes. But I mean if he lives - I do not know - Scarborough for instance, then presumably he would have to travel miles to get to one, would he not? The knowledge of Scarborough and Home Office premises. I mean it --

MR THOMANN: It plainly cannot impose unreasonable.

HIS HONOUR JUDGE DAVIS: All right. I will put "reasonably practicable location". So that is the conditions to be applied.

MR THOMANN: The only outstanding matter then is costs.

HIS HONOUR JUDGE DAVIS: All the rest of this order is agreed, is it?

MR DENHOLM: My Lord, yes.

HIS HONOUR JUDGE DAVIS: All right.

MR THOMANN: It may make sense if I make my submissions on that first before allowing Mr Denholm to respond. You will not be surprised I am expecting to pay some costs for these proceedings. However, one is now encouraged, in fact obliged under CPR 44.34 to consider amongst other factors whether a party has succeeded on part of his case even if he has not been wholly successful.

My submission is that as regards compliance of the detention with the Hardial Singh conditions, my client has been successful up until 13th August 2013. That is at least a partial success, particularly in view of the fact that this is the index period when the proceedings were commenced and the costs associated with that were incurred.

I entirely accept that from 13th August onwards my Lord has found detention to be not merely unlawful but substantively in breach of the Hardial Singh conditions and my Lord will recall that you have also found that in the initial period between 18th March to 3rd July it was unlawful on public law grounds. What I am suggesting would do justice to that scenario on a proportionate basis will be an order that the defendant do pay 70% of the claimant's costs.

MR DENHOLM: My Lord, we say very briefly, we have achieved all the remedies that we sought in the claim form. We were seeking an order for my client's immediate release. We were seeking declarations in relation to legality of his past detention and we were seeking damages for false imprisonment. We have achieved all of those objectives.

The process for the court is an evaluative exercise and examining the legality of my client's detention over the past 6 months or so, necessitated a close consideration would have gone before, whether we focused our attention entirely on the periods since August or whether we focused our attention on the whole hearing made no difference at all to the volume of work we have to do to bring the claim before the court, made no difference at all to the documents that had to be placed before the court. No unnecessary work has been incurred by the fact that we did not recover Hardial Singh damages for the entire period. We say that we have succeeded on the whole of our claim. Even if that is not right, that there are no costs that can properly be passed on the costs that recurred in properly bringing this case before the court and as such we are entitled to all of our costs in the usual way.

HIS HONOUR JUDGE DAVIS: In these proceedings, consequent upon my judgment, the parties, in large measure, have agreed the appropriate order, with some minor amendment in relation to the conditions upon which the claimant is to be released.

The only matter upon which they are not agreed is the issue of costs. The Secretary of State accepts that, to a significant measure, she should bear the claimant's costs. However, she invites me to conclude that, since I have found that up to 13th August 2013 the claimant's detention was justified on Hardial Singh basis that therefore I should not order the entirety of the claimant's costs, given that the claimant was arguing throughout that he should not have been detained at all.

I bear in mind the need to maintain proportionality in relation to costs. But, in my judgment, the claimant has in all practical terms succeeded in his claim. It cannot be, in my judgment, even submitted on a tentative basis that the case would have been approached any differently had the claimant simply claimed unlawful detention from the middle of August. The entire case has been litigated on the premise that detention throughout has been lawful. The precise period, it seems to me, is of no consequence at all in terms of the way in which this litigation has been conducted. Therefore, my conclusion is that the appropriate order for costs is that the claimant should recover his costs, to be assessed presumably.

MR THOMANN: I am grateful.

HIS HONOUR JUDGE DAVIS: Can I leave...

MR DENHOLM: My Lord, my learned friend asks in relation to the order on costs it is to be assessed on the standard basis if not agreed.

HIS HONOUR JUDGE DAVIS: I am sorry. I took that as read. Yes. Thank you very much for your assistance.