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:

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:

“In the light of all the evidence available, I have decided that you have not established a well-founded fear of persecution so you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended).

I have also decided that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK so you do not qualify for Humanitarian protection.

Therefore, your claim has also been refused under paragraph 339F of the Immigration Rules. …

6.

You state that you cannot go back to Albania as a result of the threats that were made to you by the family on the date of the incident (AIR 34). You claim that they have a big family in Albania and that they have jobs in the government (AIR 34). You do not know exactly who works in the government but her uncle works for the police in Tirana, you do not which police station (AIR 47- 51). 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” (AIR 36- 38).

7.

You claim your mother was threatened in Albania before you were detained due to the same reason that you wanted to leave [Ms X] (AIR 53, 54).You claim that you cannot move to another part of Albania as her family work on behalf of the state and that they will be able to trace you wherever you go (AIR 66). Furthermore, you know [Ms X]’s family to be criminals as they deceived the courts by giving false statements and making the judge believe that you had instigated the attack in February 2015 (AIR 70). You claim that you pressed charges for the stab wounds you received and the case is on-going, you do not know the date of the trial (AIR 71- 75).

8.

You fear [Ms X]’s father and his six brothers (AIR 101- 105). You claim her father threatened you by telling you that his brother, [X] had killed someone in Albania and the same would happen to you if you returned to Albania.

Future Fear

9.

You fear that were you to return to Albania that you will be killed by your ex-girlfriend’s family (AIR 36)….

18.

Although your claim has been considered at face value this is not a concession that your claim has been accepted.

19.

You have claimed that on return to Albania you will be killed as a result of being a target of a blood feud. However, it is noted that there have been no killings and neither has there been a declaration of a blood feud. Whilst you claim that threats to you have arisen out of the incident on 01 March 2015 in London, it is noted that since this date, neither you or your family have had any contact with your ex-girlfriend’s family. Whilst you claim that during this incident your ex-girlfriend’s family threatened to declare a blood feud, it is noted that since that date nothing further has occurred i.e. a declaration of a blood feud either in person or via a third party. It is your claim that her family live 2 minutes from your home in Albania. Yet despite this proximity, your family in Albania have not had any contact from your ex-girlfriend’s family. It is therefore considered that your fear of your ex-girlfriend’s family and your fear that a blood feud has been declared is based wholly on your own speculation.

20.

What constitutes act of persecution has been defined by Article 9 of European Council Directive 2004/83/EC (Qualification Directive). An act of persecution must be either sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right.

An act of persecution must be either:

(a)

sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b)

an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect and individual in a similar manner as specified in (a).

24.

When considering your claim you have not demonstrated an objectively well founded fear of persecution or a reasonable degree of likelihood of such fear being realised upon return to Albania. Your claim is mainly based on speculation. It is noted you claim to have received only verbal threats and you have dismissed the prospect of seeking protection of the Albanian authorities.

25.

Your fear of persecution on return to Albania has been noted. However, in order to qualify as a refugee under the Geneva Convention, you need to demonstrate a well founded fear of persecution for a Convention reason and a reasonable degree of likelihood of such fear being realised on your return as determined by the case law of Sivakumuran [1987] UKHL 1, which you have failed to do. It is therefore considered that you can return to Albania. Consideration will now be given to sufficiency of protection available to you on return to Albania, as well as the option of internal relocation within Albania.

26.

Consideration has been given to your risk on return to Albania, as you state you are involved in a blood feud. The case law of EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC) states:

“In determining whether an active blood feud exists, the fact-finding Tribunal should consider:

(i)

the history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;

(ii)

the length of time since the last death and the relationship of the last person killed to the appellant;

(iii)

the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania; and

(iv)

the past and likely future attitude of the police and other authorities towards the feud and the protection of the family of the person claiming to be at risk, including any past attempts to seek prosecution of members of the aggressor clan, or to seek protection from the Albanian authorities.

27.

It is noted from your account that your problems and your claim of a blood feud stems the breakdown of your relationship with your ex- girlfriend. However, given that there have not been any killings, there has not been a declaration of a blood feud and your family are not in self-confinement, it is concluded that you and your family are not involved in a blood feud. It is considered that you can seek the help of the authorities in Albania and you have not been able to substantiate your claim that your ex- girlfriends family are as influential as you claim. As you have failed to substantiate this aspect of your claim, it is considered speculative.

28.

It is therefore not considered that you would face persecution on return to Albania, and that if you encounter any problems you can approach the Albanian authorities for assistance. Additionally, it is considered that you have the option of internal relocation.

91.

In addition, your asylum claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your claim is clearly unfounded unless satisfied that it is not clearly unfounded. After consideration of all the evidence available, it has been decided that your claim is clearly unfounded. Therefore, it is certified under section 94(1) of the Nationality, Immigration and Asylum Act 2002 that your claim is clearly unfounded.”

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:

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:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

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:

“150.

Against that background there is then what the policy expressly provides. First, it says nothing about how substantive asylum claims are decided: that is in the ordinary way in accordance with the Asylum Instructions. As to process, I noted earlier that the DII makes clear on its face that caseworkers should consider requests for more time, for example to obtain documents or translations. That as a matter of interpretation means that if for valid reasons the asylum claim really needs more than the 28 days set down in the Process map , this will be granted and the officials managing detention will reconsider whether detention remains appropriate under Hardial Singh principles and Chapter 55 of the EIG . Moreover, the Process map indicates flexibility in other ways: in paragraph 7 the timescale for the asylum interview is “a rough guide”; in paragraph 8 “normally” up to 5 working days will be given for submitting further evidence and information in support of a claim and more time can be given, if appropriate; and in paragraph 9 the caseworker and applicant should “agree” a deadline for further evidence. This policy of flexibility is underlined in Ms Samedi's statement.”

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:

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:

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

“1.

While there remain a number of active blood feuds in Albania, they are few and declining….

5.

Where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for Refugee status.

6.

In determining whether an active blood feud exists, the fact-finding Tribunal should consider:

(i)

the history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;

(ii)

the length of time since the last death and the relationship of the last person killed to the appellant;

(iii)

the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania; and

(iv)

the past and likely future attitude of the police and other authorities towards the feud and the protection of the family of the person claiming to be at risk, including any past attempts to seek prosecution of members of the aggressor clan, or to seek protection from the Albanian authorities.

7.

In order to establish that there is an active blood feud affecting him personally, an appellant must produce satisfactory individual evidence of its existence in relation to him. In particular, the appellant must establish:

(i)

his profile as a potential target of the feud identified and which family carried out the most recent killing; and

(ii)

whether the appellant has been, or other members of his family have been, or are currently, in self-confinement within Albania. ….”

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:

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

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

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:

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

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:

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:

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]:

"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." (see also R(Mugtaar) v SSHD [2012] EWCA Civ 1270 at [35]).”

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: