Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
HER HONOUR JUDGE WALDEN-SMITH
(SITTING AS JUDGE OF THE HIGH COURT)
Between:
THE QUEEN ON THE APPLICATION OF CHUCK
Claimant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
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Mr Declan O'Callaghan (instructed by Duncan Lewis) appeared on behalf of the Claimant
Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
JUDGE WALDEN-SMITH: This is the application for permission to judicially review the Secretary of State for the Home Department ("the Secretary of State") brought on the application of Mr Stephen Chuck ("Mr Chuck") for both the decision to detain him pending deportation and the decision to deport.
At the commencement of the hearing before me on 20 March 2015, Mr O'Callaghan, counsel for the Claimant, formally withdrew the application to judicially review the decision to deport (CO/3205/2014). That application had been made by Mr Chuck acting in person to the Upper Tribunal and had been transferred to be listed to be heard with the claim that he had been unlawfully detained by the Secretary of State by order of Upper Tribunal Judge Dawson made on 1 July 2014.
The application to judicially review the decision to detain Mr Chuck pending deportation was bought in the Administrative Court on 4 June 2014 by his solicitors, Duncan Lewis (CO/2602/2014). The Secretary of State, through the Treasury Solicitor, provided the acknowledgement of service and summary grounds of defence on 22 August 2014, there having been an order of His Honour Judge Alan Gore QC sitting as a Judge of the High Court on 1 August 2014, that the Secretary of State be given 14 days for filing and serving the acknowledgement of service and summary grounds of defence after service of the order. On 26 September 2014, Lang J refused the application for interim relief and ordered that both applications be listed as "rolled up" hearings, expressing her concern about the length of time that Mr Chuck had been in detention and the apparent impasse between the parties. The hearing listed for 27 November 2014 was adjourned with costs reserved on the agreement of the parties on 24 November 2014.
The matter came on for hearing on Friday 20 March 2015 and the decision for me is whether there is an arguable case that the Claimant has been unlawfully detained such that permission ought to be granted to allow a judicial review hearing to take place and, if so, to make a determination on the substantive claim that he has been, and is now being, unlawfully detained such that he should be released.
I am grateful to both Mr O'Callaghan on behalf of Mr Chuck and Mr Thomann on behalf of the Secretary of State for their full and helpful written and oral submissions.
Mr Chuck was detained on 9 March 2012 and had therefore been detained for a total of 3 years and 11 days by the date of the hearing, and 3 years and the 18 days by the date of this judgment.
During that period it is accepted by the Secretary of State that, as a result of administrative oversight, she failed to review Mr Chuck's continued detention between the period 5 March 2013 and 26 July 2013. The Secretary of State was given power by the Immigration and Asylum Act 1999 to make rules for the regulation and management of detention centres. Rule 9 of the Detention Centre Rules 2001 provides as follows:
Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.
The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him."
Rule 9(3) sets out a list of relevant matters for the purposes of that paragraph.
It is the Secretary of State's position that Mr Chuck could and would have been lawfully detained during that period of March to July 2013 so that any damages for that period would be nominal. However, she also accepts that, by reason of the failure to review during that period of nearly four months, the Claimant is entitled to permission to judicially review the decision to detain as there was that failure to review. In SK (Zimbabwe) v Secretary of State for the Home Department [2011] 1 WLR 1299, the Supreme Court provided (by a majority decision) that a foreign national's detention pending deportation is rendered unlawful when the only defect in the decision to continue detention was a failure to carry out reviews in accordance with the Secretary of State's published policy to review. This is because the reviews are fundamental to the establishment of the propriety of continued detention.
Even without the failure to carry out the reviews for that four-month period in 2013, I would have given permission to judicially review the decision to detain for reasons I will set out in full herein.
The parties are agreed that if I were to find that there had been, or is now, unlawful detention of Mr Chuck then the determination of any damages that would flow from that unlawful detention would be for the Queen's Bench Division. If the only period of unlawful detention is that period of detention where reviews did not take place, but I find that the Secretary of State could properly have detained Mr Chuck during that period, then he would only be entitled to nominal damages and there is no necessity for that to trouble the courts any further and I can make an order to that effect.
The Factual Background
I will deal with the chronology of events subsequent to Mr Chuck's detention in greater detail below. The history of matters leading to his detention is as follows.
On 9 March 2012, Mr Chuck was detained under the immigration powers of the Home Office. Mr Chuck had been convicted at Isleworth Crown Court of making a false statement in relation to VAT on 24 June 1997, for which offence he was sentenced to 21 months' immediate custody. Not much is now known about the circumstances of that first recorded offence, but on 11 March 2010 Mr Chuck was convicted of obtaining pecuniary advantage for himself by deception, theft by an employee and obtaining money transfer by deception. The sentencing remarks reveal that Mr Chuck was thoroughly dishonest, and Mr O'Callaghan sensibly did not seek to persuade me otherwise. The sentencing judge said as follows:
"If it is correct that your birthday is 28 July 1972, then you are now aged 37. You have been convicted by the jury upon clear evidence of three separate offences. They cover count 1, when in 2001 you obtained a job at Computer Warehouse by deception. On count 2, a period of two and a half years leading up to November 2007, when you systematically stole from your employers, abusing, as you did, the very substantial position of trust that you had been given, a total sum in excess of £400,000, which, it is quite evident, that you then used in order to support a relatively extravagant lifestyle with cars, restaurants, numerous visits to clothes shops and, indeed, the purchase of two houses. Count 3, concerns events in June and July 2006, when you told lies about your income in order to obtain a mortgage from the Halifax in order to purchase the second of those two properties."
The judge then went on to refer to the most serious of the offences being the theft of over £400,000, as that was an abuse of trust. He went on to say:
"The consequences of that were to cause the severest possible difficulties to your employers, Computer Warehouse Limited and by extension, to the 52 employees of that company. Your thefts, in effect, brought that company to its knees, such that the ultimate owner felt obliged to put in some million pounds of his own money to try to support that company through the process. Sadly, that has not been successful and due to your initial thefts, together I have no doubt with economical difficulties, which are common to many companies, that company is going into liquidation with the loss of the jobs of your former colleagues. The offences are aggravated by the systematic offending over an extended period. They are also aggravated by the fact of your previous conviction; being convicted before this court back in 1997 of making a false statement in relation to VAT, which, apparently following a guilty plea resulted in a sentence of imprisonment of 21 months. Unfortunately, no details of that offence are available to this court, but certain it is that a sentence of that length, following a guilty plea, must indicate a substantial degree of dishonesty on that occasion. Your counsel has rightly recognised that there is no alternative, in these circumstances, to an immediate custodial sentence. In sentencing you I have regard to the overall criminality involved, extending as it does over a period of some five to six years in total."
Mr Chuck was sentenced on that occasion to 3 months for the first offence, 4 years for the theft and 3 years for the third, all to be served concurrently. The total sentence of 4 years was not appealed.
When Mr Chuck was inducted into HMP Wormwood Scrubs he claimed to be a British citizen who had been born in the "Manchester City Hospital". A Police National Computer check revealed that Mr Chuck had nine alias names. Mr Chuck continues to maintain that he is a British citizen. On instructions, Mr O'Callaghan informed the court that Mr Chuck was born of a teenage mother who had herself been born in the UK in 1957. He had been born in 1972, his maternal grandfather was Jamaican and his maternal grandmother was from Mauritius.
On 28 June 2011, an onus of proof letter was sent to Mr Chuck asking him to provide evidence that he was a British citizen. He responded to the UK Border Agency on 2 July 2011 saying he had been born in "Manchester City Hospital" (an institution that does not exist) of a teenage mother whom he barely knew; that he had gone to live with extended family when he was 10; and that he had never had a British passport but only a British visitor's passport which was discontinued in the 1990s. Bank statements, including mortgage statements, and an HMRC printout were provided by Mr Chuck, but no evidence was provided of his nationality, and the checks of the UK Passport Office by the Secretary of State provided no trace that Mr Chuck had ever been issued with a British passport.
A notice of liability to automatic deportation was served upon Mr Chuck on 14 July 2011 and a letter was served on 18 July 2011 advising Mr Chuck that he was liable to automatic deportation. Mr Chuck did not seek to appeal the decision to deport, but in October 2011 Mr Chuck's representatives contended that he was British and therefore should not be treated as a foreign national. No evidence was provided to support the claim that he was a British citizen, although Mr Chuck's representatives asserted that he owned two properties and would not have been able to obtain a mortgage without leave. The Secretary of State asked Mr Chuck's solicitors to approach the building societies to identify what documents as to nationality and immigration status had been provided with the mortgage application.
Nationality checks were undertaken by the Secretary of State in February 2012 which did not take the determination any further, and on 6 March 2012 Mr Chuck saw an immigration officer who he advised he was British. Mr Chuck was told that he still needed to provide proof of his nationality.
On 2 March 2012 the decision was taken to detain Mr Chuck upon his release which was due for 9 March 2012. On 5 March 2012 Mr Chuck was provided with reasons for the decision to detain, namely that it was for the purpose of effecting removal; that there was a likelihood of him absconding; that there was a high risk of harm to the public; and that he had failed to provide satisfactory evidence as to his identity. Mr Chuck was detained under the Immigration Act on 9 March 2012.
The Power to Deport and the Power to Detain
Section 32 of the Borders Act 2007 provides for automatic deportation with respect to foreign criminals:
"32 Automatic deportation
In this section 'foreign criminal' means a person—
who is not a British citizen
who is convicted in the United Kingdom of an offence, and
to whom Condition 1 or 2 applies.
Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
Condition 2 is that—
the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
the person is sentenced to a period of imprisonment.
For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
he thinks that an exception under section 33 applies
the application for revocation is made while the foreign criminal is outside the United Kingdom, or
section 34(4) applies.
Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State."
Detention powers are provided for by section 36 of the Borders Act 2007, which incorporate the powers of detention under the Immigration Act 1971 and paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971.
The power to detain contained in the Borders Act 2007 and the Immigration Act 1971 is restricted by principles first set out by Woolf J in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704. These Hardial Singh principles were distilled by Dyson LJ in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888, and approved by the Supreme Court in R (Lumba and Mighty) v Secretary of State for the Home Department [2012] 1 AC 245, and they can, in my judgment, be summarised as follows:
The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
The deportee may only be detained for a period that is reasonable in all the circumstances;
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
The Secretary of State should act with reasonable diligence and expedition to effect removal.
In R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549, Carnwath LJ made the following clear determination (see paragraph 12 of the judgment):
"The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained."
In Lumba, Lord Dyson SCJ held as follows:
"A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires..."
It is for the Secretary of State to show that the detention was justified in law. The detainee has to show that he was directly and intentionally imprisoned, whereupon the burden shifts to the Secretary of State to establish that there was lawful justification for doing so.
The factors relevant to determining what is a reasonable period of detention will include:
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.
The authorities make it clear that there are no "trump cards" in determining whether the period of detention is reasonable. A number of principles can be gleaned from the various authorities, in particular Lumba and R(MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112:
there can be a realistic prospect of removal without it being possible to specify or predict the date by which removal can reasonably be expected to occur and without any certainty that removal will occur at all; there is no "outer" limit on the reasonable period (MH);
the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors (MH);
the risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it would become a trump card (Lumba);
the weight to be given to time taken up by an appeal depends on the facts but 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 was pursuing a hopeless one (Lumba);
a detainee who will not comply with the process of obtaining emergency travel documents or other requirements of detention and is doing everything he can to hinder the deportation process may reasonably be regarded as likely to abscond (Lumba; MH);
refusal of voluntary return does not necessarily permit an inference of risk of absconding (Lumba);
where return is not possible (for reasons that are extraneous to the person detained), the fact that the detained person is not willing to return voluntarily cannot be held against him, because his refusal has no causal effect (Lumba); however, where the detainee has failed to bring his own detention to an end when he could, then that is a relevant matter. In (R) Sino v Secretary of State for the Home Department [2011] EWHC 2249, John Howell QC, sitting as a Deputy High Court Judge, said as follows (see paragraph 56 of the judgment):
"In my judgment the significance of a detainee's own conduct is inevitably sensitive to the facts of the particular case, like all other matters that are relevant to the application of the Hardial Singh principles. The Supreme Court may have rejected any exclusionary rule that generally required all delay occasioned by a detainee's own conduct to be disregarded. But equally it did not adopt any exclusionary rule that generally required the contribution that a detainee's own conduct may make to the length of his own detention to be disregarded. Thus in my judgment it is likely, other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of individual who co-operates. Similarly it is likely, other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document). Nonetheless, although an individual who has only himself to blame for his detention being prolonged by virtue of his own conduct may not attract sympathy, in my judgment his conduct cannot be regarded as providing a trump card justifying his detention indefinitely. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him."
In R (NAB) v Secretary of State for the Home Department [2010] EWHC 3137, Irwin J said:
"Faced with a recalcitrant person whom it is proposed to deport, the authorities can and should be free to make strenuous efforts to obtain the assent of the individual concerned. They can and should seek any way around his consent, for example by persuading his country of origin to issue travel documents without a disclaimer or any other indication of willingness on the part of the subject. But if no such action produces results, then, depending upon the facts of the case, it may be necessary for the authorities to face up to the fact that all of the shots in their locker, if I may use that expression, have been expended."
In other words, even if the detainee frustrates the attempts to deport and seeks, by failing to co-operate, to delay deportation, such lack of co-operation does not mean that the Secretary of State can detain indefinitely. There has to be some coherent plan towards deportation which does mean, however unpalatable it sounds, that a detainee could in principle, through his lack of co-operation or provision of false information, delay deportation to the point of denying it. Such lack of co-operation is, as is the risk of further offending, something that is to be taken into account in determining whether detention should continue and it is plainly something which can lead to an extension of what is considered to be a "reasonable" period for detention (Lumba) and R (Kajuga) v Secretary of State for the Home Department [2014] EWHC 426 per His Honour Judge Blackett, sitting as a Judge of the High Court, said the following: (see paragraph 18 of the judgment):
"As a matter of principle I do not entirely agree with the approach taken by John Howell QC in Sino. It is a matter of common sense that if a person obstructs the deportation process and fails to cooperate with the Secretary of State then the 'reasonable' period will be longer and probably much longer. While it may not be indefinite, it may certainly extend to a period covering, if necessary, a number of years, provided the Secretary of State makes real and continuous efforts to ascertain where the detainee has come from and should be deported to. The period would continue to be reasonable until those efforts are finally exhausted."
It is important to note that in both Sino and NAB the Secretary of State was entirely reliant upon the detainee co-operating in order to be able to deport. In this case, as well as obtaining information from the detainee, the Secretary of State was capable of undertaking her own enquiries to identify the detainee and his country of origin;
even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the Secretary of State's wish to detain (Lumba);
there is no maximum period after which detention becomes unlawful (Lumba; MH);
it is not enough to found a claim for damages for unlawful detention to demonstrate in retrospect that some part of the statutory process had taken longer than it should have done;
the risk of re-offending is a relevant factor as it goes to both the risk of absconding and evading prosecution as well as public protection (Lumba); however, the detainee cannot be detained simply to avoid the risk of further offending, as such detention would not be for the purpose of deportation. It is necessary to consider, given the risk of re-offending, whether it is proportionate and reasonable to keep the detainee detained in all the circumstances of the matter including the length of time he has already been detained and the expected timetable for his removal (per Hickinbottom J in R (Mahfoud) v Secretary of State for the Home Department [2010] EWHC 2057).
The cases are very fact specific and consequently whether a period of detention was held to be unlawful or not in any particular case is of no particular assistance. It does not assist, for example, to point to the decision of Singh J in R (Badah) v Secretary of State for the Home Department [2014] EWHC 364 (Admin) as support that as a detention of 4 years and 1 month was justified that should support the detention in this case of 3 years and 18 days as being lawful. Badah was a case where there was a long gap between two periods of detention of just over 2 years between 2009 and 2011, during which period Singh J held that the detainee could have been much more co-operative during that period such that he was "to a large extent ... the author of his own misfortunes".
The Court's Role
The Secretary of State has accepted that the failure to conduct detention reviews in this case in accordance with her own published policy is a public law error which bears upon the lawfulness of the detention of Mr Chuck during that period in 2013.
The court's role in this matter is otherwise supervisory: namely, to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision maker has acted within the limits of the discretionary power conferred by statute. The court does not take the role of a primary decision maker: see Richards LJ in LE (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 597 and reference to his earlier decision in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909. In paragraph 29(4) of his judgment, he refers back to OM and says:
"In my judgment, with which Ward LJ and Hughes LJ agreed, I said ... that the question whether the appellant could lawfully have been detained was a matter of legal assessment which had two separate strands to it:
'The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of continued detention to be assessed by reference to Hardial Singh principles.'"
The Facts
Mr Chuck was detained on 9 March 2012 immediately upon having served his custodial sentence, the deportation order having been signed on 5 March 2012. When inducted into Brook House IRC, Mr Chuck asserted (as he had when inducted into HMP Wormwood Scrubs in 2010) that he was a British citizen.
The GCID case record sheet provides a record that:
"The detainee again stated that he is a British Citizen and that he would like to be released in order to obtain evidence with regards to his identity and that he will not abscond.
I explained to the detainee why he is being detained and that the onus is on him to prove that he is British.
I asked the detainee if he had any family in the UK to which he replied yes, I asked the detainee if he could ask his family to provide evidence with regards to his identity to which he replied that they are his extended family and they do not know that he is being detained.
I asked the detainee if he had any children in the UK to which he replied yes he has a boy, I asked the detainee if he was on the child's birth certificate to which he replied no and he was in prison when the child was born.
I asked the detainee if he had provided any evidence proving that he is the child's father to which the detainee replied he will be speaking to the child's mother with regards to obtaining evidence, I asked the detainee to submit any evidence ASAP."
Mr Chuck does not continue to assert that he was unlawfully detained at the commencement of the detention. As is accepted on his behalf, the Secretary of State had considered the appropriateness of detention; had identified that she would take steps to deport; that the risk of absconding outweighed the presumption in favour of release; that Mr Chuck had numerous aliases and "has a record of serious recidivist criminal offending which manifest a total disregard for law and order" and that he would pose a materially greater than average risk of absconding and re-offending.
As at December 2012, there was a belief that Mr Chuck could be a Jamaican. Again, the GCID case record sheet for December 2012 provided that:
"CST (the Jamaica expert) are interested in arranging for the subject to be interviewed by the Jamaican Attaché... The surety and frequent visitor appears to have been born in Jamaica."
The monthly progress report provided to Mr Chuck in January 2013 set out that it had been decided that he would remain in detention to effect his removal from the UK because he was likely to abscond if given temporary admission or release; his release carries a high risk of public harm; and that there is risk of further offending. The current barrier to removal was set out to be:
"Confirmation of your actual nationality and service of deportation papers dependant on the outcome of the nationality interview and the amount of documentary evidence you can provide us with to confirm your nationality/identity."
Details of Mr Chuck's visitors were collated together in August 2013 and wet fingerprints taken - some 17 months into his detention. As at October 2013, it was recognised that it was "borderline" as to whether Mr Chuck was being lawfully detained. The authorising officer's comments of October 2013 provided, amongst other things, as follows:
"Mr Chuck's past is all a bit of a mystery. Is he, in fact, Mr Chuck. We do not really know and he is going to great lengths not to tell us. And so he is the architect of his current situation, prolonged detention. Whilst we are still unsure of his identity and nationality we are in our right to maintain detention, as long as this is not indefinite. We are making calculated progress in our attempts to discover who he is and where he comes from and I am satisfied that this is progressing at a pace that will enable removal, to wherever that may be, in a reasonable timeframe.
I concur with the caseowners risk of absconding, how could we possibly release someone whom we don't really know, have little idea where he comes from, know little about his past yet hope that he remains in contact with us. It is far too risky.
Mr Chuck has twice been convicted of fraud, both convictions attracted significant prison sentences. It is possible he will commit again, if released from detention. The risk is real, in my opinion and one that will inevitably be harmful, most probably to a UK based financial institution or employer."
He goes on to say that he is content to authorise detention for a period of up to 28 days having considered the presumption to liberty. He then asks:
"... whether [words redacted] the instructions of two months back, that being to construct a timed documentation plan, or [words redacted] instructions of last month, to challenge the 'French speaking' aspect of this case have been carried out as well as opening up new leads as the caseowner has failed to articulate the plan in the review and has not updated since [words redacted] interview last week, but what I do sense is that this case needs to be escalated because we are borderline, in my opinion, on lawful detention. If it isn't already this case needs to be very high on CSIT's priority list and needs a Senior Manager supporting and, in part, leading on the exploration of every possible line of enquiry."
On 7 February 2014 the Secretary of State again set out the reasons for continued detention, and those reasons continue through the monthly progress reports provided to Mr Chuck. As at March 2014, further steps had been taken. The action plan for the next review period provides that there be continued liaison with the CCI team:
"... regarding progress of their investigations in respect of confirming Mr Chuck's identity and nationality as well as their financial investigations in the light of his mortgage/savings/pensions accounts and theft of [£400,000] from his employers which lead to his arrest and convictions."
There was consideration then as to whether there should be a prosecution pursuant to the provisions of section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, but a decision was made on 11 March 2014 that there was not sufficient evidence available to bring such a prosecution.
A lengthy interview took place on 17 June 2014. That interview took place at Brook House. Set out in the notes of that interview:
"Subject has done nothing to resolve the situation he finds himself in and his claim to be British since I last saw him in October 13, although he has access to visitors - a close friend and a mobile phone. He claims to be an entrepreneur by profession yet was unable to convince me that these skills had been used to effect to resolve his disputed nationality. He is aware that we visited Manchester and spoke to people that he knew but was cagey and very ambiguous and almost nervous in his answers. On being told that a Rosita Anywanu wanted to visit him in detention - and whether he would like to see her he declined on several occasions - almost embarrassed stating that 'he was not in a good place to see her'. This will be relayed back to the Manchester family. When asked about his ex-partner and child - he became tearful ... Asked why the ex-partner had not visited him in Brook - he stated that she was unable to handle his situation. His partner it is claimed is a paediatric doctor - and in reality would be able to handle this situation.
It is very clear that Mr C refused to believe anything else that he is British and he has been told by me that whilst he has been in the UK for a long time - he was not born in the UK. He refuses to accept this in any shape or form. He also speaks with what is in my opinion a pronounced Nigerian accent which suggests that he entered the UK - possibly after his formative years. Enquiries continue in regard to this man who is totally unable to counter challenge what has been put forward in regard to his problems."
In July 2014 record is made that some significant progress had been made. It is referred to "several strides" that had been made by CCI and Op Hotspur, referring to the contact with what is described as "Mr Chuck's family in Manchester", including a lady believed, it is said in that report, to be his mother. That interview with the family in Manchester was undertaken by the investigations team on 27 May 2014.
From early 2014, the Secretary of State was being faced with the potential of judicial review proceedings. In a pre-action protocol letter from his solicitors, Duncan Lewis set out in detail the nature of Mr Chuck's complaint. That letter is dated 28 March 2014. It sets out the chronology of the deportation order being served, and says in terms that:
"... the Defendant's position, vis a vis our client's deportation is the very same as when he was first held under immigration powers. The Defendant has still not determined our client's nationality and deportation is not imminent."
That pre-action protocol letter elicited a response on 10 April 2014. The Home Office set out how the information provided by Mr Chuck did not go towards establishing that he was a UK citizen. The Secretary of State sets out in that letter that:
"Your client has mentioned his family members in correspondence, but has not given us their full details, including date of birth, full address [current or last known address] and full name. This information is required to confirm his nationality."
The Secretary of State was continuing through this time to attempt to elicit a response from Mr Chuck with respect to the identity of the family in Manchester, and more particularly the identity of his relationship with the family in Manchester. It is set out in the case record sheet that he was still being asked questions with regard to that but was still obfuscating. By October 2014, Mr Chuck is beginning to be referred to as "Mr X" in some of the notes. It is set out in the record of September 2014 that two questions were asked in order to elicit a direct response, "something that this subject seems reluctant to do":
"1 - does he want to receive a visit from Mrs Rosita Anyanwu - who could be mother named Rose - who the subject claims was his teenage mother who lives in Cheetham Hill - an area where the subject claims to have grown up. Denied by Mrs Anyanwu.
2 - Will the subject divulge the details of his claimed partner and mother of his child - 'Christine Anderson'."
On 6 November 2014 the Home Office officer spoke to an Edwina Anyanwu (the daughter of Rosita) on the telephone. The record of that conversation records the following:
"I explained that Mr X was visibly upset when I had handed him the photograph of Rosita Anyanwu at my last interview with him and shared with Edwina that her mother was surprised when shown a photograph of the subject during the home visit in Manchester. Rosita had asked at the visit whether she could visit Mr X who she was told was in detention. Rosita Anyanwu was unable to elaborate further on why she wanted to see him. Mr X when asked if he would like to see Mrs Anyanwu stated that he did not and that 'he was not in the right place at the moment'.
...
Edwina understands why we continue to probe the Anyanwu family as it is clear that Mr X has used this family's details to construct an early life in the UK. Edwina believes that Mr X came to the UK from Nigeria - no proof. She was also asked if other members of the family in Manchester were able to provide more information on this man who appears to have just descended on the family from nowhere. Edwina stated that after a family discussion - her family have no further information. Indeed, she stated that the family wanted to distance themselves from Mr X. In discussion - Edwina is aware that part of our investigations had looked at the possibility of Mr X being an estranged son of her late father or her mother. Edwina stated that she was quite prepared to undergo a DNA comparison test with Mr X. As a scientist by profession Edwina acknowledges the benefit of proving/disproving kinship with Mr X. Edwina Anyanwu reiterated that the Anyanwu family - the father in particular lent money to Mr X's parents whilst on a trip to Nigeria to finance Mr X's education fees in the UK. This suggests that the Anyanwus may be connected in some way to Mr X as this was not an unsubstantial amount of money for a man who already had an established family life in the UK with Rosita Anyanwu and three young children."
Mr Chuck was interviewed again on 11 November 2014. He was asked whether he would like to have contact from Rosita. He said that he did not:
"... but stated during interview that he has the utmost respect for Rosita and the Anyanwu family. It is clear that there is a close association between this man and the family in Cheetham Hill (the place where the subject states he was born and later abandoned by his mother - Rose Godfrey). The subject still claims British birth as 28/7/72 and denies that he has used any other names before. He also claims to have been issued with a NiNO in 1979 - when he was 7 ???. He is unable to explain why at such an early age he was issued with this. The subject was asked about his early life to which he replied he lived with an Aunty - Mrs Johnson (he can't remember her first name). It was pointed out that he had used the names Justin Johnson and John Johnson on previous occasions - he denies this. During interview the subject confirmed that he was issued with a driving licence and that a copy of this is with his legal reps. This is the first time this has been mentioned. He was asked to contact his legal reps and produce a photocopy of the licence to us by 12 pm on 12/11/14. He stated at interview that he has never been known as anything but Stephen Chuck and confirmed his DOB as 28/7/72. This man has not been able to provide any proof of birth in the UK - he has never held a full passport, verification checks with a school in Manchester etc has come up with nothing. On 12/11/14 a copy of the driving licence held by legal reps was sent to me. It shows it being issued to STEPHEN CHUCK and the date of birth is recorded as 28/7/1963 - not 72. A covering letter from the subject states that he noticed the mistake and tried to get this changed but was unable to do so because he does not have a birth certificate. The date of birth is completely different from the date we have seen before. As a result enquiries will be made to DVLA to clarify this issue. From speaking to Edwina Anyanwu - born in 1975 - she recalls at the age of 10 or thereabouts the subject driving which would make his DOB somewhere between 1963-1967. In regard to his claimed ex-partner - a Christine Anderson - a paediatric doctor who he claims works at the Clementine Churchill Hospital, Harrow - enquiries are in hand to confirm if she exists. The subject has been very reluctant to disclose details about her - he can't recall her date of birth."
Enquiries were then made in November 2014 of the Diocese of Salford and the Manchester social services to see if they had any records of the Claimant: other enquiries, for example of local schools and hospitals, had failed to reveal anything to either support the Claimant's account of being a British citizen or positively point to any other nationality.
On 12 December 2014 he was interviewed again. At that interview it is recorded that:
"What is clear from several interviews with this man is that he does not speak with anything resembling a London or Mancunian accent bearing in mind he states he was born here. The accent is marked Nigerian in my opinion - something that a language analysis would be able to confirm."
There is then a record, again in December 2014, of a further faxed letter being sent by Mr Chuck within which he states he is not biologically related to the Anyanwu family, and he is blaming his predicament on a dysfunctional upbringing without providing any details. Despite the subject's protestations, it is recorded in these notes that it is considered he has a credible link to the Anyanwu family. It is further set out in those notes:
"This man will attempt to have an explanation for any attempt to progress and establish his true identity and nationality - strongly believed to be a Nigerian national who has lived in the UK - without any identifiable or legal basis for a number of years - but not since early childhood."
The impression from a close reading of the entirety of those case record sheets is that the Home Office are, by this time (December 2014) becoming increasingly close to identifying who this individual is. It appears from reading those case notes that Mr Chuck, as that identification comes closer, feeds further false information in an attempt not to be identified.
Mr Chuck was then interviewed by the Nigerian task force on 12 January 2015. That interview is, in my judgment, extremely significant. The notes in the GCID case record sheet provide that Mr Chuck stated that he could not understand why he was being seen by the Nigerian Immigration Services, and that as far as he knows he is British. It is further recorded that he was at a loss to explain why he has a National Insurance number and a totally different date of birth or a driving licence issued to him in the wrong name and date of birth. He says that he has never seen a birth certificate.
Mr Chuck was also, it is recorded, at a loss to explain to the interviewing officers how he managed to find full-time work at the age of 11 after he was abandoned by his mother, and said that he needed money to pay for rented accommodation:
"The task force found this incredible that a minor would go unnoticed in the UK and the social services... Following the interview - duration of 30-40 minutes - the task force upon their request were supplied copies of the driving licence false date of birth and details of the [National Insurance number]... The subject was compliant with the interviewers but was asked to tell the truth - for which the subject interjected that he did not know Nigeria. He also failed to disclose any association with Nigerians in the UK - although our investigation ties him to the Anyanwu family in Manchester and a Nigerian national who lived in the London area. Again - when asked about his mother and father - the subject failed to give a comprehensive answer - reiterating that he was from a dysfunctional family.
Immediately following the interview I asked the Nigerian officials for their opinion. They both stated to me 'we know him ... we know who he is.' They would not elaborate further. We await the task force consideration and decision on this subject."
Mr O'Callaghan says, understandably, that the Secretary of State is placing too much reliance upon these words - particularly where the comment "we know him ... we know who he is" was made two months ago now, and it does not appear that any further progress has been made. But it is, in my judgment, significant. It has to be seen in the context not only of Mr Chuck's lack of co-operation and the nature of his offending, showing himself to be a thoroughly dishonest individual, but that from October 2013 significant strides were being taken in ascertaining the identity of Mr Chuck.
In my judgment, the Home Office had, by the end of 2014, got to a stage that it is highly likely that Mr Chuck is Nigerian. That conclusion is strongly supported by the reaction of the Nigerian task force. Whilst it cannot be said with any certainty what was meant by those words "we know him ... we know who he is", as the task force would not elaborate at that time anything further, I do not consider it inherently unlikely that they know who he is.
Subsequent to that interview was the development of the phone call from the youngest daughter of Rosita Anyanwu, Diane Anyanwu. In that conversation, Diane said she was aware of a man calling himself "S Chuck" who had brought distress to the family. She was of the opinion that the subject is a fraud, and that from a recall of conversations in the family home his accent was Nigerian. She was unable to shed any light as to why her mother would want to visit him in detention or elaborate on the statement by her mother that her husband had agreed to lend significant sums to Mr Chuck's parents when he was holidaying in Nigeria. Nor was she able to comment on the statement by Mr Chuck that he had given the family substantial funds for the late Emmanuel Anyanwu's funeral which took place in Nigeria. The contents of that telephone conversation, which is recorded as having taken place in February 2015, is a connection with Mr Chuck and knowledge of him and an understanding that he is Nigerian.
Mr Thomann, quite correctly, would not be drawn on being able to say precisely when the Secretary of State might actually be in a position to deport. He referred to a high-level meeting taking place in the very near future, possibly at around this time, and on that occasion the situation of Mr Chuck and others being discussed.
While it would be wrong to speculate as to precisely when identification might take place and when emergency travel documents might be issued, it is clear to me, having considered all the evidence available and the information recorded in the files, that Mr Chuck's detention is currently lawful in accordance with the Hardial Singh principles, as elucidated by Lord Dyson SCJ in Lumba. I will not be ordering the release of Mr Chuck. He has, as has been said, brought much of his current predicament upon himself. He has persistently and wilfully failed to co-operate and has done all that he can to ensure that the Secretary of State has been unable to identify who he truly is.
Given his previous offending and the comments made in the sentencing judge's remarks, that judge having much fuller facts in front of him than are available to me, I have no doubt that he is a thoroughly dishonest individual, and that dishonesty has persisted in the way that he has behaved during his period of detention. He has been content to remain in detention for this time, not providing any assistance as to his true identity, and his account changing over time, most recently changing in light of the actions of the Secretary of State tracking down and interviewing the family in Manchester and thereby obtaining more information about him.
While I have come to the clear conclusion that in light of the recent steps taken and the breakthrough on the part of the Secretary of State in identifying Mr Chuck so that the four principles in Hardial Singh and Lumba are currently met, I must also consider whether there was any period, additional to the period between March and July 2013 during what has been a lengthy detention that the Secretary of State failed to lawfully detain.
It is not in dispute that the Secretary of State has throughout intended to deport Mr Chuck and that is the purpose of the detention. The issues are whether he has been detained for a period that is reasonable in all the circumstances; whether, before the expiration of a reasonable period it has become apparent that the Secretary of State will not be able to effect deportation so that the power of detention should not be exercised; and whether the Secretary of State has acted with reasonable diligence and expedition to effect removal.
It seems to me that what saves the Secretary of State from a finding either that Mr Chuck has not been detained for what is a reasonable period, or that it became apparent within that reasonable period that she would not be able to effect deportation within a reasonable period, is that, unlike in both the cases of Sino and NAB, the Secretary of State was not entirely reliant upon the Claimant becoming compliant and providing information. In addition to relying upon Mr Chuck relenting and providing the Secretary of State with the information she requires so as to be able to identify him, she has herself been able to undertake enquiries through her officers (albeit that those enquiries have not been without difficulty) in order to identify Mr Chuck and his nationality. In the circumstances of this matter, the Secretary of State never got to a stage where it could be said that a reasonable period had expired (there being no hard and fast rule as to what a reasonable period might be), nor that it had become apparent that she would not be able to deport within a reasonable period.
The further issue I must consider is whether there came a time when the Secretary of State was failing to act with reasonable diligence and expedition to effect removal.
Back in July 2011, Mr Chuck was served with a letter advising him as to his liability to automatic deportation, and in October 2011, in response to Mr Chuck's representation that he had his own properties, he was asked then, through his representatives, to provide documentation supporting his claim to be a British citizen. The decision to detain was made in March 2012, and through 2012, looking at the papers before me, enquiries were being undertaken by the Secretary of State, including nationality interviews. Investigations were then being undertaken that he might be Jamaican in light of the visitors he had.
By March of 2013 the deportation order was signed and served, and there was then the gap in the reviews taking place which, as was noted by an officer on behalf of the Secretary of State, was "extremely concerning". Steps were still being undertaken to investigate Mr Chuck's nationality in the face of him providing no assistance, and the Secretary of State continued to seek further information. I do not consider that the Hardial Singh principles had been breached by July 2013, so any damages that might arise from that failure to review would only be nominal.
The checking of visitor records and the wet fingerprints were taken in August 2013. Whilst that did nothing more than establish that he had not committed any offences in Europe, it does evidence the fact that ongoing checks were being undertaken in an attempt to ascertain who Mr Chuck is and what his nationality is. I accept that the Secretary of State was trying to find out whatever she could about him, that those steps were ongoing and that those steps were properly diligent. By October 2013, having initially thought he was Jamaican, he was identified as probably being West African. That led to the interview of the family in Cheetham Hill in May 2014 and the further information obtained there about links with Nigeria.
All those investigations and the steps being taken by the Secretary of State have to be seen in the context that Mr Chuck was, through this time, drip feeding information to the Secretary of State for the purpose of establishing that he was British. That drip-fed information was being investigated, and what was being revealed were his connections with Nigeria. It is difficult in that context to say that the Secretary of State was not acting with reasonable diligence and expedition. Of course, it is possible to say that interviews could have taken place sooner and some steps could have been taken sooner, but that, in my judgment, does not mean that the Secretary of State in all the circumstances was not acting with reasonable diligence.
It is from the interview in May 2014 that the Secretary of State's officers obtained for the first time a credible, if partial, biography for Mr Chuck. Thereafter, from May 2014, and possibly connected with the threat and then ongoing judicial review proceedings being progressed properly by his solicitors, the Secretary of State is acting with all due diligence and expedition to effect removal.
Consequently, even though, as I have said, there was a failure to carry out reviews as they ought to have been carried out in the period from March to July 2013, that does not give Mr Chuck any more than a right to nominal damages. In my judgment, the Hardial Singh principles have been met throughout the period of Mr Chuck's detention.
However, it is coming to the time, that breakthrough having taken place by reason of the interview with the family in Manchester in May 2014, and then, more significantly, the interview with the Nigerian task force in January 2015, that the Secretary of State will need to deport in order for deportation to be within a reasonable time. If the Secretary of State does not obtain information within a relatively short period of time which will enable her to obtain emergency travel documents, then it will be apparent that she is not able to effect deportation within a reasonable period and she should not, in those circumstances, seek to continue to exercise the power of detention. To mimic what was said by Singh J in Badah, it is not for me to bind the hands of a future court. But quite clearly, one is getting to the point where the continued detention will be unreasonable. It is not, in my judgment, unreasonable at this time.
Without binding the hands of any future court, it seems to me that if, by the end of May of this year, the Secretary of State is still not in a position to obtain emergency travel documents, and move to deport, then ongoing detention is likely to be unlawful. That determination of course will be a matter for others, and, of course, circumstances can change in the interim. As was set out by Lord Dyson in Lumba:
"There must come a time when, however grave the risk of absconding and however the grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation."
Whilst that time has not yet come, it will come soon. Consequently, I order permission to judicially review, but the review itself is dismissed save for that period where the Secretary of State failed to comply with her obligations to review between March and July 2013.
MR O'CALLAGHAN: I am grateful, and if you are content, I am sure my learned friend and I can draft an order to be with you. early next week.
JUDGE WALDEN-SMITH: I am very grateful.
MR THOMANN: My Lady, I am also grateful and I will pass particularly those final observations on.