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

In this case the Claimant, an Albanian national, seeks judicial review of the decisions of the Defendant to:

Refuse the Claimant’s asylum claim on 7 October 2015 and certify it without a right of appeal under section 94(1), Nationality Immigration and Asylum Act 2002 (‘NIAA 2002’);

Detain him for the purposes of determining his asylum claim and otherwise.

The essence of the Claimant’s complaint is that the Defendant processed the determination of the Claimant’s claim for asylum in the Detained Asylum Casework (“DAC”) and refused and certified it despite the fact that it concerns a blood feud in Albania and in particular despite the fact that he had sought extra time to produce further evidence.

The Claimant says that claims concerning blood feuds in Albania require external and corroborative evidence in order to be adequately ventilated in the view of the country guidance in EH (blood feuds) Albania CG [2012] UKUT 00348. He claims that the speedy determination of his asylum claim under the DAC precluded him from adducing relevant evidence.

It is also said that this Claimant’s case is uniquely compelling given that he is a “significant witness” in a perjury investigation concerning the family with whom he is engaged in a blood feud.

The Claimant was born in 1993. He left Albania towards the end of October 2013 and entered the UK clandestinely by lorry, arriving on 10 November 2013. He did so in order to pursue his relationship with his then partner, Ms X. This relationship had been established in Albania in the same year. Ms X and her family had obtained refugee status in the United Kingdom.

The Claimant says that he had wanted to enter the United Kingdom by obtaining the appropriate entry clearance, but Ms X and her family persuaded him not to do so, lest their own claim was scrutinised.

After his arrival the Claimant lived with the X family. It appears that the arrangement was not entirely harmonious. However his relationship with Ms X subsisted until February 2015 when the Claimant sought to terminate the relationship. On 28 February 2015 there was an altercation which culminated in Ms X’s mother stabbing the Claimant in his back and soon thereafter telephoning the police to falsely accuse the Claimant of seeking to stab her. In the fracas Ms X and her father also sustained some minor injuries. In the course of the argument, Ms X’s parents said that they did and would declare a blood feud against the Claimant because he intended to separate from Ms X.

The Claimant was arrested and charged with Actual Bodily Harm on 1 March 2015 and kept in remand for 6 months before being found not guilty at trial on 12 August 2015.

As a result of the outcome of that trial, the accounts given by the respective parties during that trial and the events that precipitated the charge, the Claimant is now assisting police with a ‘live’ investigation into perjury on the part of the X family.

On 26 August 2015 the Claimant made a claim for asylum. His screening interview took place on 10 September 2015. During that interview he claimed that he was the subject of a blood feud with his (now ex) partner’s family, that his ex-partner’s mother had attacked and threatened him with a blood feud and threatened his life, and that he could not return to Albania because her family “were big” there. He said that if he needed evidence from Albania he would get it. On 21 September 2015 his solicitors indicated that they needed to obtain evidence from the Claimant’s former solicitors and from the police regarding threats made against the Claimant. They also sought to reschedule his substantive asylum interview, which was duly done.

On 28 September 2015, the Claimant had a substantive asylum interview. In terms of the detail of that interview he said that the X family had jobs in government, but that he did not know the details. An uncle in the police in Tirana was mentioned. He referred to an earlier threat to his mother, but not to any subsequent threats to him or her. He indicated that in terms of further documentation he might have further documentation to submit from his court case.

In a Pre-Action Protocol letter dated 2 October 2015, the Claimant’s solicitors challenged his detention and explained that they were still waiting for documents from the Claimant’s former criminal solicitors and from the perjury investigation. No formal extension of time was sought but it was made clear that it was the Claimant’s case that no reasonable asylum decision could be taken while these pieces of information were missing. It was also noted that the investigating officer in the perjury case was prepared to “affirm the key aspects of his investigations” confidentially with the Home Office, though he could not currently disclose them to the Claimant.

The Claimant’s asylum claim was refused on 7 October 2015. No further documents from the Claimant’s criminal solicitors had been received at that time; nor had the Home Office had the confidential briefing on the perjury investigation. The claim was also certified pursuant to section 94 of the 2002 Act.

The key passages of the decision letter are set out below:

On 22 October 2015, the Claimant lodged his claim for judicial review. He was released on bail on 23 November 2015.

Summary Grounds of Defence were lodged on 13 November 2015. On 11 August 2016, following the making of the Court of Appeal’s order in Hossain and Others [2016] EWHC 1331 (Admin), the Claimant applied to amend his grounds of challenge. This was done in August 2016. No subsequent application for permission to amend was made.

On 23 November 2016, Peter Marquand (sitting as a Deputy High Court Judge) granted permission on the grounds mentioned above, refusing permission on a separate ground. The Defendant was ordered to file detailed Grounds of Relief on 29 December 2016.

Those were not served promptly, being served on 27 January 2017 following a retrospective application to extend time. On 6 February 2017 Master Gidden refused the Claimant’s application to adjourn the substantive hearing and set directions to the hearing date, including directions for service of skeleton arguments by both parties.

On 20 February 2017 the Claimant sought disclosure of documents including GCID records and detention reviews. On the 21 February 2017, when his skeleton argument was due, the Claimant indicated to the court that his case had not changed since service of the Amended Grounds for Judicial Review and the Detailed Grounds of Defence and that accordingly he did not intend to serve a skeleton argument.

On 28 February 2017 disclosure of the GCID records and detention reviews was provided by the Defendant to the Claimant (albeit partially redacted). The Defendant also on that date indicated to the Court that she too did not intend to file a skeleton argument, her position being adequately set out in the Detailed Grounds of Defence.

In addition to the Grounds for each side I was provided with the correspondence between 22 October 2015 and the hearing and the relevant judicial review and detention documentation, including the records of the Claimant’s interviews and the detention reviews, correspondence with the Metropolitan Police regarding the ongoing investigation for the perjury trial as well as counsel’s note for the criminal trial.

At the start of the hearing I indicated to both parties’ counsel that it was unacceptable for parties, in defiance of PD54A paragraph 15 and the Administrative Court Judicial Review Guide, (and in this case also of a specific Order of the Court) to fail to serve a skeleton argument. Even where the parties’ cases are adequately (and succinctly) set out in their Grounds, the court requires and is very much assisted by a skeleton which confirms the issues for the court, provides a reading list by reference to the hearing bundle and an estimate of reading time, together with an updated estimate of time needed for the hearing, including judgment where appropriate.

Service of skeletons, albeit late, might also have assisted as regards the new and unpleaded points upon which the Claimant sought to rely during the course of the hearing. One was a legal case on certification and one a new case on the legality of the initial detention arising from the 28 February disclosure. The Claimant also advanced a case on detention which amounted to a considerable expansion of a very skeletally pleaded point, relying on the 28 February 2017 disclosure. The Defendant objected to these points being run without notice.

I refused to permit the new points to be pursued, there being no adequate explanation for their being brought forward without any application notice, draft amendment or other notice - and the remainder of the hurdles which face late applications to amend not being met. The point which amounted to a late expansion of an existing ground, previously pleaded without any particularisation, I permitted; but subject to the service of supplementary written submissions, which of course has caused some delay in the disposal of this matter.

The Claimant reminds me that asylum applications are of such moment that only the highest standards of fairness will suffice: per Bingham LJ (as he then was) SSHD v Thirakumar [1989] Imm AR 402 at [414].

He contends that the refusal and certification of his asylum claim was unlawful because:

The Defendant failed to give the Claimant sufficient time to obtain important corroborative evidence from England arising out of his criminal matters, as well as expert evidence in support of his claim following investigations in Albania.

The Claimant’s claim of fear of persecution because of a blood feud in Albania is a claim which inherently requires external corroborative evidence in order to be established. It was submitted that this is clearly set out in EH (blood feud) Albania CG by reason of the finding there that a person alleging blood feud must establish inter alia that: (a) his profile as a potential target of the feud identified and the threats associated with this; (b) the strength and reach of the family/clan pursuing the Claimant;

In depriving the Claimant of the opportunity to adduce external potentially corroborative expert evidence relating to his individual circumstances of risk and sufficiency of protection, the Defendant failed to avail herself of all the necessary information about the Claimant’s circumstances to make a lawful and fair determination as to whether his claim was clearly unfounded.

The Defendant has also deprived the Claimant the opportunity of adducing evidence to rebut the presumption under section 94(1), NIAA 2002 that an asylum claim from Albania would be clearly unfounded.

It is important to focus on the evidence of which the Claimant says he has been deprived. Although there was some mention of evidence from Albania (to which I shall revert) it was clear that the gravamen of the evidence that the Claimant says he wishes to rely upon is evidence either relating to the exact terms of the threats made to him (including in particular the 999 call recording of the call made by Mrs G during which she is alleged to have specifically threatened the Claimant with a blood feud) or which will eventuate following the outcome of the trial of the X family, which was originally scheduled for mid-2016 but is now due to occur in a few weeks. The 999 call in particular has been referenced in each of: the Claimant’s Further Representations dated 5 October 2015, Pre Action Letter dated 2 October 2015, ‘SEF Interview’ dated 28 September 2015 and the Letter dated 21 September 2015.

The Claimant submits that this evidence is central and that the Defendant could not have failed to have known and understood that that evidence was sought and was critical.

The Claimant argues that this case is not, as the Defendant suggests, one where an uncertain extension is sought for uncertain evidence. The evidence comprises the 999 transcript and the facts as found in the perjury trial and the window for that evidence is defined if not perfectly certain. To the assertion that the evidence could make no difference, the Claimant says that this is to make an unjustified assumption, since it cannot be known what evidence will come out of the perjury trial.

The Claimant prays in aid in this regard the beautifully expressed dictum of Megarry J in John v Rees [1970] Ch 345, 402:

The Claimant also says it ill becomes the Defendant to take this point when she could have asked police to provide an authoritative answer at least as to the 999 call contents.

The Claimant refers me to a number of sources in support of the submission that extending time to permit of adducing this evidence was what the Defendant’s own Policy required. He points me to the section of the DII Policy which indicates that if there is a need to obtain further evidence the appropriateness of detention should be reviewed, the Interim Process Map which says particular care should be taken where applicant may require time to extend the period for making submissions and that the applicant should be given reasonable time to provide further information subject to a deadline identified at the end of the substantive interview, which may still be extended if appropriate.

The Claimant submits that the reason why the DAC system was found to be fair in Hossain was that flexibility is at the heart of operation of the system. The correlate of that, he says is that for the process to be applied fairly flexibility needs to be applied as was apparent in the judgments in Hossain:

So far as Albania and Albanian evidence is concerned, the Claimant essentially deployed two points. The first was to suggest that the authorities indicate that blood feud cases inherently require external corroborative evidence to be established and that the Defendant (by its system) had failed to permit reliance on Albanian evidence. There was also an attempt to rely on an outline of expert evidence which might be adduced, essentially in support of the same point and to illustrate the kinds of evidence which might be deployed. This point was not maintained however as Mr Halim rightly conceded in oral submissions that EH does not provide authority for the proposition advanced.

The other point, which was strongly maintained, was to suggest that the Defendant had fundamentally misunderstood the nature of blood feuds by her reference to the absence of killings in the Decision Letter and the questioning of the Claimant by reference to the non-existence of any killings. I was directed to the headnote of EH which states: “… Kanun blood feuds have always allowed for the possibility of pre-emptive killing by a dominant clan.”

The Defendant’s case on refusal and certification drew to an extent on the background to the decision under review. Ms Patry for the Defendant reminded me that not only is the Hossain case authority for the proposition that the DAC process is prima facie lawful and not inherently unfair but also that Cranston J in that case accepted the Defendant’s evidence that she needs a process for detention pending determination of asylum claim.

However the correlate of a system which involves detention pending determination of asylum, in the light of the authorities on detention, is that the system has to be one which makes decisions in an accelerated fashion. This means therefore that the DAC involves conducting a balancing exercise between acceleration and flexibility regarding adducing evidence. She submits that expedition in these circumstances takes priority over flexibility. Mr Halim for the Claimant rejects this submission saying that where detention cannot be squared with flexibility the Defendant has (and should take) the option of release.

Where the balance lies in general between the competing requirements of expedition and flexibility is plainly not a question for this case.

However I note the framework which the Defendant relies on, which demonstrates that under the DII section 1, 28 days is set as an initial target for determination of DAC cases. The Interim Process Map (“IPM”) then makes provision for extensions to timescale (as did happen in this case as regards the substantive interview).

The Defendant submits that while the system makes provision for the offer of more time where it is appropriate to do so that does not mean (as she submits the Claimant contends) that an extension must be offered whenever requested. Whether it is appropriate to grant such an extension involves consideration of all the factors by a caseworker; but a key factor will be whether that evidence will be, will be likely to be or might be of relevance.

The Defendant submits that here the question for the court is whether the decision that the request was not of such relevance that period should be extended, was in breach of policy, or irrational. Or to put it another way, whether, by failing to allow him time to adduce this evidence, the Defendant failed to avail herself of all the necessary information about the Claimant’s circumstances in order to make a lawful decision about whether the claim was clearly unfounded.

The Defendant in meeting this point relies essentially on two strands of argument. The first is that the evidence sought to be relied on could make no difference because the Defendant did not challenge the credibility of the Claimant’s assertion that he had been threatened by his ex-partner’s mother, or that he is involved in an ongoing criminal investigation. She says:

The whole decision is premised on the basis that the violent incident took place and that a threat to his life was made during that time. It is also premised on the basis that what he says about his mother being contacted by the family prior to the violent incident taking place also being true. There was therefore no need for further documents to establish the existence of the blood feud threat.

It is very hard to see how the documents relating to the criminal case/the perjury case could have added anything of any materiality so as to give a prospect of leading to a different outcome. They could have had little bearing on a Decision Letter which had already accepted his account of the key allegation and were unlikely to add anything external to this point. The perjury trial can only be being pursued on basis that the X family lied to the court at the Claimant’s assault trial and the only possible issue which pertains to that which is relevant to the Claimant’s asylum claim is what they said threatening him. The Defendant submits that the Claimant is unable even now to identify any piece of evidence that could have some out of waiting for it.

Secondly it is submitted that it is plain that the asylum claim was refused and then certified because in essence even accepting at face value that the Claimant had been threatened, there was no “blood feud”, let alone an active blood feud, applying the definitions contained in both the relevant country guidance and the case of EH (Blood Feuds – Albania). Apart from one occasion before the violent incident, the Claimant’s family had been neither contacted nor threatened and following the incident, neither the Claimant nor his family had been threatened, no one had been harmed or killed, and no one was in self-confinement.

By way of back up argument the Defendant submitted:

Even if there was an active blood feud, the Claimant had not established that he could not internally relocate in Albania, away from his ex-partner’s family. The Claimant had not substantiated that the claim that his ex-partner came from a large and influential family, such as to negate the possibility of internal relocation; and

There was no reasonable basis for concluding that in the event that there was a blood feud, the authorities could not provide sufficient protection.

In sum she says when one poses the question of whether it was unreasonable to take the view that this was an appropriate case for extending time, the only answer is that it was reasonable in all circumstances not to extend time because the Defendant had already concluded she would take the Claimant’s account of the threats at face value and the evidence sought was unspecified and logically likely to be of no value and would only emerge in an unspecified time.

Ms Patry conceded that the position might be different if the Claimant had sought Albanian documents or asked for time to lodge an expert report, but this was not the case here. Though there has been some mention of Albanian documents, this was not part of what the Claimant said at the time he wanted to submit. Moreover had he wanted to submit such documents he could have done so in the time available.

As to the second question, of whether the Defendant’s conclusion that the threats did not amount to a blood feud was unreasonable or in breach of guidance, the Defendant contends that the materials suggest that a blood feud requires more than the mere fact of a threat. Ms Party referred me to the relevant Country Guidance which shows there is a difference between a threat and an “active blood feud”.

This is echoed in EH to which she also referred me, which states

The Defendant also relies on paragraph 1.4.1 of the Guidance which states that “blood feuds are normally triggered by a murder or other serious offence carried out by the person’s family”.

The Defendant submits that she was therefore perfectly entitled to conclude that the facts of this case did not come close to amounting to active blood feud.

In terms of the failure to extend time for further evidence I am quite satisfied that there can be no complaint relating to Albanian evidence or expert evidence. It is plain from the contemporaneous correspondence that the Claimant was seeking to rely on materials relating to the police investigation and the trial (initially materials from his criminal trial, but later the perjury trial also).

There is also no ground for saying that the Defendant did not comply with her own Guidance; save to the extent it might be said that she should have exercised her discretion to extend time further. On this narrow issue, in order to impeach the Defendant’s decision making in this respect on rationality grounds it would in my view be necessary for the Claimant to establish that the evidence at least might have an impact on a relevant finding in the Decision Letter.

On this point I accept the Defendant’s submissions it is hard to see how this can be the case when it is plainly correct that the Decision Letter does not dispute any of the facts surrounding the allegation of blood feud; what is disputed is whether the facts relied on constitute sufficient evidence to establish a blood feud. On this, the Defendant does rely on the facts that there is no formal declaration, or later evidence of repetition or evidence of problems for the Claimant family in Albania as well as no killings. These matters however are not in issue and the Claimant does not suggest that the specific evidence sought to be added would address them.

The particular focus of the Claimant is the 999 call and the specific threat made in that call; however given the terms of the Decision Letter (“Her mother made the threat to you and told you that if you were ever to go back to Albania you will be killed. They are now treating this as a blood feud because they made it clear that if you ever left their daughter then you “owe them blood” this would only add more detail to facts which are already accepted, and would therefore add nothing material – nothing which might conceivably make a difference to the decision.

As to the question of the existence of a blood feud, to the extent it is alleged that the decision that there was no blood feud is irrational I consider that it is quite clear it was not, even allowing for the careful scrutiny for which this type of decision calls.

In a careful and detailed Decision Letter (only a minority of which is quited above) the Defendant evaluated the evidence in the light of the relevant guidance and authorities. What appears to be demonstrated by this is that:

There was certainly not a blood feud within the usual parameters;

In this case all that was relied on by the Claimant was the existence of a threat to the Claimant and an earlier warning to his mother.

This does not, in my judgment, fulfil the requirements indicated by the Guidance and authorities. While, as the Claimant submits, a blood feud may not require a death to be initiated (though the cases seem to suggest at least one death or other serious crime will be the hallmark) some evidence of real risk of harm must be needed to clear the hurdle of establishing an active blood feud. The Claimant’s case comes close to saying any allegation of blood feud must result in asylum status. This is plainly not justified by the authorities.

It follows that in my view that the Defendant’s conclusion that there was no blood feud was plainly not irrational. On the contrary it appears to be an exemplary conclusion.

As for the back-up argument relating to internal relocation and sufficiency of protection I would if necessary have found that, in the light of the conclusions on these issues which cannot be said to be irrational based on the materials available to the decision maker and the assessment of them evidenced in the Decision Letter the Defendant’s decision would have been highly likely to be the same even if the conclusion on blood feud did not withstand scrutiny.

In considering this issue the Claimant cited well known principles:

The power of the executive to administratively detain without charge or trial is one of the most draconian powers exercised by the state over the individual: R v Home Secretary ex parte Khawaja [1984] AC 74 per Lord Bridge at 122 E-F, R (Lumba) v SSHD [2012] 1 AC 245 [341], “freedom from executive detention is arguably the most fundamental and probably the oldest, the most hard won and the most universally recognised human rights”

The Court is under a correspondingly high duty to “regard with extreme jealously any claim by the executive to imprison a citizen without trial” Wasif Mahmod [1995] Imm AR 311, at 314.

The burden of proof is always upon the Defendant to justify detention.

The wide statutory powers to detain are therefore constrained by implied limits contained in the well-known principles laid down in R v Governor of Durham prison ex parte Hardial Singh [1984] 1 All ER 983 and R (I) v SSHD [2003] INLR 196 at page 208.

Those principles, endorsed by the Supreme Court in Lumba, are 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.

The following further factors were identified in Lumba as relevant in applying Hardial Singh principles:

Judging what is a reasonable period of time depends upon the facts of the individual case and there is no exhaustive list – it includes the conditions in which the detained person is being kept and the effect of detention on him/her;

The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.

However, the relevance of the likelihood of absconding, if proved, should not be overstated lest it become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention.

In applying the Hardial Singh principles the Court makes its own judgment and is not reviewing the rationality of the Defendant’s decision that the detention and its duration is reasonable in all the circumstances. This is a precedent fact question for the Court: A v Secretary of State for the Home Department [2007] EWCA Civ 804 at [62] and [71].

The Claimant’s case on this issue as advanced prior to the hearing had two limbs:

The Claimant was not removable where he had a pending asylum claim before the Defendant, and that claim was very far from unmeritorious. This issue, it was accepted, must be parasitic on earlier issue and therefore needs no further consideration.

The second limb was essentially that the Claimant was not an absconding risk. It was said that:

The Defendant’s Enforcement Instructions and Guidance at Chapter 55.1.4 acknowledges that those with outstanding claims for asylum have more incentive to comply with conditions set for their temporary admission/release than those without any such representations. The Claimant has at all material times had such a pending application.

There is no evidence that the Claimant poses a risk of harm to the public, nor a risk of absconding, given his unique supervision by the Metropolitan Police.

Moreover, the Claimant has a very clear incentive to assist with the perjury investigation.

In the context of absconding the Claimant also prayed in aid (as tending to negate the points against him) the fact that:

He did not claim asylum simply because he had been arrested. He claimed asylum after he being acquitted of a charge of Actual Bodily Harm.

That claim arose out of the malicious prosecution brought by a family who are now being investigated for charges of perjury;

The Claimant is now providing important assistance to the Metropolitan Police (who plainly consider him an honest person), at his own risk, in pursuing perjury charges.

He has now been at liberty for over a year and has reported, indicating that he is not an absconding risk.

For the first time at the hearing the Claimant sought to advance his case both by reference to particular periods of detention and by reference to the detention records, thereby broadening out the case from the character it bore in the Grounds.

In terms of the periods of detention, the Claimant identified four dates at which he submitted that detention became unlawful:

From the point he made an asylum claim on 1 September.

From the 21 September temporary admission application.

From 2 October 2015 when he notified the Defendant that he was involved in the perjury investigation and needed more time.

From 5 October when the Claimant made the point once more that he sought to wait for further evidence.

In terms of the specific points on the detention reviews the Claimant made the following points:

As at 1 September and thereafter the detention reviews refer to outdated (and incorrect and prejudicial) factors - in particular identifying the Claimant as a medium risk to the public by reference to the assault of which he had been cleared and referring to a history of criminal activities;

Until 7 September his removability was rated low. It thereafter moved to medium, not graduating to high until 7 October

It was apparent that there was a bar to his removal in that he was needed as a witness in the perjury trial, and the police’s interest in his presence (and latterly the possibility of an application by the police) was noted.

Overall the Claimant submits that when one traces through the story of detention it becomes untenable because the assessor addresses its mind to irrelevant factors, the Claimant's removability was low; and it is said that this case becomes ever stronger as more evidence that needed for trial leading to a suggestion of an application for an injunction by the police.

On the errors the Claimant submits that these are critical in the setting of a judicial review. He draws to my attention the authorities which state that detention reviews are “essential to the legality of a temporally unlimited and otherwise unchecked power to continue detention” and “an important safeguard”: SK (Zimbabwe) v SSHD [2011] UKSC 23, [2011] 1 WLR 1299; “In a field which concerns a fundamental human right… close scrutiny must be given to the reasons provided as justification for interference with that right.”: R v SSHD ex p Bugdaycay [1986] UKHL 3, [1987] AC 514 at 534A.

The Defendant's case is that for the reasons already given, the detention case based on the asylum claim is not a meritorious argument, and that the Defendant was entitled to conclude the Claimant was an abscond risk.

Proceeding by reference to the Hardial Singh principles the Defendant says that the Claimant was detained under a process that was fair and lawful and in particular:

It is not in issue that the Defendant had power to detain the Claimant and intended to remove him;

The detention did not thereafter become unlawful:

This was not a meritorious claim for asylum and never provided a basis on which to release;

The Claimant was not unsuitable for DAC, a process which Hossain establishes the Defendant is entitled to adopt;

The Claimant was not a child or vulnerable person;

The Claimant came from Albania, an NSA country to which speedy deportation is possible;

The period of detention was not unreasonable given the intent to deport within a short period of time and the facts regarding the Claimant which indicated he was an absconding risk, absconding being a highly relevant factor in this context. The Defendant points me to the facts that:

The Claimant entered the country illegally

He made no attempt to regularise his stay; at best his excuse for not doing so was to perpetuate someone else's fraud. Furthermore asylum was not the only basis on which he could have sought to regularise his position;

He had no ties to UK.

So far as concerns the errors in the documents, the Defendant concedes the existence of such errors but submits that these are of no relevance for two reasons.

The first is that the decision maker was plainly aware of the true facts and the decisions to maintain detention were always made by reference to correct reasons for detention, indicating that any errors were not taken into account or were not material factors. So while the erroneous entries appear on the forms the recommendations throughout cited correct and relevant material: his illegal entry, liability to deportation, lack of ties, presumption in favour of release and assessment of absconding risk.

The second is that, since the issue is one of precedent fact, not review (as the Claimant submits) the errors are not relevant; what matters is whether the Hardial Singh test is satisfied at the relevant times.

Dealing with the specific points in time, the Defendant says that:

As at 1 September 2016 the Claimant was suitable for detention and could be anticipated to be removed speedily subject to clarifying the position on asylum, and this is reflected in his acceptance into the DAC scheme on 7 September following which his removal could be anticipated somewhere in the target range of 28 days;

As at 21 September 2016 the application for time to submit more evidence could not make a difference to his swift removability in circumstances where the Defendant did not accept the necessity for this evidence;

As at 3 October 2016 the decision to allow a short further time for submission of documents could not affect the legitimacy of maintaining detention;

As at 5 October 2016 again the unaccepted request for further time could not affect removability, which was by this stage imminent.

As for the reliance on the police interest in having the Claimant in the jurisdiction, this was in no way a barrier to removal either legal or practical in the absence of a court order or (possibly) a formal request.

Generally the Defendant submits that to the extent that the detention reviews are relevant they are, in essentials, impeccable. It is accepted that there are one or two erroneous references but generally speaking all relevant considerations are demonstrated and the approach in general terms is as close to faultless as possible.

On this issue I conclude that while it is understandable that the Claimant is not happy about the terms in which some paragraphs of the detention reviews were erroneously phrased, and while it is plainly not satisfactory in the context of decisions about liberty that inaccurate materials should be referenced, in this case it is apparent that the decision to detain and the later decisions to maintain detention at the points identified by the Claimant clearly did not offend against principle.

The starting point is that the Claimant was properly detainable by the Defendant, and was also properly accepted into the DAC, under which regime the Defendant would be prima facie entitled to conclude that there was a good prospect of removal speedily and hence in a reasonable period.

Secondly it is not necessary as a matter of law for the Defendant to be able to actually identify specific timescale within which removal can be effected. As Richard LJ said in R(MH) v SSHD [2010] EWCA Civ 1112 at [65]:

In this case therefore, absent an obviously meritorious asylum claim or other bar (such as an order from the police) the Defendant’s conclusion that there was a reasonable prospect of expeditious removal was correct as a matter of application of the principles and on the facts. The prospect of removability would naturally be greater as the process under the DAC progressed – unless an apparent bar emerged.

In this connection so far as concerns the police's interest and indeed their possible order, one must bear in mind that in R (Mugtaar) v SSHD at [36] Richards LJ emphasised that the use of the word "apparent" in the approved version of the Hardial Singh principles imports that it is not enough for an inability to remove to be possible. This is relevant here. In this case it is clear that there was not an order in place preventing removal, but it is clear that the Defendant was considering the position of the police and was aware that the police had indicated in October that they would like the Claimant to be in the country and in mid-November that they were minded to apply for an order seeking to halt deportation in early December. This factor in my view goes no higher than importing a possibility that at some future date (after all the relevant dates relied on) an inability to remove might become apparent. At none of the relevant dates did it amount to a factor which rendered it apparent within the meaning of Hardial Singh that the Defendant could not remove the Claimant in a reasonable time.

On the question of whether the period of detention was a reasonable one, I conclude that it was. On the face of it the Claimant, as an illegal entrant without ties who had only attempted to regularise his position once encountered by the immigration authorities, must present as an absconding risk. He might not be the highest level of absconding risk, but it would be imprudent of the decision maker not to assume some risk of this sort.

As to the alleged supervision by the police and incentive to report because of the perjury trial, neither of these factors seems to be evidenced. There was no evidence of police supervision and the submission that involvement in the investigation provided an incentive to comply, rather a neutral factor or a factor in favour of decision to abscond, appears to be speculative. Further the decision maker cannot be criticised for not taking into account the later fact that the Claimant has proved amenable to reporting conditions and nor can I properly take that factor into account: R (Rashid Hussein) v SSHD [2009] EWHC Admin.

As Lumba makes clear, the risk of absconding is a factor of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. Here absconding risk is not counterbalanced by a meritorious asylum application. Nor is there a particularly long period of detention, against which to weigh the absconding risk.

This brings me to the question of the relevance of the errors. The exact relevance to the Lumba test and to my review was not specifically addressed. Such an error might plainly be relevant if it was causative of the decision to detain or to maintain detention. It might also be relevant if it was likely that it was a factor in detaining or maintaining detention. However in circumstances where:

The appropriate test on any measure indicated that detention was appropriate and maintainable because of the Claimant's susceptibility to detention, suitability for the DAC and absconding risk;

There is nothing in the detention records which indicates that the errors were relied on as part of the decision to maintain detention;

The decision to detain/maintain detention would plainly have been the same if the correct facts had been included in the detention sheet;