Belfken, R (On the Application Of) v Secretary of State for the Home Department

Introduction

The Claimant is a 27 year old Moroccan national. On 5 March 2005, at the age of 15, the Claimant entered the United Kingdom. Shortly after his arrival, he claimed asylum. This claim was refused, but the Claimant was granted Discretionary Leave to Remain until his 18^th birthday. For reasons which I explain below, on 4 February 2008, the Claimant was made subject to a deportation order.

The Secretary of State detained the Claimant, pursuant to immigration powers, from 12 July 2016 until 3 May 2017. This is an application for judicial review of the lawfulness of this period of detention. Permission was granted by Sir Wyn Williams, sitting as a High Court Judge, at an oral hearing on 2 March 2017.

In these proceedings, the Secretary of State has acknowledged that from 7 September 2016 onwards the Claimant’s detention was unlawful. This concession has been made on the basis that the Secretary of State accepts that, throughout the period from 7 September 2016 to 3 May 2017, there was no realistic prospect of removal of the Claimant within a reasonable period.

In light of this concession, the remaining issues between the parties are (i) whether the Claimant’s detention between 12 July 2016 and 7 September 2016 was lawful; (ii) whether the Claimant should only be entitled to nominal damages in respect of his unlawful detention between 2 March 2017 and 3 May 2017, in view of his expressed wish to remain in detention until suitable bail accommodation was available for him; and (iii) the quantum of damages that should be awarded.

The Facts

The Claimant has an appalling offending history. Prior to the Secretary of State’s decision on 4 February 2008 to make a deportation order against him, the Claimant had been convicted of the following offences:

The Claimant’s custodial sentence came to an end on 8 February 2008. He remained in immigration detention for a period of three years and one month, until his release on bail on 9 March 2011. The only barrier to the Claimant’s removal has been his lack of travel documentation.

During this first period of immigration detention, three unsuccessful attempts were made to obtain an emergency travel document (“ETD”) for the Claimant from the Moroccan Embassy:

Following his release on 8 March 2011, the Claimant failed to report from 16 May 2011 onwards and, whilst on bail, he resumed his criminal activities. He was arrested on 26 May 2011 and subsequently received the following further convictions and sentences:

The Claimant’s 12-month custodial sentence concluded on 23 December 2011, at which point he was detained for a second time pursuant to immigration powers, for the purpose of effecting his deportation. The Claimant filed a judicial review claim on 18 May 2012. The matter came before Beatson J for an oral permission and interim relief application: [2012] EWHC 2932 (Admin). The judge observed:

“4.

…His immigration detention commenced at the end of his most recent period of custody on Christmas Eve 2011. Further attempts were made by the defendant to obtain travel documents. On 24 April 2012 the claimant attended at the Moroccan embassy for a face-to-face interview. The defendant had provided the claimant’s fingerprints to the Moroccan authorities in January following a request. But the outcome of the interview in April was that the embassy informed the defendant that the claimant was not known in Morocco from the fingerprints submitted and they were unable to confirm his nationality in the interview.

…

9.

I have concluded that, on the basis of the material before me, taking into account the three-year period of detention between 8 February 2008 and 9 March 2011, and the failure to obtain any travel documents in that period, that the very exiguous material as to the defendant’s efforts in respect of the more recent period of detention do not begin to address the burden of proof on her. That is not to say that that burden of proof may not be satisfactorily discharged when there is a proper explanation of the difficulties and why it is that the defendant considers that the Moroccans have rejected the claimant. It may be that notwithstanding the absence of fingerprints and notwithstanding [the] result of the face-to-face interview, there is nevertheless a reasonable prospect of removal in a reasonable period.

10.

Accordingly, permission is granted to challenge the legality of the period of detention since Christmas Eve 2011. It may turn out that part of that period is lawful, and that the real issue will be the lawfulness of the detention after the April 2012 face-to-face interview with the Moroccans.

…

14.

Having granted permission for the more recent period, I turn to the application for the claimant to be released forthwith. The parties have discussed the possibility that release would be ordered. A suitable address has been agreed. … I have serious concerns about releasing this claimant. His history is a very unattractive one. He has a large number of offences which must have caused distress to his victims. I had very little detail of those offences. I am told that he also has adjudications in respect of his period in prison. Nevertheless, in view of the state of the evidence against a background of a failure to obtain travel documents over a three-year period, and then the lack of progress that I have described over the last seven months, I consider that the claimant is entitled to the interim relief which he seeks pending the determination of the court.”

It can be seen that during this second period of immigration detention, a fourth ETD application was made. For the first time, on 24 April 2012, the Claimant attended a face-to-face interview with the Moroccan authorities. Nevertheless, the ETD application was again rejected.

It is readily apparent that Beatson J was very reluctant to release the Claimant, recognising the high likelihood he would commit further offences. But there was such scant support for the Secretary of State’s contention that there was, at that time, any prospect of removing the Claimant within a reasonable period, that Beatson J reached the firm view the Claimant had to be released at the interim stage.

Accordingly, the Claimant was released from detention on 12 July 2012, subject to a restriction order and electronic monitoring. The judicial review proceedings were subsequently settled on terms confidential to the parties.

Within days of his release, on 16 July 2012, the Claimant breached his electronic monitoring condition and he resumed offending:

The Claimant was in criminal detention from 22 December 2012 until 18 March 2013, at which point he was detained pursuant to immigration powers for a third time. The Claimant again brought a judicial review claim challenging the legality of his detention and seeking his release. On 9 July 2013, he was granted permission to proceed, but refused interim relief. Following a substantive hearing, HHJ Davis, sitting as a Judge of the High Court, ordered the Claimant’s release within 24 hours: [2013] EWHC 4658 (Admin). The Judge accepted the Secretary of State’s contention that there had been a realistic prospect of removing the Claimant, within a reasonable period, throughout the period from 18 March 2013 to 12 August 2013. However, the Claimant’s detention from 13 August 2013 until his release on 19 September 2013 was unlawful because, throughout this time, there was no realistic prospect that he would be removed within a reasonable period. The Judge found that the Claimant was entitled to substantial damages in respect of this period. Separately, the Judge also found that the Claimant’s detention was unlawful from 18 March 2013 to 3 July 2013 because it was not until 3 July that it was authorised in the appropriate manner under the immigration provisions, but he held that the Claimant would only be entitled to nominal damages in respect of this earlier period. The parties subsequently reached an agreement in respect of quantum.

In the course of his judgment, HHJ Davis said:

“19.

The Secretary of State was entitled, as of the 18^th 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. …

20.

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…”

The face-to-face interview, to which HHJ Davis referred, was his second such interview by the Moroccan authorities. It took place on 7 June 2013, in the context of the fifth ETD application submitted in respect of the Claimant. The evidence does not reveal when the Moroccan authorities rejected this application, but no ETD was issued, so it is clear the application was unsuccessful.

Following his release on 19 September 2013, the Claimant yet again resumed, and indeed escalated, his offending:

It appears from the sentencing remarks of the judge, following the last set of convictions, that each of the burglaries involved entering domestic premises at night whilst the residents were sleeping. He described one of the burglaries in which the Claimant “had the audacity to be in [the victim’s] bedroom at 4.15 in the morning while he was asleep while you were going through his personal property in the wardrobe. He woke up and gave chase. You dropped the torch. You were implicated by DNA on that torch and you have made some admissions. The case against you is overwhelming.” The sentencing judge also observed that the Claimant has “no business here at all of a lawful sort and there is no public interest in keeping you here whatsoever. I can see no reason why the Home Secretary would not exercise her duty - and it is a duty - to deport you.”

The Claimant served a period of imprisonment in 2014, pursuant to the 4-month sentence identified in §17 above. He was released on reporting restrictions on 1 May 2014 and he failed to comply with those restrictions. The Claimant was then held in criminal detention again from 9 January 2015 until 12 July 2016, serving the 3-year term.

On 30 June 2016, whilst the Claimant was still serving his custodial sentence, a sixth ETD application was sent to the Moroccan Embassy. On 12 July 2016, the Claimant was detained for a fourth time pursuant to immigration powers. It is this fourth period of immigration detention that is the subject of the claim before me. The GCID record includes a minute of the decision to detain him, dated 6 July 2016. In some respects, the minute is detailed. It sets out the Claimant’s immigration history and offending history at length. The authorising officer stated:

“7.

Assessment of risk of absconding.

Extremely high. Mr Belfkeh has entered the UK by clandestine means and has not attempted to regularise his stay here. He absconded from Local Authority care aged as young as 15. He has 13 convictions for failing to adhere to Court orders and answering police bail. Furthermore, he fails to report when required when granted Temporary Release or bail and, on a regular basis when electronically tagged, he failed to adhere to curfew times.

It is considered that he will immediately abscond and certainly fail to report for removal when required.

8.

Assessment of re-offending.

Extremely high. As detailed above, Mr Belfkeh has an appalling criminal history. He appears to offend as soon as he is released from his previous custodial sentence. There is no confidence to be had in believing that this latest period of imprisonment is his last. It is noted that his latest offence has increased his offending in severity tenfold. He appears to offend to fuel his drug habit and there is no evidence before us to show that he addressed his addictions while in prison. He is highly likely to offend to support himself and his drug habit.

9.

Assessment of risk of harm to the public.

High. Mr Belfkeh’s most recent offences involved breaking into people’s residences whilst they slept and was carrying a weapon with him during these crimes. He has also previously been convicted of carrying an offensive weapon and has twice assaulted a constable. Knowing him to be a drug addict his moods will be extremely unpredictable and this and his entering properties and people slept indicates a high risk of harm.

…

Given his terrible immigration history, Mr Belfkeh is considered highly likely to abscond as soon as he is released. He ignores police bail requirements; court orders, immigration reporting requirements and frequently breaches his tagging conditions. He has no relatives present in the United Kingdom and is normally listed as no fixed abode. This further enforces the belief that he will immediately abscond. There is little, if any, chance, of him reporting for removal when required.

His offending history is atrocious. He has amassed 21 convictions for 41 offences in 11 years and this includes a period of 4 years between 2007 and 2011 when he was either out of the country or had not been caught.”

(I interpose that he was in fact in detention during most of the 4-year period referred to, however, that only reinforces the point made by the authorising officer. I also note that although the claim has been brought in the name “Belfken”, the surname the Claimant had provided to the Secretary of State – or one of them – was “Belfkeh”.)

“The seriousness of his offending has risen markedly and he is now considered a high threat to members of the public due to him carrying weapons and the volatile nature of drug addicts. It is proposed that he be maintained pending the outcome of his forthcoming ETD interview and the progression of his deportation.”

However, the minute of decision is considerably less detailed when addressing the barrier to the Claimant’s removal. It states:

“6.

Current barriers to removal (including documentation and compliance)

The grant of an ETD is the only barrier to his removal. Numerous ETD interviews and face to face interviews have failed to produce a document. He is to be put forward for the next Moroccan interviews on 12 July 2016 at Brook House.

…

When do we expect a travel document/EU letter to be issued?

1-3 month X

3-6 months

6+ months”

Although it was initially hoped that the Claimant would be interviewed by Moroccan officials on 12 July 2016, it had been indicated on 5 July that this would not be possible. Instead he was interviewed, for the third time in person, on 7 September 2016.

The GCID record includes the following note made on 7 September 2016:

“Subject was seen today for the Moroccan interview scheme. The subject was interviewed by the Moroccan official who advised that the subject was unable to provide any supporting evidence and investigations would have to be carried out in Morocco.”

History of the proceedings

A pre-action protocol letter, challenging the Claimant’s detention, was sent by the Claimant’s solicitors on 25 September 2016. The Secretary of State provided a substantive response on 10 October 2016. It was said that the:

“…processes in the Home Office in respect of removals are far advanced since 2008. There is no correlation in the fact that your client has been awarded damages previously and the current prospect of removal.

…

The Returns Logistic department (RL) of the Home Office are fully focused on working with the Moroccan authorities in obtaining Emergency Travel Documents. There have been 37 long outstanding applications with the Moroccans. Your client’s application is on that list. RL have recently successfully secured agreement on 25 of those 37 cases and are working urgently to clear the further 12.”

The claim was filed on 22 December 2016 in the Administrative Court at Birmingham, together with an application for urgent consideration. It was transferred by an (undated) order of HHJ David Cooke, sitting as a Judge of the High Court, to the Administrative Court at the Royal Courts of Justice. The Secretary of State’s acknowledgment of service and summary grounds of defence were filed on 14 February 2017 (nearly eight weeks after the claim was filed), indicating the Secretary of State intended to contest all of the claim.

At an oral hearing on 2 March 2017, Sir Wyn Williams, sitting as a Judge of the High Court, granted permission and adjourned the application for interim relief. In accordance with the Judge’s order, the interim relief application came back before him on 21 March 2017. In respect of the Claimant’s application to be released, with the agreement of the parties, the Judge ordered:

“1.

The Claimant shall be admitted to bail no later than 4 April 2017 provided that a suitable residence has been identified and agreed between the parties by that date.

2.

The parties shall endeavour to agree the conditions for the Claimant’s release on bail pursuant to paragraph 1 above.

3.

In the event that agreement is reached regarding the Claimant’s release on bail and the release conditions the parties shall, within 24 hours, file and serve an order with the Court recording the agreed position. The Claimant shall not be released until that order has been approved by the Court.

4.

In the event that the parties are unable to agree the conditions for the Claimant’s release on bail the Court shall rule on conditions upon receipt of written submissions from both parties, such submissions to be lodged with the Court within 24 hours of it becoming apparent that agreement will not be reached.”

In the event, as a result of the time that it took the Secretary of State to locate suitable accommodation, the Claimant was not released until 3 May 2017.

The Secretary of State filed detailed grounds of defence on 5 June 2017, accompanied by an application for an extension of time (which was subsequently granted). In those grounds, the Secretary of State accepted that “the Claimant’s detention was not lawful from 7 September 2016 because there was there was no realistic prospect of removal within a reasonable period of time”.

The legal framework

Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”.

Section 32 of the UK Borders Act 2007 provides:

“(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”

The Claimant is a “foreign criminal” as defined in s.32(1) of the Borders Act 2007 and s.117D(2) of the Nationality, Immigration and Asylum Act 2002 because he is not a British citizen and he has been sentenced to a period of imprisonment of more than 12 months.

Section 33 of the UK Borders Act 2007 provides an exception to the requirement that the Secretary of State must make a deportation order against a foreign criminal, in circumstances where deportation would breach a person’s rights under the European Convention on Human Rights. However, there has never been any suggestion that this case engages any exception.

The Secretary of State’s power to detain the Claimant, as a person who is subject to a deportation order, is provided by para 2(3) of Schedule 3 to the Immigration Act 1971. The power to detain is subject to the common law limits, first described by Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (‘the Hardial Singh principles’), as endorsed and encapsulated by Lord Dyson JSC in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at [22]:

The focus of the present claim is on the third Hardial Singh principle. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, at [47], Dyson LJ explained:

“Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”

In R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ observed at [45]:

“…there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty.”

As Richards LJ put it in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112:

“64.

… What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case.

65.

… Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, 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. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors.”

The risk of absconding, the risk of committing further offences, and the gravity of the offences likely to be committed, if a person subject to a deportation order is released, are weighty factors when assessing whether the prospect of removal is sufficient.

A further potentially relevant factor is a lack of cooperation, on the part of the foreign national offender, with the Secretary of State’s efforts to remove him. A risk of absconding may, depending on the circumstances, be inferred from a refusal to return voluntarily: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, at [123]. In addition, “it is likely, other things being equal, that a reasonable period for the detention of an individual who does not cooperate in obtaining a travel document may well be longer than it will be in the case of an individual who cooperates. 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 hope of obtaining, and unsuccessful attempts to obtain, a travel document)”: R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin), per John Howell QC (sitting as a Deputy High Court Judge), at [56]; and see R (Kajuga) v Secretary of State for the Home Department [2017] EWCA Civ 24, per McFarlane LJ at [50].

Nevertheless, the significance of a lack of cooperation, beyond its potential relevance to the absconding risk, must be limited, and it should not be regarded as a “trump card” justifying detention indefinitely: see Sino at [56], and Kajuga at [49]-[50]. The Claimant accepts that obstructive conduct is a factor, but Mr Denholm contends - correctly, in my view - that it may cut both ways: whilst such behaviour may increase the reasonable period during which efforts are made to obtain an ETD and secure removal, if such obstruction is shown to be a complete barrier to removal then it would follow that there is no realistic prospect of removal.

The first issue: Was there a realistic prospect of removal of the Claimant?

It is common ground that if, during the period 12 July 2016 to 7 September 2016, there was no realistic prospect of the Claimant being deported within a reasonable time, then the whole of this fourth period of immigration detention was unlawful.

The Claimant has an abysmal offending history, and a long record of failure to comply with the conditions on which he has been released. There can be no doubt that the risks of him re-offending and absconding, on release, were extremely high. Although his convictions were not for offences at the very gravest end of the spectrum, they were serious and the gravity of his offending had been increasing. He was rightly assessed, in July 2016, as presenting a high risk of harm to the public.

In addition, the Secretary of State contends - and I accept - that the Claimant has not been cooperative and, more than that, has been actively obstructive of her efforts to secure his removal. In this regard, Miss Barnes made reference to the following:

The Claimant has no lawful right to remain in the United Kingdom and he should leave. As he has not left voluntarily, it is strongly in the public interest that the Secretary of State should deport him, if possible. Bearing each of the factors I have referred to above in mind, the reasonable period for which the Secretary of State could lawfully detain the Claimant, if there were a realistic prospect of removing him during that period, would be relatively long.

Nevertheless, the right to liberty is of fundamental importance. It should be recalled that before this fourth period of immigration detention began on 12 July 2016, the Claimant had already been subjected to administrative detention for a total of 4 years and 2 months, since February 2008. The Administrative Court had already, by then, ordered his release twice, on the grounds that there was no realistic prospect of his removal within a reasonable period.

The Secretary of State only had the power to place the Claimant in administrative detention, after he had served his custodial sentences for the offences of which he has been convicted, if there was some prospect (which means a realistic prospect) of his removal within a reasonable period. In my judgement, the Secretary of State has failed to establish that there was any realistic prospect of the Moroccan authorities providing the Claimant with an ETD, so as to enable his removal within a reasonable period.

Since May 2008, five applications had been submitted to the Moroccan Embassy for an ETD for the Claimant. Each application had been refused. The primary method that the Moroccan authorities use to identify a person as Moroccan, namely checking their fingerprints against the Moroccan database, has failed. The Claimants’ fingerprints are not on the Moroccan database. This appears to be because he left Morocco as a child, before the age at which such biometric data is collected.

In R (Mjemer) v Secretary of State for the Home Department [2011] EWHC 1514 (Admin), there is reference at paragraph 33.6 to an email, dated 26 April 2010, in which an official at the British Embassy in Rabat stated, “there is only one way to establish if a person is Moroccan and that is through their fingerprints”. Whilst I accept that this appears to be the primary and most effective method of establishing a person is Moroccan, it would be very surprising (as Mr Denholm sensibly accepted) if it were the only way of establishing Moroccan nationality. So I would accept that there could, in principle, be a sufficient prospect of securing an ETD for the Claimant, despite the fact that his fingerprints are not on the Moroccan database.

Nevertheless, given the five unsuccessful attempts to obtain an ETD for the Claimant, the question must be asked: what basis did the Secretary of State have for considering there was a realistic prospect of the sixth ETD application, submitted on 30 June 2016, succeeding?

The contemporaneous minute of the decision to detain the Claimant on 12 July 2016 noted that “[n]umerous ETD interviews and face to face interviews have failed to produce a document”. The authorising officer ticked a box to indicate it was expected an ETD would be issued in 1-3 months, but no reason was given for thinking the 6^th ETD application might succeed where the previous five attempts had failed.

In these proceedings, it has not been suggested that any new evidence was provided to the Moroccan authorities with the 6^th ETD application. The Secretary of State relies on the fact that three years had passed since the Claimant had last been interviewed. It is suggested that there was a realistic prospect that (a) the Moroccan officials interviewing the Claimant might take a different approach or otherwise reach a different view; (b) the Claimant might reveal to the Moroccan authorities more information or evidence than he had previously, enabling them to establish his nationality; and (c) the Moroccan authorities might themselves, during the previous three years, have uncovered evidence of the Claimant’s nationality.

None of these suggestions, considered individually or cumulatively, establishes a realistic prospect of the 6^th ETD application succeeding:

In relation to the first of these points, the Secretary of State relies on the note in the detention review dated 7 October 2016 that “on 3 October 2016, contact was made with Returns Logistics who advised that significant progress had ‘recently been made’ with the Moroccan authorities who had cleared 25 of the 37 long term outstanding ETD applications and confirmed that [they] were working on the further 12. Mr Belfkeh’s application is within those 12. Hopes are raised that a document will be issued now within a reasonable timescale”.

The Claimant points out that this note came into existence after the point in time at which the Secretary of State has conceded there was, in fact, no realistic prospect of removing him within a reasonable period. The Claimant relies on the observation of Lord Thomas CJ in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 at [42] that in determining the lawfulness of the decision made by the Secretary of State to deprive a foreign national offender of his liberty pending deportation,

“the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision of the court is necessarily ex post facto, the court does not take into account matters that subsequently occurred.”

This is obviously the right approach, save that I would respectfully add one caveat. In my judgement, subsequent evidence may potentially be of some value in confirming the appreciation that the Secretary of State had earlier formed: cf. the approach of the European Court of Human Rights when assessing whether there were substantial grounds for believing that returning a person would expose that individual to a real risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights – see e.g. Vilvarajah v United Kingdom (1992) 14 EHRR 248 at [107].

I have not, therefore, by reason of its date, dismissed this evidence as irrelevant in assessing whether, during the period that the Secretary of State contends the Claimant’s detention was lawful, there was a realistic prospect of his removal. It may be said, with considerable force in my view, that the Government has extensive experience and particular expertise in dealing with the authorities of foreign states. If there was evidence that the Secretary of State’s assessment, when detaining the Claimant on 12 July 2016 or in the period up to 7 September 2016, was that there was a realistic prospect of the Moroccan authorities now granting ETD applications in cases where they had previously not done so, subsequent evidence showing this prediction was well-founded (albeit not in the Claimant’s case) would be of value.

However, the Secretary of State has not adduced such evidence.

First, there is no evidence that when making the decision to detain, or in continuing to detain the Claimant up to 7 September 2016, the Secretary of State considered there was any reason to believe the Moroccan authorities were now taking, or would now take, a more positive approach to ETD applications such as that in respect of the Claimant.

Secondly, the Secretary of State accepts that although the note of 7 October 2016 suggested hopes were now raised of an ETD being issued for the Claimant, objectively, there was not in fact a realistic prospect of that occurring, at that stage. If it is accepted, as it is, that receipt of this information did not give rise to a realistic prospect of the Claimant being removed within a reasonable period, it is hard to see how it can assist in demonstrating that such a prospect existed during the earlier period.

Thirdly, the bare evidence that 25 of 37 long term outstanding ETD applications to the Moroccan authorities had been cleared does not assist in assessing whether there was a realistic prospect of the Claimant being granted an ETD.

The Claimant’s statement of facts and grounds had expressly asked for further information in this regard at §8 (and the point was reiterated in the Claimant’s skeleton argument):

“The Defendant is further asked to provide copies of her current internal guidance on obtaining travel documents to effect removal to Morocco, and a full account of the current timescales for obtaining Moroccan emergency travel documents. To the extent that it is relied on by the Defendant, she is also asked to provide a full account of the steps being taken by her Returns Logistics department to resolve old and problematic Moroccan cases.”

The Secretary of State has not adduced any evidence on this issue. Consequently, there is no evidence before me as to the circumstances or timing of the grant of ETDs in any of the 25 cases to which reference was made. In particular, there is no evidence – and I am not prepared to assume – that ETDs were granted in cases where they had previously been refused by the Moroccan authorities (let alone refused on five occasions).

The Secretary of State sought to place reliance on the approach taken by HHJ Davis at [19], where he said:

“The Secretary of State was entitled, as of 18^th March to make a further effort to effect the deportation of Mr Belfken. … 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.”

Miss Barnes submitted that in view of the public interest in removing the Claimant, the Secretary of State was entitled on this occasion, too, to make a further effort to effect his deportation, by arranging another interview. The only alternative would be to give up on seeking his deportation and that would be contrary to the public interest.

It does not follow from HHJ Davis’ finding that there was a sufficient prospect of removal of the Claimant on 18 March 2013 that there was such a prospect on 12 July 2016. The circumstances on 12 July 2016 (i.e. before the latest period of immigration detention began and before the Claimant’s 3^rd interview) were not the same as they had been on 18 March 2013: (i) the number of failed ETD applications had increased; (ii) the number of rejections following face-to-face interviews had doubled; and (iii) the period that the Claimant had already spent in immigration detention had increased by six months.

For the reasons I have given, in my judgement there was no realistic prospect on 12 July 2016, or at any time thereafter, of removing the Claimant. Accordingly, his detention was unlawful throughout the period from 12 July 2016 until 7 September 2016, as well as, as is conceded, from 7 September 2016 until his release on 3 May 2017.

I should emphasise that, although it has not yet proved possible to deport the Claimant, he remains liable to deportation. Efforts to obtain better evidence demonstrating his Moroccan nationality do not have to cease because he is not held in immigration detention. Moreover, circumstances may change. The fact that there was not, in my view, any realistic prospect of removing the Claimant during his most recent period of immigration detention does not mean that such a prospect may not arise again in the future.

The second issue: nominal or substantial damages from 2 March 2017?

I can address the second issue more shortly. The Secretary of State accepts that the Claimant’s detention from 2 March 2017 until 3 May 2017 was unlawful. This unlawfulness was not due to a flaw that made no difference to the length of the Claimant’s detention. It is admitted that there was no realistic prospect of removing the Claimant within a reasonable period and so the Secretary of State did not have the power to detain him.

Nevertheless, the Secretary of State contends that the Claimant should only receive nominal damages in respect of this final phase. The Secretary of State’s skeleton argument explains: “This is because the Claimant said, at the two hearings before Sir Wyn Williams on 2 March 2017 and 21 March 2017, that he did not want to be released until a suitable bail address had been identified”.

I do not accept the Secretary of State’s submission.

First, this is a period of two months during which the Claimant has been detained by the executive, when he should not have been. As a matter of principle, he is entitled to substantial, rather than nominal, damages in respect of such a period. There is no onus on the Claimant to establish that the Secretary of State failed to act with sufficient diligence in providing him with suitable accommodation to enable his release. It is sufficient that he has established that he was unlawfully detained. The remedy – much speedier provision of suitable accommodation – lies in the Secretary of State’s hands.

Secondly, the Claimant’s legal representatives (as well, I should say, as those for the Secretary of State) were praised by Sir Wyn Williams for the “practical common sense” they displayed in agreeing that, rather than being released on unconditional bail, the order should be conditional, providing for the Claimant’s release into approved accommodation. If I were to award the Claimant only nominal damages in respect of this period, it would not be possible for claimants’ legal representatives to take such a sensible approach in future because doing so would be adverse to their clients’ interests. It would be contrary to the public interest, in my view, to discourage those who present a risk to the public, and their representatives, from agreeing sensible directions for their release into suitable accommodation. There is also a danger that the Secretary of State would act with less urgency to release an offender from unlawful detention if there were no cost (in terms of substantial damages) attached to continuing the detention.

Thirdly, the Claimant agreed to conditional release in the expectation that he would be released much more speedily than, in the event, occurred. It is apparent from the transcript of the hearing on 21 March 2017 that there had been some delay on the part of the Home Office in dealing with the Claimant’s application for accommodation. Counsel for the Secretary of State apologised for the delay and indicated that it was “hoped a decision can be made imminently. I know sometimes a court hearing concentrates the mind and I know they have been working very hard on it this morning”. Sir Wyn Williams anticipated that at “a point in time in the not-too-distant future, by which I mean days, I imagine that it is going to be said that the claimant should be released. What are the practicalities of this now?” Counsel for the Secretary of State put forward a proposal that the Claimant “be released within fourteen days once a Section 4 accommodation address has been agreed”.

The Secretary of State has suggested that the Claimant must bear some of the responsibility for the fact that accommodation was not provided earlier because he only made an application a few days prior to the hearing. However, as Mr Denholm has pointed out, the Secretary of State’s practice puts claimants in something of a bind when it comes to applying for s.4 accommodation prior to a bail hearing. Offers of such accommodation are, as a matter of standard practice, as reflected in the offer made in this case, only open for 14 days. If the applicant does not arrive at the accommodation within that period, the offer lapses. In these circumstances, it was reasonable for the Claimant to make an application relatively close to the hearing date, so as to ensure (as far as possible) that he would be able to take up any offer of accommodation within the 14 day period.

Against this background, it would not be fair, in my view, to deprive the Claimant of substantial damages in respect of the two months, from the first hearing before Sir Wyn Williams, that it took to secure his release.

The third issue: quantum

For the reasons I have given above, the Claimant is entitled to substantial damages in respect of the period 12 July 2016 to 3 May 2017 i.e. 295 days.

In MK (Algeria) v SSHD [2010] EWCA Civ 980 Laws LJ summarised the principles to be applied when assessing damages in a case of this type, in the following terms, at [8]:

“There are three general principles which should be borne in mind: 1) the assessment of damages should be sensitive to the facts and the particular case and the degree of harm suffered by the particular claimant: see the leading case of Thompson v Commissioner of Police [1998] QB 498 at 515A and also the discussion at page 1060 in R v Governor of Brockhill Prison Ex Parte Evans [1999] QB 1043; 2) Damages should not be assessed mechanistically as by fixing a rigid figure to be awarded for each day of incarceration: see Thompson at 516A. A global approach should be taken: see Evans 1060E; 3) While obviously the gravity of a false imprisonment is worsened by its length the amount broadly attributable to the increasing passage of time should be tapered or placed on a reducing scale. This is for two reasons: (i) to keep this class of damages in proportion with those payable in personal injury and perhaps other cases; and (ii) because the initial shock of being detained will generally attract a higher rate of compensation than the detention's continuance: Thompson 515E-F.”

It is common ground that the Claimant does not fall to be compensated for any “first shock”, having been detained following a sentence of imprisonment; and there are no aggravating features, so far as the Claimant’s experience of detention is concerned.

The Claimant submits that an appropriate award would be in the region of £52,000. The primary comparator he relied on to reach this figure was AXD v Home Office [2016] EWHC 1617 (QB), in which Jay J indicated that for a period of 11 months and 5 days’ false imprisonment he would have awarded £58,000 (i.e. for a period that was 44 days longer than the Claimant’s detention).

Factors which enhanced the award to some extent – and which are absent in this case - were:

At [41], Jay J observed, “Ultimately, the decision must be one of policy, calibrated with reference to the court’s sense of the overall justice of the case”.

In addition, the Claimant submits that the decision of Mr Leighton Williams QC, sitting as a Deputy High Court Judge, in Muuse v Secretary of State for the Home Department [2009] EWHC 1886 (QB), is a useful comparator. Mr Denholm acknowledges that the facts of Muuse were unusual, involving particularly egregious conduct by the Defendant: see [3]-[7], [71] and [107]. Nevertheless, he contends the egregious conduct was reflected in the separate awards of aggravated and exemplary damages, whereas the basic damages of £25,000 were intended to compensate for loss of liberty alone (see [111]-[113]). When the award of £25,000 is adjusted to reflect inflation, and to take account of the 10% Simmons v Castle uplift, it equates to £35,011 in respect of 128 days’ false imprisonment.

On 26 July 2012, the Court of Appeal gave judgment in Simmons v Castle [2012] EWCA Civ 1039, declaring that, from 1 April 2013, general damages in tort claims would be 10% higher than hitherto. The declaration implemented recommendations arising out of the Jackson reforms: see [7]. A second judgment was given on 10 October 2012: Simmons v Castle[2013] 1 WLR 1239. This modified the guidance which, in its final form states:

“Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO.”

The applicability of the Simmons v Castle uplift to false imprisonment claims has been accepted in practice (e.g. AXD), as well as by commentators (e.g. McGregor, 19^th edition with supplement, at 40.016).

Whilst I accept that the judge in Muuse sought to separate out the amount attributable to the egregious conduct from the basic award for loss of liberty, like Jay J in AXD at [41], I am not prepared to go as high as the judge in Muuse. Indeed, the Claimant did not submit that I should and realistically placed more weight on AXD.

The Secretary of State submits that the appropriate award would be in the region of £32,000. The primary comparator the Secretary of relies on to reach this sum is NS (Palestine) v Secretary of State for the Home Department [2013] CSOH 139. The Outer House of the Court of Session awarded £36,000 in respect of 12 months’ detention.

The submission that the Claimant should be awarded £32,000 was based on adjusting the sum of £36,000 awarded in NS (Palestine) for inflation to £38,000. In oral submissions, Ms Barnes accepted that adjusting for inflation, the figure should in fact be £38,968.

Mr Denholm submits that, if NS (Palestine) is treated as an appropriate comparator, the award should be uplifted by 10%, taking the adjusted award to £42,864. In a post-hearing note, Mr Denholm helpfully explained that NS (Palestine) was decided on 21 August 2013, when the Simmons v Castle guidance was already in force. As a matter of law, the Simmons v Castle uplift is not, therefore, applicable when considering the level of award given in NS (Palestine) because, when assessing damages, the Outer House ought to have applied the uplift itself to the comparators considered in that case.

However, it is apparent from the judgment in NS (Palestine), in particular the discussion of comparators at [30] to [33], that the court did not have the Simmons v Castle guidance in mind. As this was relatively soon after the guidance was issued, it seems probable that the parties inadvertently failed to bring it to the court’s attention. In these circumstances, the Claimant submits that, although Simmons v Castle does not apply as a matter of law to adjust the award made in NS (Palestine), the award is in fact 10% lower than it would have been if the court had applied Simmons v Castle. I accept that it is appropriate to apply a 10% uplift to the NS (Palestine) award when using it as a comparator. The effect of taking into account these adjustments is that the appropriate award proposed by the Secretary of State increases from £32,000 to about £34,645.

In addition, the Secretary of State relies on NAB v Secretary of State for the Home Department [2011] EWHC 1191 (Admin), in which Irwin J awarded £6,150 in respect of a period of 82 days’ unlawful detention. Adjusted for inflation and the Simmons v Castle uplift, this equates to £7,814. In NAB, Irwin J observed at [18]:

“The unusual situation here was that the Claimant chose detention in the United Kingdom over freedom in Iran. For the reasons I have given that does not impact upon illegality, however in my judgment it does mean that the appropriate level of damages must be very much lower than in most of the reported authorities and it seems to me should be markedly lower even than the appropriate compensation for a prisoner in the position of Ms Evans.”

As I have explained above, the Claimant has been uncooperative and obstructive. But I would not put the degree of obstruction he has displayed in the same category as the claimant in NAB. The Claimant has attended three interviews with the Moroccan authorities. He has taken part in a language analysis assessment. Although there is reason to believe that he may well be able to demonstrate his Moroccan nationality if he wished to do so, it cannot be said as starkly as it was in NAB that the Claimant chose detention in the UK over freedom in Morocco.

In my judgement, the appropriate compensatory award in this case should be £40,000. This reflects the length of his unlawful detention; the lack of any aggravating factors, or any egregious conduct on the part of the Secretary of State; and the overall justice of the case, bearing in mind the facts I have described above and the degree to which the Claimant has been uncooperative and obstructive.

Conclusion

For the reasons I have given, this claim for judicial review is allowed. The Claimant was unlawfully detained from 12 July 2016 to 3 May 2017. The Secretary of State is liable to pay the Claimant damages in the sum of £40,000.